On Legal Issues Related To Usufruct Of Rural Collective Construction Land

The right of use of the countryside collective construction land is refers that the civil subject takes to be engaged in the non-agricultural construction as a goal, enjoys legally to farmer collective all lands holds, the use and the income right, which is authorized to use this land construction building, the construction and the ancillary facilities. The right of use of the countryside collective construction land is mainly divided into three kinds: the right of use of the township including the rural enterprise (town), the right of use of the village public utility and the public welfare, the right of use of the homestead. Compared with the right of use of the construction land, it belongs to the member power, is the incomplete right, is the function narrow uses the profit real right. The right of use of the countryside collective construction land mainly constructs the house use for the rural enterprise and the villagers, whose tremendous role has not been able to obtain the display, the reason lies forbid its circulation in law.Usufruct of rural collective construction land refers to retain the countryside collective land ownership under the premise, completes the shift which or the actual commuter's change through certain way. The common way of transferences includes the selling, the hiring, the mortgage, the price to buy stock, the replacement, the inheritance and so on. The related circulation's stipulation of usufruct of rural collective construction land mainly concentrates in "Land Control law" with State Council's related administrative rules and regulations, stems from protects the agricultural land, prevents consideration which the construction land inflates, in principle forbids the transferences of usufruct of rural collective construction land.Along with the socialist market economy's development, ideas such as the equal status in the market, and so on the same level protection of the different system of ownership economy strike root in the hearts of the people gradually. The state-owned land and the collective land not equal present situation initiates scholar's ponder. They presented to break the state monopoly construction land primary market the fetter, established the city and countryside construction land market integration the position, namely farmer collective all lands still retained the collective land ownership, the collective organization may not chase after the national collection, sell directly usufruct of rural collective construction land for the land commuter, break the collective land must to draft after the government for state-owned do not use in the non-agricultural use the limit, realizes the collective organization to enjoy with the national equality construction land leaves gives up rights, establishes the unification gradually the land.This is the theory of the city and countryside construction land market integration. The planned economy is the state monopoly construction land primary market production background, but the market economy is the city and countryside construction land market integration foundation. How regardless to dispute theoretically, the realistic society has formed the countryside collective construction land right of use to sell for the land commuter's stealth market, moreover transaction quantity is getting bigger and bigger, causes the illegal land to failure to prohibit repeatedly, the national finance and taxation drains massively, the farming protection is under the impact, the land utilization efficiency is low, and initiated the complex rights and interests dispute, the countryside cadres and the masses contradictory further complicated. Presents the stealth market and creates the massive contradictory reasons is mainly the law makes excessive demands, the comparative advantage stimulation, the market economy demand as well as system's flaw and so on. Solution question realizes the countryside collective construction land right of use marketability, permits its circulation, this from the system vicissitude theory, the land property right theory, the marketability circulation's realistic foundation, the present policies laws' and regulations' reservation space, socialist market economy's aspects and so on construction goal is may draw the conclusion theoretically. The regional pilot work achievement also has verified the countryside collective construction land right of use circulation in fact is feasible. Summarizes the experiment site area experience, may see: Completes the circulation work to complete the collective land the property right confirmation work, must be clear about the collective construction land circulation the condition and the scope, must the rational distribution circulation income. Collective land employment right direct entering the market has not initiated the soil-rent value to fall suddenly, the state revenue not only has not reduced, instead increases. Once the worry overflowed to occupy the farming the situation not to appear, the farmers' income distinct enhancement, it may be said that answers multiple purpose. But the existence question does not allow to avoid; first, the regional experiment site practice exploration is different, but summarizes based on the realistic rationality the typical experience or the success pattern, mostly broke through the bird cage which the current law establishes, presented the challenge to the countryside collective construction land right of use circulation's restriction pattern, has formed the obvious Local authority rules and regulations and National People's Congress legislates, the lower position law and the superior method conflict, causes the countryside collective construction land right of use circulation to lack the support in the legal stratification plane, has the fundamental restriction to the countryside collective construction land right of use circulation. Manages state affairs according to law is the constitution request, presents the so massive breakthrough law fetter in the build socialism government by law society advancement the situation, is the law does not permit; Second, the collective land property right is unclear, the true power is difficult, to a certain extent diverted pilot work smooth advance.After dialectical analysis of the advantages and disadvantages, the theory and the reality of the transference of usufruct of rural collective construction land, we may obtain the necessity of the reform of usufruct of rural collective construction land. Although the said reforms are imperative, we must follow the government laws and principle, the city and countryside integration principle, the marketability principle, limited administrative intervention principles and so on under principle, rational distribution principle, protection farming step by step the order to launch, first solves the reform valid problem, adopts the request legislation the way, is authorized the State Council initiative by National People's Congress to decide the related circulation the administrative rules and regulations, causes to reform perfectly justifiable advance; Removes the countryside collective construction land right of use the agricultural land color, truly according to construction land right of use regarding; Unifies "City and countryside Plan Law" the implementation, is clear about the countryside collective construction land the entering the market condition; According to starting with the easy and then doing the difficult, after first storage quantity, the increase order, implements the countryside collective construction land gradually the circulation, and causes its full marketability; The compression country takes over for use the land right gradually the use, the display government promotes the guidance the positive role, has draws back, carries out the limited administrative intervention the principle; Completes collective and state-owned two construction land right of use circulation shape coordinated, establishes the circulation income distribution and the supervisory mechanism as soon as possible.To current hot spots: homestead, farmer housing and small property right business, after having analyzed the success and failure of the transferences, this paper proposes that the government should have the condition to permit the homestead transference, and that the plan should be made with the criterion, first to purchase the power, the hypothesis lifetime and so on, and that the solution to more than a household dwelling's processing problem.