The Legal Matter Research To The Business Of The Small Property Right Houses

With the risk hint of buying houses of Ministry of Construction and appearance one after another of prohibition rules of Beijing Land Resources Bureau, the small property right houses start to appear repeatedly in public's field of vision. When the houses'price is becoming out of control, the small property right houses appear especially striking. The price is lower one half or even more than that of city, which has attracted the numerous home-buyers. However, because of the illegal development and construction, it is hiding the risk for the home-buyers. So-called"the small property right"generally aims at"the big property right", which is used in the following two kinds of situations. First, the developers will handle the independent house property right card for each home-buyer (the small property right card) after they obtain the house property right card (the big property right card) which is issued by the Regulatory Body of the real estates. Second, the collective economy organizations construct the farmers'apartment buildings on the collective land in the suburb. They not only settle down the members of the organization with these apartment buildings, but also sell some apartment buildings to the outsiders of the collective economy organizations with lower price. The home-buyers can only handle the small property right card with the stamps of the township government or the village committee, but they don't have the stamp of the National Real Estate Management Department. So they only have the small property right of the house. What this article discusses is the second kind of situation, namely the legal matter of the township dwellers purchasing the homestead constructed in the countryside. It is a dispute in the law that the business of the small property right houses is legal or not. The author thinks that the business of the small property right houses should be allowed but not be forbidden through the analysis of the circulation of the right of use of the homestead and the analysis of the legal nature of the business of the small property right houses.This article divides into three parts:In the first part, the author made a brief outline to the business of the small property right houses. Then the author made a definition to the concept of the small property right houses and the main body of the small property right houses. After determining the concept of the business of the small property right houses, the author discussed the formation reason of small property right houses. Through the analysis of the formation reason of small property right houses, we know that it has the institutional root. It disregards the farmers'benefit and personal feelings. It is also the contradictory mechanism of system operation. So we draw a conclusion that the land legal system of dual structure and the market economy system have the irreconcilable conflict. The author also elaborated the rationality of the business of the small property right houses in this part. Firstly, the small property right houses may be taken as the farmers'financial method.Secondly, handle the unnecessary real estates. Thirdly, it has the need of purchasing houses. We can draw a conclusion that the law in our country doesn't forbid the business of the small property right houses through the analysis of legal possibility of the small property right houses. The author expounded upon the problem of the right of use of the homestead in the business of the small property right houses in the second part. The author made a definition to the concept of the right of use of the homestead, which is discussed through its subjective and objective characteristics and its scope. Then the author made a brief introduction to the three theories that our country's homestead can circulate or not. First, the free circulation theory. Second, circulation forbidden theory. Third, circulation limited theory. The author thinks that no matter we adopt the legislative policy of opening completely or forbidding completely, we will have the big malpractice. If open completely, the consequence is that the capital will drive out the population and break the folk society of the countryside, then the stable foundation of the entire rural community will not exist. If forbid completely, the farmer'land as well as the houses on the land will not manifest the true value. Therefore allowing the circulation of the homestead must be under the premise of maintaining the countryside's stability. In addition, we can't realize"the same land, the same right", because the land market of the countryside is under the influence of"the differential land rent". Furthermore, banks don't want to accept this kind of pawn in the mortgage process, after all, the homestead undertakes the farmers'main social security. When the main creditors'rights can't be realized promptly, they are unable to enforce the homestead. Once more, through the analysis of the relation between the house property and the land property; the relation between the land right of use and the house property right; the relation between the transferring of the land employment right and the transferring of the house property right, we draw a conclusion that we should carry on the adjustment to the homestead's right of use and the house property rights under the premise of acknowledgment buildings'independence.In the third part, we recognize that the effect of the contract of sales of the small property right houses has not violated the legal rules through the analysis of the potency of the contract of sales of the small property right houses. In this part, the author analyzed the limit of the present laws and regulations to the business of the small property right houses and pointed out that the property right houses are unable to obtain the property rights because of the circulation problem of the homestead's right of use. We can't seek for the answer in"Reality of Laws"now about the potency recognizing problem of countryside's homestead and the houses'transferring. We can only act according to the land control law and the national policy-oriented stipulations. Through the analysis to the case of Beijing Huajia Village, we know the main divergence about the potency of the business of the small property right houses lies in the house property rights and the land property rights belonging to different subjects of rights. Both sides pin down each other inevitably as for the right of use. But the characteristic of close union of the houses and the land makes one party compromising to the other. Either the house goes with the land or the land goes with the house. The author thinks the land going with the house conforms to the farmers'benefit maximum. It will make the countryside's houses bringing optimum financial income to the farmers. According to the analysis, we know the legal basis that can confirm the potency of homestead transferring is not existent. Because of this, people will argue about the problem of the potency of homestead transferring and have different understandings on the relating provisions of current laws. Then the author confirms the potency of the contract of sales of the small property right houses. The effective reason is as follows: First, the contract of sales of the small property right houses complies with the stipulation of the law of contract effectively. Second, it is unreasonable to forbid the business of the small property right houses discussing from the legislation. Third, we should recognize that the small property right houses have the practical significance. Fourth, confirm its potency and not violating the laws related. Finally, the author proposed the legal countermeasures on solving the business of the small property right houses. Firstly, make the commodity attribute and the transaction procedure of the small property right houses clear. Secondly, in the actual operation, we should optimize the strengthening management. Thirdly, establish and consummate the law related and the system. According to the analysis, the author thinks that the business of the small property right houses should be allowed but not be forbidden.