On The Modernization Of The Rural Housing Land Use Right In China

The use right of rural housing land means important property for the800million farmers in China, it also applies the basic dwelling condition for them. As for the rural collective economic organization, this use right is derived from the ownership of the rural land. Rural land is also an important part of the whole country’s land resource and has big influence to the economic sustainable development. The use right of rural housing land regime has been established for more than60years, given the great progress in last30years, the social and economic condition which this regime depends on have changed deeply. This paper analyzes this regime by economic, historic and legal methods and gets some conclusion about the development rule for this regime and makes some point about the modernization of the regime. Through the combining theory with practice, the paper offers specific suggestions about the legal nature of use right, the original acquisition of use right, the circulation and protection of use right and the modernization of it.This paper has6parts besides of the introduction. They are the vicissitude of the use right of the rural housing land, the necessity of modernization, the theory foundation of modernization, the innovation of the original acquisition, the circulation of the use right and protection of the use right of the rural housing land. First Chapter makes a comprehensive inspection of how the use right of rural housing land generated and developed. The paper points out that in politics aspect, the reason was the translation from individual to collective organization of farmers which is somehow mandatory. The dual system of householder register between urban and rural regions in planned economic period limit the population movement from country to city. The circulation limit is a temporary result of the special economic period and it must be changed to a more open status.Chapter Two analyzes the necessity and feasibility of modernization of use right of rural housing land regime. The paper expounds that it is inevitable for the regime reformation in a legal and economic view and discusses the practicability by researching the policy and law about use right regime, the social foundation, the household reform and the establishment of rural social security. The paper makes an observation of the reformation in Guangdong province which is a strong reference for innovation.Chapter Three researches the modernization theory of rural housing land use right. After studying all the theory of its legal nature, the paper points out that this kind of use right is a kind of quasi-usufructuary which is different with the traditional usufructuary. With reflection for the politic and social function of the use right, the paper points out that the use right has property and economic function which will be developing with the economic development. This kind of right should be regarded as a civil right and be endowed free and fair value. We should strengthen the regulation of land use to make the circulation in good order.Chapter Four focuses on the original acquisition of the housing land use right. There are many problems in this field which is mainly about the unclear of subject who can get the right; the absence of contract between the two parties; the absence of publicity ect. We should take the membership to be the qualification of original acquisition of use right and clear the requirement of obtaining it. We also should permit the two parties to transfer the right freely and prepare a perfect register system for this circulation.Chapter Five discourses the circulation system of housing land use right. Under the goals of protection the farmland, using land efficiently, coordinating the urban and rural development and meet the need of market economy, we should build the circulation on contract. Besides, the paper also assumes the buy-back and heritage regime of the use right. It also discusses the management of circulation and its profit and the farmland protection in this duration.Chapter Six analyzes the support and salvage mechanism of housing land use right. The paper describes the support mechanism from three aspects including the collective economic organization, the membership of the rural family and the compensation of the expropriation to point out the problems of the current support mechanism and find a way to improve it from giving an examining right to the rural autonomous organization, letting the farmers to supervise and strengthening the lability. We should protect the right of housing land users by making clear the conception of a household, defining the public interest and improve the expropriation procedure. The paper also analyzes the defection of our salvage mechanism from the unclear right and blocked procedure and the bad execution. In order to get a better salvage mechanism, we should make the right clear, improve the salvage procedure, strengthen the jurisdictional interpretation and publish the guiding cases.