Study On The Transfer Legal System Of The Homestead-use Rights

With the appearance of trading rural residents such as"limited-property realestate", and the progress of coordinating the experiment in urban and rural area comprehensive reform, the issue of the homestead-use rights has aroused people's attention gradually. At present, the basic attitude of legislation is to limit strictly on transfer the homestead-use rights, and it can only be transferred inside its collective economy organization. However, as time goes by, the existed legal system of regulating the homestead-use rights has become inappropriate from values to specific rules designed. There is a urgent need to improve and to perfect the contradictions and conflicts happened between the legislative attitude stated above and the practice. This author tries to propose his own views and specific ideas on the improvement and perfect of the legal system of homestead-use right through analyzing the basic theory of homestead-use right and interpreting the transfer dilemmas underlying the present legal system; applying the research method of theoretical analysis and practical discussion to the experiment mentioned above, in order to realize the successful combination between the homestead-use right legal system and the practical need in the social economic development.The principle views are to agree with the legalize of transfer the homestead-use rights and the restore of its property features to manifest the value of efficiency, so as to maintain the proper benefits of farmers and to promote the coordination progress of coordinating urban and rural areas, and to realize a better and faster development of social economy eventually. The thesis is consisted of five parts in content. The first chapter and the second chapter is the therapy approachment about homestead-use rights. The third chapter and the fourth chapter is the positive analysis about the present legal system and reform. The fifth chapter is construction of the homestead-use rights legal system. The details as follow:Chapter 1 is the overall statement of the legal system on homestead-use rights. This part introduces the basic theory of homestead-use right from the aspects of history, conception, features and content. Basically, the homestead-use rights which is one of real rights is an independent and integrated real rights, although it concludes indemnificatory. Chapter 2 is mainly about the necessity of free transfer of the homestead-use rights. In my opinion, the aim of current legal system should be modified, the aim of efficiency should be taken into account in order to make free transfer of The homestead-use rights come true. In this chapter, the author studies on the necessity of free transfer of The homestead-use rights based on value objective , theoretical basis and important meaning.Chapter 3 is the dilemma on transfer of the homestead-use right under the present legal system. This part positively reveals the malpractice resulted the dilemma under the present legal system, no matter in the legitimate limited transfer or in the law-forbidden free transfer. The root lies in the divorcement of law and practice, meanwhile, it else means the necessity and urgency of reforming the present legal system.Chapter 4 is mainly about evaluations and analyses of transfer legal system of the homestead-use rights which are being used in the Chengdu-Chongqing experimental zone concerning comprehensive reform of coordinative urban-rural. Objectively speaking, the pattern of exchanging between the homestead and houses happening in Chengdu and Chongqing exerts positive influence. But its essence also lies in requisition of government. Also, it has shortcomings about the province of application and failure to protect farmers'profits. For this paper, the most important thing is that this pattern rests on the assumption that the homestead-use rights can not be allowed circulated freely, it doesn't change current transfer legal system of that right fundamentally, and explicit and implicit problems relevant to this have not been solved completely.Chapter 5 is mainly about reformation and innovation of transfer legal system of the homestead-use rights. After former research about the direction and goal of this reformation, this chapter will focus on new transfer legal system of the homestead-use rights. To begin with, the author will make clear that whether characteristic of security will give rise to non- transfer of the homestead-use rights, as well as relationships between characteristics of security and real estate. In addition, the author will present a concrete plan, which divide the whole process of transfer of the homestead-use rights into three parts-designation of the right, acquisition of the right and use of the right. Each of these parts respectively belongs to different kinds of guidelines. This plan will reconcile equity with efficiency, so will characteristics of security and real estate, as a result of this, capacities of profit and disposition will be corrected, and this in turn contributes to free transfer of the homestead-use rights. Finally, the author will make two auxiliary legal system, issuing the ownership certificate after confirmation of the homestead-use rights and building a land exchange, which could not only protect free transfer of the homestead-use rights, but make the market and institution about transfer more standardized by means of avoiding the harmful impact possibly caused by this free transfer.