A Study On The Transformation Of Rural Homestead Land Rights Into Usufructuary Rights

The Homestead Land constitutes one important part of China’s rural land system, which has certain specialties in terms of the formation, change, and construction of the institutions. With the separation of land ownership and rights to land use, the homestead land system has been regulated by rules guaranteeing its exclusiveness and restricting transferability. Since its generation several decades ago, it has made great contribution to the integrity of land ownership under the collective land ownership system and the sustainability in the supply of rural homestead land, which has ensured the relative stability in satisfying the subsistence needs and enjoyment of rights for members of rural collective economic entity. However, with the rapid economic and social development and dramatic changes in rural life after over two decades of reform and opening-up, the inherent defects of current homestead land system have been exposed gradually. At the Third Plenum of the 18th Congress of Central Committee of the Chinese Communist Party, the Decision on Major Issues concerning Deepening of Comprehensive Reform was adopted. It raised the reform goals of "safeguarding rural household homestead land usufructuary rights, reforming and improving homestead land system, selecting certain pioneer regions to promote the mortgage, lien, and transfer of peasants’ homestead property in a prudential way, and exploring the ways for the peasants to increase returns on their properties". So it’s necessary to make analytical study on China’s current homestead land system, with the aim of exposing the defects of current system and presenting advices on improving and transforming current system based on the analysis on the causes leading to the said defects.Based on the deep analysis of the formation, change, and operation of China’s homestead land system, as well as the exploration of theoretical outcomes, practical experiences, and the practices of foreign countries, this article presents some thoughts on the transformation of rural homestead land rights into usufructuary rights. The author attempts to realize the following three objectives:first is to make theoretical study on the nature and scope of the transformation process from rural homestead land rights to usufructuary rights, so as to clarify some ambiguity in our understanding, signify the duality in legal characteristics of rural homestead rights, and provide theoretical basis for the improving and development of rural homestead land rights. Second is to provide specific suggestions on enlarging the functions of rural homestead land rights and transfer of such rights under certain conditions based on a cost-benefit analysis with the theory of usufructuary rights theory. Third is to provide advices to the relevant legislative authorities on the enactment of certain laws and regulations on improving the rural homestead land system so as to set up the legal system of rural homestead land usufructuary rights. This article is divided into seven parts:The first part is an introduction, which explores the background for selection of the article topic, current situation in relevant studies, the theoretical and practical meaning of the study, outline and basic framework, the innovative work and difficult points in the study as well as the research methods adopted.The second part tackles the formation, change, and practical difficulties of the homestead land rights. The rural homestead land system is the part with the most significant regional characteristics in China’s rights in rem law. Its setup, development, and evolution process has close connection with specific political, social, and economic conditions, being the combination of all factors under the specific historical background. The article made an exploration of the historical formation, change, and background of China’s land system as well as the rural homestead land system. Combined with the conceptual analysis of land ownership, usufructuary rights for land, homestead land rights, rights of residence and comparative study of rural land system in foreign countries, the author seeks to locate the difficulties and causes in current rural homestead land system so as to lay a solid foundation for the study in following parts.The third part analyses the legitimacy of the transformation of rural homestead land into usufructuary rights. The rural homestead land rights have the dual features of social security and property rights. With the rapid economic and social development and the speed-up of urbanization process, the social security function of the homestead land rights has gradually on the decline and even been replaced, with some rural households have not been dependent on the homestead land as social security. The function of property rights in homestead land has taken a more prominent role. Under the condition of an unchanged public ownership of land under China’s constitutional system, we can improve China’s rural homestead land system by introducing rights in rem theory to realize the transformation and legalization of homestead land rights as well as to expand its private law functions. It has no conflicts with China’s political system and constitutional principles, and also is in conformity with the theoretical and practical demands under current social conditions. The theories of separation of rights and functions of civil law ownership, equal protection of rights in rem, and legally mandated rights have provided sufficient theoretical basis for the transformation of rural homestead land system. In addition, based on the analysis of the necessity and feasibility of setup and improving the rural homestead