| Making the best use of things is the requirements of the socialist market economy, currently, in our country appears this situation that in the city housing supply and demand is tight, housing prices remains high, while in countryside, a large number of rural housing has been standing idle. As the urban-rural dual structure gradually broken, in our rural areas, the contradiction of housing transference is becoming more and more outstanding, this problem has become unavoidable. And it is disappointing that The Property Rights Law of People's Republic of China enacted recently still be pushing this issue to other legal, so how to solve the problem of housing transference need we continue to study and explore. How to see the issue of rural housing transference, how to solve the contradictions between the transference of rural housing and the using right of rural housing land? This paper will under the prerequisite of protect farmers rights and social stable development, to explore this issue and hope in this regard can be for the country's legislative, judicial reference.This paper is divided into four parts.The first part of the article is the introduction of status about rural housing transference. With the improvement of production technology, a lot of people into the city formed unique farmer workers, and through hard work, many of them are settling down in the city, they are not the traditional sense of the farmers, they have become one part of the city and the enterprises. On the other hand, with the transfer of the contractual right of land gradually liberalized, more and more urban residents to countryside create wealth. Rural-urban migration led to the demand growing for the rural housing transference. Central and local governments on this issue are very carefully. In reality, the forms of transfer of rural housing are diverse, but due to the lack of government intervention, there have been a lot of contradictions, these conflicts must be resolved.The second part is the analysis on the reasons of the contradiction arising in the transference. First, our law keeping land-building integration principle, in China only State and Collective organization have land ownership, land-building integration principle is that the ownership of building and the land employment right belong to the same subject. Now this principle is mainly used in urban housing transference, as the inertia of thinking, it has also been applied to the rural. The principle has active and reasonable in the reality, it will bundle the premises, making the presence of houses on the land have a legitimate right to the source, people through use the building has reached the purpose of use land. So it is reducing the occurrence of contradictions during transference, simplifying the legal relationship. But this principle also has great shortcomings, in the law, land ownership, land use rights and building ownership are consider revising, so the land and building is different object, the system is too rigid if they were bundled together to transference, this way will affect human the right of dispose freedom. Under the principle, the transfer of rural housing has inevitably involved the sensitive issue that the transfer of the right of use land, this problem is very hard. Second, transfer of rural housing laws and regulations are not perfect, resulting have emerged different justice, rural housing disputes even more serious. Through in-depth analysis, the key lies in the contradictions is rural housing can be transferred but the use right of rural land can not be transferred. Whether the right of use rural land can be transferred? At present, scholar's point of view can generally be divided into three kinds: freedom, prohibition, compromise. I believe that from the current national land policy and the reality of China's social development perspective, free transfer is not realistic, because it is different with other types of collective non-agricultural construction land, it is must be freely provided to the villagers. If allow it transfer maybe harm to our cultivated land. I think separate the right of building and the right of use land can reconcile the contradiction.The third part analyzes the relationship between land and building in other legislation. With regard to housing and land relations, Continental legal system generally can be divided into two kinds of model legislation which are Monistic Pattern and Dualistic Pattern. Two models are all have advantages and disadvantages; Dualistic Pattern is more suited to the community demand. Japan and China's Taiwan region adopt the second model, in their legislation, building and the rights of use land are two different objects that can belong to different people, surface right and land lease right can be basis for building existence on the ground. And also set the statutory superficies and statutory tenancy, making the land rights and building on the surface transfer more flexible and easier for the best use of things. We can learn this model. The statutory tenancy rights of Taiwan region can be used in the transference of rural housing, reflecting the market value of housing and also manages rural collective land easily, to avoid hazard arable land.The fourth part made specific solutions for the transference of rural housing. In order to meet the social development, under the premise of protect rural interests design a specific system. While in order to let the farmers who transfer his house has a stable life, we should develop a variety of security system and effort to increase farmer's income, so that our whole society can be harmonious and stable development. |
