On The Legal Issues Of Transfer Of The Land Use Right Of House Sites

The core of the "agriculture-country- peasant question" is the issues of the rural land. The development of agriculture, the stability of the country and the protection of the peasant’s right all unfold around the issues of the rural land. The peasant’s right on the land is the most fundamental right and it is the premise and basis of other rights because it is concerned of the survival and development of peasants. In the cluster of land rights, the land use right of house sites is an important right which influences the effectiveness of the former, and this is the critical fundament to study this issues in the article.The property attribute and resource nature determine the private law and public law characteristic during the enactment of the land right and the construction of the land institution. In part, the land question is never a pure private law issues in modern society. Hence, the article researches the land use right of house sites and its transfer from the perspective of intervention of the power not just form the angle of property law. On the basis of recognizing the use right nature of the land use right of house sites, the transfer of the right should be included in the scope of intervention of power which bring the dual objectives of right protection and public regulation of land into truth. Based on this opinion, the article discusses the transfer of the land use right of house sites from two perspectives. First, the article analyzes the transfer issue form property law on the use property right basis. Second, discusses this question form the economic law angle which is the basic law form of intervention of power, and emphasizes the facts of moderate intervention according to the rules of "law of land regulations". In general, the article is divided into three parts as follows:In the first part, the article discuss the current theory dilemma and its outlet of the land use right of house sites. In chapter one, the article demonstrates the basic composition of the institution of the land use right of house sites including its contents, rules and characteristics of it from the perspective of history. Then, the article analyzes three dilemmas in current institution of the land use right of house sites, and the fundamental method is allow ance of transfer of the land use right of house sites. In chapter two, the article demonstrates the theoretical basis of the transfer of the land use right of house sites, then answers the question of why needing transfer. Before that, the article combs the discussion about the transfer of the land use right of house sites in theorists. The article thinks that it is necessary to construct a unitary legal regulation which is both benefit the protection of the benefits of the peasants and achieve the goal of intervention of power. Then, the article proves the question of why needing transfer from two theoretical perspectives. On the one hand, form economics angle, the article applies the efficiency theory to prove it, which not only comply with the property theory, but also overcomes the question of externality. On the other hand, the article certifies that the prohibition of the transfer of the land use right of house sites is not consistent with the substantial request of configuration of justice.The second part of the article demonstrates the implicit transfer and transfer pilot of the land use right of house sites from the empirical perspective so as to establish the fundament for constructing the reasonable transfer mechanism of the land use right of house sites. Chapter three discusses the implicit issues during the transfer of the land use right of house sites. The article first analyzes the overview, characteristic and disadvantages of the transfer of the land use right of house sites, then applies the theory of institution evolution to the analysis of the transfer question on the basis of empirical examination. Chapter four analyzes the transfer pilot form the empirical perspective. The article choice three models, that is Chengdu Model, Chongqing Model and Tianjin Model, then introduces its main practice, assesses them briefly. Through this part, the article finds that there are many deficiencies, such as imbalance of the peasant’s benefits and the passivity of the participation.The third part discusses how to transfer the land use right of house sites. The article analyzes the legal regulation about this issue, that is, the intervention of power is the indispensable part of realizing the transfer of the land use right of house sites. There are several aspects should be included in the framework of intervention of power during the transfer of the land use right of house sites. The first one is the premise set. The second one is about the methods which can suit to different circumstances. The third one is the question of distribution of benefits. In the end, the relevant supporting rules should also be considered.