The Legal Research Of "the Small Property Housing"

The reform of the easier issues of China's land system have been success till now, the remaining issues are more difficult because these questions involve in a variety of interests subjects."The small property housing"issue is the surface of dilemma of China's land system, the repeat of"The small property housing"indicating the simple"block"can hardly have effect. In fact, under the current dual land system of our country, the problems such as the state-owned construction lands monopoly the first market,the segmentation of construction lands market and the non-perfect of the collection system, these are the natural causes of the problems, the deep reform is essential to resolve these problems. Practical approach is to reform the current land system, and explore a unified urban and rural construction land market step by step, and supplemented by appropriate supporting measures. From the year of 2007, the discusses of"The small property housing"are onwards, then the author learn from the previous writings ,together with the special opportunity of our central government seeks to reform our land system, try to explore such an old and difficult issue. Of course, for"The small property housing"which has already existed, the author has different treatment responses in part IV of this article. The paper's intention and focus is how to ward off this danger on the base of reforming our dual land system, how to completely solve this problem in the point of view of our specific national conditions, balance urban and rural integrated development, focusing on protect the interest of farmers and people's livelihood, the author make the statement to disappear the existence of the so-called"small property". Especially in improving the existing land system part, the author focuses on how to take corresponding measures under the current land tenure system. The body of the article is divided into four parts:The first part introduces the connotation and denotation of"The small property housing", and focus on the different types of the existed"The small property housing"which is pave the way of the later description, so that the readers can have a basic cognition and grasp of"The small property housing". Then introduces the development process of"The small property housing"and has a detailed analysis of the outside causes and underlying causes of"The small property housing": point out that the city people ,rural collectives and peasants are benefit from"The small property housing"are the appearance of reasons; our dual land system and the monopoly of the constructive land's first market by the state-owned construction lands, irrational levying system and the various interests of the subjects are the underlying causes of"The small property housing".The second part analysis the illegal position of"The small property housing"in natural law, and summarizes the risks of the booming invisible market: the losses of arable lands, the danger of food security, the damage of farmer's interest, the disruption of real estate market's safe, the away from government's supervision.The third section presents the ideas and specific programs to set"The small property housing"issues. Firstly, states the reason of"change should not block": practice has proved that the"block"has been little effect, a simply word"block"can not fundamentally resolve the competing interests, to prohibit the transfer of the collective construction lands violates the Constitution , and contrary to the basic legal requirement of the same land has the same right. While the collection system's imperfections damage to the interests of farmers seriously; then followed by a comparative analysis of three kinds which can be able to program: collective land nationalization; collective land privatization; collective land transfer available. Above the three methods, to build a unified construction land market is a realistic program: on the one hand, from the real natural level, the implementation of the first two programs need to amend the constitution to change the existing basic systems, it is difficult to achieve. The third program is in line with the Constitution, especially after the 17th the Third Plenary Session, it is more realistic; the other hand, from the level it ought to be, the former two kinds of programs is not an absolute advantages. Finally state specifically the advantages to build a unified urban and rural constructive lands market: with a variety of supporting systems be improvement at the same time, allowing the collective construction land use rights transfer will help to protect the interests of farmers, will help make an inventory of land resources, but also an important implementation tool to make cities a nurture rural areas, cities to promote rural, urban and rural development in the same time.And then proposes specific reforms. In such a land difficult country, the dual lands system finally established after twists, it is in line with our specific national conditions and history in a very long time and even certain period of time. In the new era,"The small property housing"and other new issues are appeared under this dual system, if undertaking a simple change in the land system, which may cause considerable adverse effects, will be many problems, but reform is always risky, the author try to build from a sound system and supporting systems to dropped the risk to the lowest, this is the sensible and positive approach. First, for the collective lands within the urban planning, which are transferred to state-owned lands by the collection system, and are in a unified construction plan; for the lands within the township and village planning, can be permitted free transfer, but also subject to the relevant departments of the unified planning; if not in the planning of the two ways, the lands must be reported to the examination and approval to transfer, and can be freely negotiated by the parties to set prices. Second, the need to protect farming land and the support functions of peasants'house site. Separate indicators of house sites in advance to protect the rural residential housing construction sites, and make strict control of the increment system of agricultural land and the house site into collective construction land. Particularly about the protection against the homestead functions in the case of market-based transfer, the author put forward the practice of urban residential quarters creatively, to increase the housing capacity rate of house sites, and taking into account the farmer's living rights and usufruct. Third, through the establishment of a collective Land Registration Act, the land use right transfer method, the rural social security barrier system to establish a collective approach to construction land transfer.Part IV state the treatment response which distinguishing between the different nature for the already existing"The small property housing".