| In recent years,China’s homestead system reform has made historic achievements,but there are still many problems in the inheritance of the right to use the homestead,and the resulting contradictions have become increasingly obvious in judicature and practice.China’s Civil Code and Land Administration Law stipulate inheritance and the right to use homestead respectively,which shows our determination to regulate the right to use homestead from the legal level.However,at present,there are still many problems in the provisions of our laws,which can’t meet the needs of judicial practice and protection of the right to inheritance of the parties concerned.Therefore,it is urgent to strengthen the legislation of inheritance of the right to use homestead.At present,there is controversy about whether the right to use homestead can be inherited in academic circles.This paper holds that the right to use homestead has the legitimacy of inheritance and value pursuit.On the one hand,the inheritance of the right to use the homestead is widespread in reality.Allowing the inheritance of the right to use the homestead can reduce the waste of the homestead,and denying the inheritance of the homestead is not in line with the legislative purpose of the homestead in China.On the other hand,whether from the historical source of the right to use the homestead,or from the national policy trend and the relationship between successors and collective economic organizations,the right to use the homestead has the legitimacy of inheritance.Based on the analysis of the current legislation and typical cases in China,there are still some problems in the legislation and judicial practice of inheritance of homestead right.First of all,there are some problems in the legislation of inheritance of homestead right of use,such as insufficient legislation,controversial identity of inheritance of homestead right of use,unclear rules of inheritance of homestead right of use,etc.Secondly,the legislation related to the inheritance of the right to use the homestead is not perfect,such as the subject of the right to use the homestead is unknown;The specific provisions of "one household,one house" are insufficient.Finally,due to the imperfect legislation,there are some problems in judicial practice,such as different judgments on whether the right to use the homestead can be inherited,disputes on the qualification of the inheritor,different understandings of the principle of "one household,one house" by the courts,and different judgments on the same case.In view of the above problems,this paper thinks that we should strengthen the legislation of the right to use the homestead and its inheritance,clarify the subject of the right to use the homestead,refine the principle of "one household,one house",stipulate the scope of inheritance,clarify the inheritance rules of the right to use the homestead,stipulate that the right to use the homestead obtained by inheritance should be attached with a time limit and pay the corresponding fees.In the judicial aspect,measures should be taken,such as issuing guiding cases and unifying judicial standards.To sum up,on the basis of affirming that the right to use the homestead can be inherited,this paper analyzes the problems faced by the inheritance of the homestead right,and puts forward some pertinent suggestions on the legislative and judicial practices encountered in the process of inheritance of the homestead right,so as to clear the obstacles existing in the legislative and judicial process,further protect the parties’ inheritance rights and property rights,and balance the interests of the parties and collective economic organizations,and provide a basis for perfecting the legal regulation of the inheritance of the homestead right in China in the future. |
