Research On Chinese Court's Enforcement Of Homestead Policy

Chinese court's enforcement of homestead policy is problem with typical Chinese characteristics.Scholars usually research on the question whether homestead policy is the source of the civil law.However,the Article 10 of General Rules of the Civil Law of the People's Republic of China no longer regards policy,including homestead policy as the formal resource of the civil law.Under this background,it is not enough for the relevant theoretical to prove that the policy including homestead policy is the informal resource of the civil law.To clarify Chinese court's enforcement of homestead policy is a complicated propositions.The primary task should be to describe the practical state which the courts enforce homestead policy.From a practical point view,the jurisprudential circle and the judicial circles generally have different attitudes to the same question.Although the jurisprudential circles generally questioned the legal nature of the homestead policy,the judicial circle increasingly emphasizes the guiding rule of the homestead policy.The courts reach the results consistent with the homestead policy.The courts of China enforce the homestead policy in several ways.For example,the courts take the homestead policy as the direct basis of judgment,and adapt the relevant provisions of the current.In essence,the court's enforcement of homestead policy indicates that the Chinese courts is the interest subjects in public policy as policy-implementers besides the rule of judges.The courts participating the homestead policy has two functions,including “responsive” enforcement and “additional” enforcement.In responsive enforcement,the court mainly take the homestead policy into the practical civil judgment,leading to the result consistent with the policy.And the courts changes the result to meet the evolution of the homestead policy.In the additional enforcement,the courts considering the target of policy,expanse the application scope of homestead policy,including subject,condition and so on.The result is to achieve the homestead policy's target and ensure the implement of the policy in the civil conduct.The jurisprudential circle and the judicial circles having different attitudes on Chinese court's enforcement of homestead policy leads to the following question.The first question is the which factors which make the judicial decision to determine the ownership of the substantive rights of the litigants in accordance with the homestead policy.The legal source theory holds the points that the Chinese courts enforce the homestead policy because it is one of the source of civil law.However,the theory is regarded the homestead policy as the informal source of the civil law.The conclusion can't explain why the policy decides judgment result.And basing on the legal source theory,the improvement program is too idealistic to be feasible.In fact,to resolve the problem Chinese court's enforcement of homestead policy,we should focus on the courts' essence.The courts have dual role,one is “trial court”,the other is “court of public policy”.Under the different role of court,there are differences between the attitudes to law and policy,the trial position and behavior.The reason is the relationship between justice and politics.The leadership of CPC decides the courts enforcing homestead policy.The Chinese courts need to accept the leadership of CPC,including Political Leadership,Judicial Thought and Organizational Leadership which leads the court in the service of nation's overall.The homestead reflects the nation's overall and task about translation of rural social.Therefore,the courts serve in the enforcement of the homestead policy.Chinese courts force on the enforcement on homestead policy and appear as “court of public policy”.Although the Supreme People's Court don't engage in the trial,it translates the homestead policy in judicial policy to ensure the implementation of homestead policy.It still affects courts' decisions through judicial policy.Considering its own interests,the Supreme Court tends to adopt informal judicial policies to guide courts' decisions.This informal judicial policy plays its role by transferring the policy to the court judgment with the help of the differential structure of the court system.Because of the orientation of the court as an integral part of the power system and the guidance of the judicial policy of the Supreme Court,the homestead policy has substantial binding force in judicial decisions.And it came into being the question is how to evaluate the judicial application of homestead policy? The response to this problem should be evaluated from both positive and negative aspects.From a positive point of view,the enforcement of homestead policy promotes cooperation among national institutions.The court applied the homestead policy to the judicial judgment,consciously embedded it in the implementation process of the homestead policy,cooperated with the policy implementation behavior of other national institutions,and promoted the communication and coordination between different national institutions.Compared with the law,homestead policy is flexible and can respond to the transformation of rural society and economy in a timely manner.Under the background of rural social and economic transformation,the homestead policy has made detailed provisions on some key issues,which is more suitable for the regulation of rural social relations and the development of rural social economy.So,homestead policy will inevitably pass its own advantages to the court,which will help to resolve the relevant disputes.However,the application of homestead policy has also brought some negative consequences.There are mainly manifested in the fact that the homestead policy has entered the adjudication stage,and the negative effect of the regulation policy of homestead has been expanded by the force of justice.At the same time,in the application of homestead policy,the Supreme Court actually plays the role of "legislator" and produces "legitimacy" for the law enforcement actions of administrative law enforcement organs.In fact,it undermines the distribution of functions of legislative,administrative and even judicial organs in the power structure.Moreover,if the judicial policy of the Supreme Court wants to play its guiding role,the inevitable result is to strengthen the bureaucratization of the court system,which affects the independence of the judiciary.The way which improves the enforment of homestead policy should take the particularity of Chinese court's political ecology and the limitation of justice in power structure seriously.The Chinese courts enforce the homestead policy in the legalized way and eliminating the negative consequences.Base on this destionation,the courts return to the role of “trial court”,paying attention to settlement of disputes between the parties and the balance of interests.The courts must ensure full compliance with the the principle of public order and good social customs to achieve homestead policy.At the same time,the courts can apply the principle of good faith to elimate the negative influence.The Supreme Court's judicial policy also changes forms and contents developing case guidance system,to overcome the primary way's abstractness.The last but not the least,the Supreme Court should focuse on substantive norms to the supply of procedural norms,to protect courts' discretionary power which contributes to the court know more infromations well and balance interests.