| The right to use homestead itself has the function of protecting farmers’ residential rights and interests,and has a certain social security attribute.It is a very important usufructuary right in China.Whether the right to use homestead can be inherited or not is currently not stipulated in relevant laws in China,such as the “Land Management Law” and the “Civil Code”.At the same time,the policies related to the homestead use right system are neither uniform nor have specific and complete documents explaining its inheritance rules.The “Interim Measures for the Administration of Rural Homestead Sites(Draft for Comments)” was issued on November 28,2022,and is currently in the review stage and has not been officially announced.The public draft for comments only provides answers to some issues regarding the inheritance of the right to use homestead sites,but it is slightly inadequate to address the emerging issue of inheritance of the right to use homestead sites.On the issue of inheritance of the right to use homestead,there are currently three mainstream views in the academic community: one is to support its inheritance,one is to oppose its inheritance,and the other is neither to deny nor support it.All three views have certain rationality,but also have certain flaws.From the case analysis,it is found that the unclear definition of “household” in the principle of “one household,one residence” leads to the unclear subject of the right to use homestead,resulting in the difficulty of inheritance of the right to use homestead,which is the fundamental reason for many disputes in judicial practice about whether the right to use homestead can be inherited.The relationship between houses attached to a homestead and the right to use the homestead is unclear.The difficulty in inheriting the right to use the homestead lies in whether the principle of“integration of housing and land” also applies to the homestead.There are different bases and opinions on the inheritance of the right to use homestead in judicial decisions,and there are often cases where the results of similar cases are different.Because of the unclear inheritance rules of the right to the use of homestead,the inheritance of the right to the use of homestead is not consistent in different areas.In particular,in some areas,there is no unified standard to solve the problem of multiple houses due to inheritance and exceeding the legal size.From the analysis on the causes of the judicial practice disputes,we can draw an appropriate conclusion: In order to ensure the legal rights and interests of the right to use the homestead,it is also beneficial to the reform of the land system.This This article thinks that the inheritance of the right to use the homestead has the legitimacy,through three aspects of argumentation,the inheritance of the right to use the homestead is justified.The first is to demonstrate that the inheritance of the right to use the homestead is the right choice from the perspective of the citizen’s legal inheritance right,the house ownership on the homestead and the principle of“one premises”.The second aspect,from the aspect of realizing the orderly development of the right to the use of homestead,proves that the right to the use of homestead itself is non-compensable and the lack of paid withdrawal mechanism,is also an inevitable factor to promote the construction of the rule of inheritance of the right to the use of homestead.The third aspect is the combination of the land Management Law and the Civil Code on the use of homestead,from the homestead use right inheritance conforms to the existing legal provisions,the rationality of its inheritance is analyzed.The suggestions on perfecting the inheritance of the right to the use of homestead start from the two aspects of perfecting the inheritance rules and supporting measures of the right to the use of homestead,write the inheritance of the right to the use of homestead into the law,determine the subject qualification of the right to the use of homestead in the legal level,and give it a complete property attribute.Clarify the scope and method of inheritance of the right to use the homestead,attach a certain period to the homestead acquired by inheritance,cooperate with the improvement of the homestead registration system,grant legal rights to “one family with more than one house” and parts exceeding the legal area,and set up a paid lease period system.Under the principle of voluntainess,it is allowed to hold the houses attached to the homestead.For those who are unwilling or unable to pay the rent,they should be guided to withdraw from the homestead by means of compensated withdrawal subsidies,so as to safeguard their legitimate rights and interests and ensure fairness and justice. |
