Research On The Validity Of The Transfer Of The Rural Dwelling Lands

During the legislation process of the reality of law, the transfer of the dwelling lands in the rural areas has always been a hot debated legal problem. But most of the debates fell into the era of economics or public management, and were always accompanied by viewpoints from positivism and ended in the conclusion, summarization and recognition of current policies. Although legists got involved in those debates and contributed painstaking efforts, they seldom did detailed research on the legal relations and legal interests of dwelling lands in the rural areas. They had no comprehensive and concrete investigation and statistics, nor were they legally independent, so they can hardly gave out positive gist to properly evaluate and balance the interests of country, collectivity and individuals relied on the dwelling lands in the rural areas. As a result, the provisions on the dwelling lands in the rural areas which finally ended in 'the Land Management Act and other relative laws and regulation are applicable to the acquisition, exertion and transfer of dwelling lands' had little changes though the reality of law was revised many times. It seems that this provision leaves space for further modification of law; but, in fact, it follows and recognizes old laws and policies, and continues to restrict the transfer of dwelling lands in the rural areas. So the debates over this issue will continue. Reality of law, as an upper law, does not regulate such an important property right and does not fulfill its legal liabilities. We must study this matter systematically to contribute to the revise of the reality of law. This thesis analyzed the evolution of the policies of dwelling lands in the rural areas of our country historically, the loose-strict-loose process of the transfer of dwelling lands. It pointed out the policy of dwelling lands is a product of economy foundation which has a peculiar time spirit and is closely connected with economy. It also systematically analyzed the character of dwelling lands and the guidelines of constituting reality of law. The guidelines of constituting reality of law are to balance the country's, collectivity's and individuals' interests, especially the limited lands of the country and living rights of individuals.This thesis positively analyzed the current law on dwelling lands and its implementation, pointed out that the unbalanced situation of dwelling lands rights management is caused not by the transfer of dwelling lands but by the reality of law itself and its implementation. Then this thesis further studied the conflicts of the obligee of dwelling lands and pointed out that if limit the transfer of dwelling lands will cause conflicts between reality of law and Constitution, international regulations our country will join, Land Management Act etc. This thesis also studied the effectiveness of the contracts of dwelling lands in the rural areas and its legal effects. It analyzed the conflicts between effective transfer of houses on dwelling lands and illusive transfer of dwelling lands, conflicts between houses transfer allowance and dwelling lands transfer prohibition. Based on above studies, it further set forth the low efficiency of provisions on dwelling lands.The author pointed out the inconsistency between limited dwelling lands transfer and the proper requirements of countrymen and townsman. And pointed out that there has no certain relation between this kind of management and the protection of plowland, and baffles the communication between countryside and town, increases the cost of social management, does no good to ease the contradiction between countryside and town. Loose the transfer of dwelling lands will speed up the development of the countryside and the whole society.Based on all the theoretical and positive analysis above, the main viewpoint of this thesis is loosing transfer of dwelling lands. And this thesis gave out proposals to effectively control the transfer of dwelling lands and to avoid unbalance of various interests. Finally, this thesis gave out suggestions to revise the current four provisions to eight to form a complete and rigorous law system.