land usufructuary rights system, the author also discusses the major principles and values which the transformation process of rural homestead land system into usufructuary rights should abide by.The fourth part discusses the specific measures in setup and safeguarding the rural homestead land rights system from the perspective of usufructuary rights. There are five points in relation to content of the rights and its safeguard after the transformation of rural homestead land system. First is to specify that the balance of fairness and efficiency is the core value and departure point of institutional reform. Second is to recognize the nature of private property rights for the property value added in the homestead land rights through the rural households acts of making additions, and to expand the functions of the homestead land usufructuary rights, including occupation, use, gain, and disposal. Third is to expand the scope of subjects enjoying the homestead land rights. The initial acquisition of homestead land usufructuary rights should be limited to the members of the collective entity. However, the scope of inheriting subjects for the homestead land rights should be enlarged, which should not be limited to the members of the collective entity. Fourth is to have corrective understanding of the specialty of the subject matters of the homestead land rights. Such right means to construct houses or other buildings under the collective land ownership, with the land and houses becoming an inseparable integral part after the rights owner has constructed houses or other buildings on the homestead land. In terms of the nature of rights, addition has not changed the nature of ownership so that the nature of the subject matter of homestead land rights has not changed either. In terms of property rights, it was just the act of making additions that has made the subject matter of the homestead land rights becoming immovable property with greater using and property value. So the rights of the owner of the homestead land right should not be overlooked. Fifty is that current dispute settlement system is not helpful for the protection of homestead land rights since the disputes have been mainly settled through administrative procedures. So it will solve the existing dilemma in safeguard system of homestead land rights with the enhanced protection through the means under rights in rem law.The fifth part discusses the system for initial acquisition and termination of homestead land rights from the perspective of usufructuary rights. The initial acquisition and termination system mark the beginning and ending points for the rural homestead land system, with the homestead land usufructuary rights heavily dependent on whether there is a scientific, reasonable, and precise design. In accordance with the basic principles of the rights in rem law and China’s specific situation, the initial acquisition of the homestead land rights should still be granted on the condition of identity and charge-free. Yet the relevant procedures for initial acquisition, distribution, and the means of remedy for the rural homestead land rights should be improved. The lack of land tenure in homestead land rights has both contravened the basic theory of rights in rem and caused great difficulties in practice. As a right in the group of usufructuary rights, the homestead land rights should be limited with land tenure. The retrieval of homestead land righs can be divided into retrieval due to public interest, punishment, and identity. The retrieval for public interest should specify the nature of "public interest" and relevant procedures. The retrieval as punishment should strictly abide by legal procedures and grant the punished people with the right to seek remedy. The scope of retrieval based on identity should be limited to unused homestead land. As for the homestead land already having houses or other buildings constructed, the collective entity has no right to enforce the retrieval based on identity. It can only retrieve the land through transfer process or using the right of first sale.The sixth part explores the transfer system of the homestead land usufructuary rights. With the economic and social development and expedition of urbanization process, the thorough restriction on the transfer of rural homestead land has been not only in conflict with the characteristics of private rights and property rights for homestead land rights, but also in great deviation from the reality. To build reasonable and proper rural homestead land rights transfer system has become an urgent need. With the gradual development of rural economy and the improvement of social security system, the homestead land rights should be allowed with initial transfer and re-transfer through market transaction, with the precondition that the function of social security adhered with the homestead land rights being removed away. In the meantime, in order to avoid the possible defects caused by the transfer of homestead land rights, we should have strict limitation and management via legislation on the conditions to be satisfied by the transferor and transferee, the scope of subject matter, and the means and procedures of transfer, so as to vindicate the national land administration system, promote economic and social stability, and facilitate the smooth realization of legitimate interests of various stakeholders such as the land owners, usufructuary rights owners, and the members of collective entity.The seventh part is the part of conclusion, which makes a summary and conclusion of the article’s major contents, explores the relevant facilitative institutions for the setup of homestead land rights, and also discusses the prospect of homestead land rights.