A Research On The Legal Realization Path Of "Separation Of Three Rights" In Homestead

The right system of homestead is a unique property right system in China,which is more restricted by public law than empowered by private law.It accumulates many problems in theory and practice.The ownership of homestead is manifested as unclear subject,vacant power,fuzzy cognition,poor exercise and so on.The right to use homestead has some disadvantages,such as the power is not independent,incomplete and the circulation channel is extremely limited.The insufficient supply of right system is an important inducement for idle and wasteful homestead,excessive occupation and frequent private transactions,which leads to a large number of gray areas in law enforcement and weakens the credibility and enforcement of laws and policies.The right system of homestead has gone through the development process from the unitary right of owned by peasant household and privately used by peasant household to the “separation of two rights” of village collective ownership and private use of peasant household,and then to the “separation of three rights” of ownership and qualification right and use right.It is necessary to turn the “separation of three rights” in homestead in the reform pilot and national policy language into a legal system.The design of the system of “separation of three rights” in homestead should meet the political,economic,social and ecological objectives,to strike a proper balance between public power and private right,between public and private interests,between the right to subsistence and the right to development,between the right to self-possession and the right to other possession.It should pay attention to improve farmers’ concept of subject of rights,consciousness of right boundary and spirit of collective obligation.We should insist on strengthening collective ownership,and implement the due power of the owner.The qualification right of homestead shall be classified as member’s right,and its power shall be expanded,so as to provide the whole process of housing security for peasant household before,during and after the acquisition,use and transfer of the right to use homestead.Purify and transform the right to use homestead,and remove the identity restrictions on the transfer objects,non-members of the village collective economic organization,including urban residents,can obtain it through market transfer.Referring to Article 354 of the Civil Code which stipulates that the parties can freely agree on the transfer period of the right to use construction land within the validity period of the right,when a peasant household transfers the right to use homestead,it shall be regarded as the partial period for the transfer of the right to use homestead continuously,and the legal structure of “separation of three rights” in homestead is constructed,which is collective ownership of homestead + homestead qualification right of peasant household + the right to use homestead(qualified person/unqualified person).Implementing collective ownership is the goal and bottom line of the reform of the“separation of three rights” in homestead,both private ownership and state ownership of homestead are not feasible in theory and practice.Judging from the current situation of capacity,the trend of reform and development,the ownership of homestead is no longer suitable for villager group level exercise,and should be unified exercise by village level organization.The main level of homestead ownership is village collective members →members collective → village collective economic organization/village committee,the village collective members are the final subject,the member collective is the substantive subject,and all kinds of collective economic organizations or village committees are the exercising subject.The power of collective ownership should be improved,including the right to review and decide on the right to use homestead and the right to consent to the transfer,and the right to usufruct,the right to recover and the right to requisition compensation for homestead.Standardize the exercise mechanism of ownership,define and distinguish the membership of villagers and collective economic organizations,establish the mutual support relationship between village collective economic organizations and village committees,systematically improve and implement collective member’s rights,and promote collective members to participate in,make decisions and supervise homestead affairs more widely and deeply.The qualification right of homestead originates from collective ownership,which is the manifestation of the member’s rights of village collective economic organization in the field of homestead and bears the original identity attribute of the right to use homestead.The qualification right of homestead is exclusive,non-transferable and non-inheritable,and cannot be restricted without legal conditions,its power include the initial distribution,redistribution and preferential transfer of the right to use homestead,the free and indefinite use of homestead,supervision and management,and the request for compensation and various residential security.We should use the concept of peasant household to unify the existing legal statements on various rural “household”,which is classified as unincorporated organizations in nature and is the subject of the qualification right of homestead.Qualified members of village collective economic organization can exercise the qualification right of homestead after establishing new peasant household and being confirmed.When applying for homestead,the share shall be fixed equitably according to the person,and the maximum area of the peasant household shall be limited.The rights and benefits of the members of the peasant household shall be shared,and the individual shares shall not be divided during the existence of the peasant household.The homestead qualification right can be withdrawn voluntarily and lost when the peasant household does not meet the requirements of family system,household registration system and collective membership system at the same time.We will implement the internal autonomy of peasant household,promote the registration system,improve the right relief channels,and provide a guarantee for the effective exercise of the qualification right of homestead.Whether the right to use homestead can be endowed with complete and independent power determines the effectiveness of the reform of “separation of three rights” in homestead.The purpose property of the homestead shall be maintained and cannot be changed into other land properties without legal procedures.Adhere to the principle that the right to use the homestead of peasant household and non-members of the village collective economic organization is a usufructuary right,and carry out market-oriented transfer under the principle of integration of real estate and land.The first acquisition of the right to use homestead can only be applied for free by peasant household based on the qualification right of homestead.When they have the qualification right of homestead,peasant household can use the homestead free of charge for an indefinite period of time,and have the right to transfer,mortgage,inherit the right to use homestead independently and obtain income.Peasant household need to use the homestead for compensation within a fixed period of time since they lose the qualification right of homestead.The right to use homestead is subject to market-oriented transfer.In addition to legal inheritance,non-members of the village collective economic organization can only transfer the right to use homestead through peasant household or other legal obligee for a maximum period of 50 years.After the expiration of the right to use the homestead of non-members of the village collective economic organization,the right will revert to the peasant household or the successor,and the contract can be renewed upon mutual agreement.Under special circumstances,the right to use homestead will return to the village collective economic organization.We should improve the risk prevention system for peasant household who have no permanent home,and the system of interest distribution and expropriation compensation for homestead,accelerate the formation of national spatial planning and village planning system,continue to improve farmers’ social security level,and ensure the healthy and orderly transfer of the right to use homestead.