Research On The Legal Issues Of The Right To Use Rural Residential Land In China

The right to use rural residential land refers to the right of the owners to possession and use of the land collectively-owned by peasants via construction of residence as well as its ancillary facilities. The system of right to use rural residential land in China is an inherent system with a strong Chinese native characteristic formed on the basis of the land policy after the founding of the People's Republic of China. It is of great importance, since it has a bearing on the living in peace and settling down to a quiet life for the millions upon millions of peasants in China. The present system of right to use residential land possesses such fundamental features as gratuitous distribution, uncompensated use, "one household, one housing" and restriction on transference, etc. Whether there could be a free transference of the right to use residential land is one of the most hot topics among all the issues argued in the present theory circle. The existing legislation has adopted the basic viewpoint of restriction on transference of residential land on account of several factors like social security, social stability and administrative system of collective economic organization in rural China. As times have changed and developped and along with so many new circumstances as well as new changes appeared in real life, the present system beginning from the 1950s of last century will certainly face more and more challenges. In theory, the Civil Law of the PRC has not only stipulated the ownership of residence for villagers but also required that the transference of residence must bind with the residential land and this lead to the reciprocal contradiction as well as serious conflict between the restriction of legislation for the transference of residential land and the legislation of Contract Law, Law of Succession and other department law. In reality, with the development of economy and the steadily increasing tendency of urban-rural composition, the need of transference of the residential land by the the owners are even more stronger. As a result, the secret backroom deals of residential land is quite popular and the invisible land market is growing in strength. Thus, the potential transaction safety hazard is increasing gradually. On the other hand, as the pace of urbanization has been speeding up, the rural population is decreasing little by little, while the occupancy area of residential land in China did not fall but rise. At the same time, the phenomenon of the inner-decaying village is becoming increasingly conspicuous. It is alright to say that this is just the classical show of the two famous theoretical models in economics, namely the "tragedy of the commons" and "tragedy of anti-commons". This dissertation, with the theoretical defects of the present system as well as the evolvement in reality as the starting point of research and with comparative method, analysis method of legal relation, methods of economic analysis and historical analysis as the main approaches of research, has clarified the conception as well as the legal nature of the right to use residential land and card as well as summarized the history evolution of the system of the right to use residential land. In addition, it has also systematically analysed the legal relation together with the system transition of the right to use residential land. On that basis, the dissertation holds a view that the transference of residential land is of great necessity and feasibility. Therefore, the legislators should not be at a standstill. Instead, they should make a right choice between conservatism and renovation.Apart from the introduction and the conclusion, there are four chapters in this dissertation. The first chapter is the overview of the system of the right to use residential land. The second chapter is the legal relation of the right to use residential land. The third chapter is the system transition of the right to use residential land. The fourth chapter is some thinking about the perfection of the system of the right to use residential land.In chapter one, this article has defined the basic conception of the right to use residential land. It has card as well as summarized the history evolution of the system of the right to use residential land and also discussed the basic properties of the right to use residential land. From the perspective of comparative method, this article has made a comparative analysis between the right to use residential land and surface rights, right of dwelling, right of identity in the continental law system. This article holds a view that the right to use rural residential land in China can be classified into the use right of rural collectively owned land and also it can be regarded as a special usufructuary right.In chapter two, the article has discussed the basic theory of the legal relation and determined to use it as the research methodology of law in order to study the system of right to use residential land. The article holds a view that the legal relation can be divided into two kinds, i.e. the static one and the dynamic one. Corresponding to this division, the analysis method of legal relation can also be divided into two types, namely the static analysis and the dynamic analysis. Taking the present system as a starting point, the article has discussed the subject, object and content of the right to use residential land in the static analysis, while in the dynamic analysis it has discussed the acquiring, alteration and termination of the right to use residential land.In chapter three, using the experience of the institution change theory of new institutional economics, firstly the article has made a brief explanation for the transition of present system. No matter for the local government or the individual villagers, there is a strong need for the transition of system. Tracing the source, there may be two major reasons for the oretical defects of the present system. One is that there is no legal possibility for the transference of residential land and the other is that the transaction of residence and land must be tied together for the integration principle of building-land. By summing up and sorting out, the article holds a view that the theoretical defects in reality may result in problems mainly in three aspect. Firstly, the gradually increasing area of residential land along with the phenomenon of the inner-decaying village is just the classical show of the "tragedy of the commons" and "tragedy of anti-commons" in economics. Secondly, the serious contradiction and conflict between the restriction of legislation for the transference of residential land and the Contract Law, Law of Succession leads to a quite different judicial decision in reality. Thirdly, the actual circumstances is so different from the intended goal of legislators in that the secret backroom deals of residential land is quite popular and the invisible land market is growing in strength. Thus, these bring a lot of unstable factors. As the pace of urbanization has been speeding up, local goverments all over the country launched the practicing and exploring of the transference of residential land in order to break the resource bottleneck which restrict the development of the cities. The article has introduced several representatives like the Chongqing type, the Tianjin type, the Guangdong type and the Zhejiang type. What is different from other dissertations is that this dissertation not only introduced the positive significance of the reform experimentation done by local goverments but also put more emphasis on the discussion of the drawbacks and defects of the reform. This dissertation holds a view that the right way to reform is the realization of the free transference of residential land, because the interest of peasants will never be achieved for the relatively narrow scope of the reform of local goverments. The article has responded to the apprehension and worries of the legislators from three perspectives, namely history, economics and comparative method. This article also holds a view that the reform of the existing household registration system along with the achievement and progress of the rural social security system have created conditions for the transference of residential land and provided a good chance for the reform of this system. Through the above analysis, this article believes that the free transference of residential land will neither affect the rural social security system nor cause the social instability.In chapter four, the article has firstly discussed the proper value orientation of the legislation of residential land. According to the research, this article holds a view that the system of right to use residential land contains various legal values and while handling the conflict of these values we shall adhere to the basic principles of the survival rights first and giving reasonable consideration to both the value of justice and the values of efficiency. For the establishment of the private right, the article believes that the ownership system of residential land and the system of right to use residential land need to be reconstructed. This article holds a view that the right to use residential land can be deemed as the membership right so as to solve the probable coming theoretical problems resulted from the reform of the existing household registration system. As for the several hot topics in theory such as the transference of nudation, compensated use, the term of right, statutory tenancy and superintendence of right, the article has wholly dicussed them at the same time and proposed the corresponding opinions. From the angle of the public right, the article has pointed out the relative suggestions for the regulation of government behaviors from the aspects of the real estate registration in rural China, government expropriation, administrative enforcement, administrative guidance and so on.