On The Current System Of Usufruct Right On Rural House Site Of China

Rural house site is residential land for rural residents. It's the most essential and basic means of livelihood for the farmers'existence and development. Rural usufruct of land for building is not only an exclusive usufruct of our country, but also the basic rights for the farmers. The Property Rights Law of People's Republic of China(PRL), which was passed at the fifth session of the Ninth National People's Congress on March 16th 2007, sets a special chapter for the usufruct of house site. It's a great development of the institution of rural usufruct of house site. It's also makes sense to clarify the legal character of the usufruct of land for building, realize its use value and exchange value and to strengthen the legal protection about it. But at the same time, we can see the usufruct of house site in the PRL is actually the rural usufruct of land for building. However, the PRL only sets four clauses about it, and there is no empirical research and details. When it comes to some specific matters ,like the acquirement,exercise and transfer, we have to use other laws and provisions, such as The Law of Land Management. Therefore, the new PRL fails to solve the current existed problems.Rural usufruct of house site is a legal right for the owners to possess the land, which is owned by collectivity, and build house, or affiliated facilities on it. The writer holds that, as an exclusive right in China, the rural usufruct of land for building has the characteristics of identity, dependency, non-compensation, persistence and the most important is that one family can only apply one residential land, etc. by contrast with superficies, personal servitude and usufruct of the urban site. Since the People's Republic of China founded in 1949, it has come through the following four periods: the land reform period, the socialist transformation period, the advanced agricultural cooperative team period and the reform and opening up period. This process acts as a profound reflection of the historical reform of the land institutions. Especially from the reform and opening up to the issuance of the PRL, the current institution of the usufruct of land for building in China has been finally established. The explicit provisions about the acquirement,layout,approval and the jurisdiction guarantee to inspire the agriculture development,stabilize the agriculture community and promote the agriculture economic prosperity. With the rapid development of the socialist market economy, some provisions about the institution of the rural usufruct of house site do not match with the present situation, so it obstructs the development of the market economy and socialist new rural construction. The main aspects are:(1)The administration of the usufruct weakened its characteristics of the real right.(2)The main body and the property right of collective land ownership is unclear.(3)As a result of use the land free of charge, the land resource loss is very severe.(4)The provision about the transfer of the usufruct of house site is ambiguous.(5)The current institution of the usufruct of land for building is still in disorder.It is not only the historical reasons, but also the current laws management problems,the indifferent legal consciousness of farmers and many other reasons that bring the above problems. But its basic reason is that the country's current institution and provisions of the rural house site is not in accordance with the requirements of the socialist market economy development and the future trends of the real rights.In the study of the institution of rural usufruct of house site, we can find that in the process of perfecting the country's rural usufruct of house site institution, we should take the market economy as the base, take the developing trends of the real right as the direction for making the law, take the"Rural,Agriculture and Farmer"policy as the guide and take the balance of efficiency and justice as the principle. And we should definitude the ownership of the rural collective land, sharp the property right of the collective land and constitute a system of the payment and limit use institution as well as a compulsory registration institution of the rural usufruct of land for building in the PRL in order to establish a fair and reasonable legal framework of the usufruct of house site and protect the farmers'rights about it. Only by this way can we keep the stability of the society and promote the development of the rural economy.