Differentiation And Analysis On Forbidding Free Flow Theory Of Housing Land Use Right

From paying attention to protection of ownership to focusing on making the best of the possession, modern real right theory attaches importance to utilization of possession day by day while admitting and protecting static security of the possession. Such a developing trend requires making full use of the possession to realize value maximization. Development of legislation and jurisprudence must be in line with this developing trend. The conception of this paper lies in promoting free flow of housing land use right; core problem is to demonstrate collateral conditions free flow of housing land use right and to realize value maximization of housing land. With the purpose of making a point, the writer firstly makes an investigation on forbidding the free flow theory of housing land use right accepted by current legislation, and demonstrates necessity and validity of amending it from real and legal level to find out the disadvantages and difficulties on the back of the system, and then puts forward the collateral conditions free flow theory of housing land use right and makes positive illumination and treatise, finally raises procedure and system arrangement.Except introduction and conclusion, the whole paper is divided into four parts to make analysis:The first part puts forward on forbidding the free flow theory of housing land use right and the reason, and systematically introduces background of the proposal and demonstrating reasons for forbidding the free flow theory of housing land use right. First raises an issue on forbidding the free flow theory of housing land use right. It introduces evolution of the issue of housing land use right, and expounds social background argued of flow of housing land use right, including theoretical prerequisite and practicing background argued by flow of the housing land use right, and establishment of forbidding free flow theory of the housing land use right. Second expounds demonstrating reasons for forbidding free flow theory of housing land use right. It mainly lists and expounds reasons for argumentation on the free flow of housing land use right that is insisted by forbiddance theorist and that can not be lifted the ban from aspects of system level and practice angle. The second part demonstrates on the real disadvantages of forbidding the free flow theory of housing land use right. It mainly discusses from four aspects: first is that effective implementation of rights of peasants is suppressed. The peasants ought to have socioeconomic status and fundamental human rights, and enjoy wide rights in social practice, while forbidding the free flow of housing land use right damages property rights of peasants, and a series of social, economic, and political rights of peasants are suppressed at the same time. Second is that optimal allocation of land resource encounters obstacles. Forbidding the free flow of housing land use right suppresses stocking housing land to realize optimal allocation, and gives prominence to contradiction. Third is that law of market economy and economic rules are blocked. Economic law and market rules are required in a unified market, various kinds of market factors such as subject of market, labor force, capital, and resource, etc. can realize free allocation taking law of market economy and economic rules as targets under states of equal ground and free competition. Forbidding the free flow of housing land use right can not adapt to requirements of market economy, and the free flow of housing land use right in the market has ineluctability. Fourth is to demonstrate that vast existed illegal flow in life has caused land rights to be disordered with real examples.The third part discourses legal straits of forbidding the free flow theory of housing land use right. This part is divided into two aspects to make discussion: one is constitutional straits of forbidding the free flow theory of housing land use right. Make an investigation on that whether forbidding the free flow theory of housing land use right is in line with constitutional norm, constitutional principle and constitutional spirit: firstly discuss on that forbidding the free flow of housing land use right encroaches on equal right ordered by the constitution; proposition of forbidding the free flow theory of housing land use right is contrary to constitutional rules. Secondly, forbidding the free flow of housing land use right infringes on private property protected by the constitution; forbidding the free flow of housing land use right deprives property right of subject of right. Thirdly, forbidding the free flow of housing land use right violates development rights protected by the constitution, which lowers effect of private property on realizing individual freedom and other fundamental rights. The other is property law straits of forbidding free flow theory of housing land use right. It mainly discusses on three aspects: forbidding the free flow of housing land use right damages order, freedom, justice and efficiency, and is short of validity foundation on realization of damaging benefit and freedom and of restricting justice and efficiency, which becomes obstacles of real order; forbidding the free flow of housing land use right undeservedly limits the real right, inspecting from dialectic relations between socialization trend and right limitation of the real right and just cause of forbidding the free flow of housing land use right, these two factors can not be just cause of forbidding the free flow of housing land use right; forbidding the free flow of housing land use right obstructs punishment power of real right for usufruct, inspection from right content of the housing land use right, the free flow is important expression of punishment power of real right for usufruct and vested rights of subject of right under special situation; forbidding free flow of housing land use right forms infringement in legal system level.The fourth part discusses on proper amendment of forbidding the free flow theory of housing land use right. This part makes theoretical inspection on collateral conditions free flow of housing land use right, and puts forward detailed system conceive. It is divided into two titles: one is theoretical inspection on the collateral conditions free flow theory of housing land use right. It mainly discusses on the following aspects: the collateral conditions free flow theory of housing land use right is in keeping with law of market economy, law of real right for usufruct, benefit demand of peasants, and benefit balance and value selection of law, which does not reduce social security function of housing land. The other is legislative thought on collateral conditions free flow of housing land use right. Firstly, propose research access way based on protecting private property of owner of the housing land, maintain integrated usufruct function of housing land use right, and promote institutional changes and institutional guarantee from forbidding flow to free flow. Taking perfection of legislation of Property Law or making judicial interpretation as principle to amend slip laws, according to collateral conditions free flow theory of housing land use right to make system design. Secondly, define free flow of housing land use right conditionally. The basic premise of the collateral conditions free flow of housing land use right is to acknowledge the free flow, the collateral conditions are not reverse and negative, but are just rule and necessary program design of national public rights for unifying market flow. It gives regulations on the free flow of housing land use right conditionally mainly from aspects of subject condition, object condition, flow range, flow pattern, flow procedure, and establishing flow system, etc. Meanwhile, it proposes advices to perfect supporting facilities of free flow of housing land use right, including reform of the household registration system, the system of rural cooperative medical and health care services, and urban-rural integration social security system, etc.