Legal Consideration Of The Transfer Of Homestead Right In China

Homestead right to use property as a usufructuary, is the real law system in our country-specific concept. It is directly related to the basic concerns of China's 900 million peasants, the importance of which is self-evident. Whether the homestead can transfer the right of use, the existing Real Law and Land Management Law basically hold the attitude of rigid restriction. However, the striking contrast with it is the use right of homestead transferring substantially exists in real life. Transfer has become a prevailing phenomenon particular in combination areas of city and country and rich landscape zones. Because of the recessive spontaneous transfer lacking in legal norms and guidelines, it causes a great many problems to be resolved immediately in practice. Therefore, it is not only full of great practical meaning but also of theoretical significance to analyze and discuss the problem of transferring homestead right.The paper is based on analyzing and studying social realities, and adopts the mode of "raising questions - analyzing questions - solving problems" to construct the structure of the paper. The author proposes his vies through controversies on transferring right to the use of homestead. That is to say, it is allowed to transfer right to the use of homestead on conditions. Then it further analyzes the feasibility and necessity of the conditioned transfer and also analyzes history and reality of system of the use right of homestead, finds problems existing in the process of transferring, further clarifies the causes of the problems, and finally proposes the solutions to the problems, i.e. constructing the idea of new system of the use right of homestead. In addition to the introduction and conclusion of this article, the main body is divided into four parts:The first part deals with principal theoretical problems of the use right of homestead. First, through Chinese current law and theoretical field concerning different interpretations of the use right of homestead, the author defines it as members of rural collective economic organization enjoy the rights of building residential constructions and other ancillary facilities on the land owned by the collective peasants in accordance with law; then, it explains the use right of homestead is an independent property right,real property right in rem and usufructuary right mainly through the provisions of the current Real Law; and it is characteristic of Chinese usufructuary right, therefore, there are features such as limitations on subjects,objects specific and usage without limited time; then it compares with and distinguishes from the use right of land for construction.The second part mainly elaborates the feasibility and necessity of conditioned transfer of the use right of homestead. From the controversies of the use right of homestead transferring, the author comes up with the idea that the use right of homestead in the present period should be transferred on conditions. The rapid development of Chinese market economy and the increasingly completed social security system and reform of household registration system provide social foundations for conditioned transferring of the use right of homestead; meanwhile, conditioned transferring of the use right of homestead caters to the requirement of development tendency of real law; in addition, conditioned transferring of the use right of homestead also conforms to institutional functions such as social needs,safeguarding interests of Chinese peasants,accelerating urbanization construction and improving the utilization rate of land.The third part mainly marshals history of transferring system of the use right of homestead and analyzes the current situation through massive facts, then points out the problems existing in the present situation, such as homestead is left unused, transaction disputes can not be effectively solved, "premises integration" can not get protection. And then it further analyzes the reasons such as using homestead without compensation, imperfect resignation system of the use right of homestead and the urban-rural household registration system and so on lead to many problems appearing in current situation, which pave the way to solve the problems for the fourth part.With regard to the problems existing in the third part, the fourth part raises the idea to construct new transferring system of the use of right of homestead. First of all, it states the author's basic train of thoughts concerning conditioned transferring of the use right of homestead. Then it introduces the basic principles which the use right of homestead transferring should follow, and proposes institutional idea regarding perfecting current system of the use right of homestead.