Research On The Construction Of The System Of Homestead "Use Right" In The "Three Rights Division"

House-site in the countryside,high rate of idle land resource utilization is low,a family house,house sites prevailed in private transactions problem is before start the land system reform in China,such as rural land use present situation,the root cause of this phenomenon lies in the current civil law system in our country did not provide social main body into the system of rural homestead right way.Published in 2018,therefore,the central file number one requirement each pilot actively explore"qualification of land ownership,land rights,the right to use house sites’’implementation of separation of division path,through the land reform of"separation of division "to coordinate the different interests of different groups,to ensure that the homestead can continue to play its on farmers’ social security function at the same time,By combining with the rural revitalization strategy,the property value will be released,so as to provide channels for the social subject to make use of idle rural homestead and housing,so as to increase the property income of farmers.Increased to reform experience from the top-level design of homestead"separation division" has not yet been legalization,as a result,the homestead "rights"into the specific legal system,should first clarify its and the difference of housing land use right in the civil code,after combined with practical experience in the theory of the reform of policy document of how to define the legal nature of rural homestead "rights";How to construct the basic content of right to the use of curtilage;How to clarify the right boundary and right relationship between homestead ownership,homestead qualification right and homestead "use right".In this paper,literature analysis,normative analysis and case analysis are adapted,taking the reform spirit required by the central government as the benchmark,demonstrates the right mechanism of "three rights divided" of homestead in line with legal logic at the level of legal theory,aiming to prepare for the future transformation of the policy of"three rights separation" into legal norms.This article mainly is composed of four parts,to discuss "separation division" of the system of rural curtilage "rights" in the legal system construction:the beginning of the paper is about the basic overview of the "three rights divided" of house site,mainly stated the concept and characteristics of the land and the land,this paper expounds the homestead "separation division" puts forward the reasons and the main content of "separation of division".Under the current land system,subject to the provisions of laws and policies in land use right transfer of limited scope,so that the homestead presents the idle land resources and invisible trade state of two extremes,and because no clear legal provisions,judicial attitude to the effectiveness of the stealth transactions that are not unified,based on this,The central government drew on the experience of the reform in Yiwu,Zhejiang Province,and put forward the reform of "three rights divided" in order to give consideration to the security function and property value of homestead.The second part analyzes the practical experience provided in the reform of right to the use of curtilage in typical pilot areas.At present,the understanding of right to the use of curtilage in different pilot areas is not the same,which leads to the establishment of right to the use of curtilage,and the scope and period of right transfer are different.From the reform models of Yiwu in Zhejiang Province,Gaoling District in Xi’an City and Luxian County in Sichuan Province,we can see that the understanding of the qualification right of homestead determines the discussion direction of the nature of right to the use of curtilage.Based on the problems existing in the reform practice,only rebuilding the curtilage"use rights" system can protect the rights and interests of farmers.In the third part,first analyzes the shortcomings of the homestead qualification right according to the relationship between the farmers’ collectives and members and the right content of the curtilage qualification right.The nature of the qualification right should be defined by the right to use the curtilage in the current law.Then,from the perspective of the property right of creditor’s rights,it evaluates the irrationality of the current characterization of the "right to use" of homestead as a creditor’s right.Through analysis,can be established in the civil code about the content of the easement for reference,to the curtilage as the object on the curtilage use right to set a usufructuary right,the construction of the curtilage "three separation" legal structure namely the curtilage ownership,usufructuary right of curtilage use rights,usufructuary right of homestead "use right" can achieve the reform goal.The fourth part constructs the system of rural curtilage "use" the specific content,discusses the establishment of the"right to use" of the curtilage according to whether there are houses on the curtilage,analyzes that the subject of obtaining the "right to use" of the curtilage should have no identity restrictions,and the registration of the "right to use" of the homestead should adopt the principle of registration effectiveness and use the homestead according to the registered purpose.The duration of the rights should not exceed 40 years in comprehensive consideration,analyzes the establishment and implementation method of the hypothecate of the "use right" of homestead,the possible causes and elimination of the "use right" and the legal consequences.The creativity of this thesis mainly lies in the following two points.First,this paper demonstrates that the idea of "right of use" of curtilage is novel.By analyzing the example that the usufructuary right holder can set up easement for the person in need on the land owned by others in the Civil Code,this paper demonstrates the feasibility of the usufructuary right holder to set up the usufructuary right conception for the social subject on the homestead,which does not violate the principle of one thing,one right,and responds to the principle of property right legality in the Civil Code.Second,with the existing provisions on the use right and land management right of state-owned construction land as a reference,the basic content of the "use right" of homestead is initially constructed in combination with judicial practice.The deficiency lies in that the current "three rights division" of curtilage is still in the regional pilot stage,and the theoretical circle also focuses on discussing the legal nature of the "right to use" of homestead and the overall structure mode of the "three rights separation" of homestead,with less discussion on the construction of the specific system of rights,so that there is less literature to learn from,and the overall focus of the article is not prominent enough.To sum up,the "three rights distribution" of homestead balances the conflict between social welfare capabilities and the property value of homestead,which will not make farmers lose the final security due to the transfer of the right to use homestead,and can realize the property value of homestead,provide a financing channel for farmers,and respond to the realistic needs.