On The Legal Issues Of Transferring Rural Homestead Use Right

With a welfare and social security function, China's rural homestead has a strong relationship with the interests of hundreds of millions of peasants. The existing law is based on the basic housing considerations of the farmers, severely restricting the right of free transferring of rural homestead use right. However, in practice, free transferring of rural homestead use right is widespread, the invisible market has formed; and China has a large population, few lands, the population continues to increase; the contradiction between the growing of population and the scarcity of homestead has become worse and worse, it become necessary to allow peasants to freely transfer homestead to achieve most optimum distribution of homestead resources.In this paper, the writer starts with the basic theory of the use right of homestead, through the analysis of the current status of homestead use right transferring, thinks that is necessary and feasible to let peasants transfer homestead freely, and the relevant system needs to be explored.This essay is divided into three parts except the introduction and conclusion, about 22,000 words.The first part describes the meaning of the use right of homestead, the legal characteristics, the legal nature and scope of rights; the meaning and history of evolution of transferring homestead use right. The existing law provides that homestead use right refers to the rural collective economic organization members acquire and use the land according to the law, the rights of constructing of residential and other ancillary facilities and use within the demands of the law; has free access, indefinite use, the original right person of access mainly restricted to members of the collective economic organization, the object of the right limited to the land of the collective ownership, the limitations of the rights and other features. The usufructuary right of house sites is received by the public and "property law" has recognized it, which provides a theoretical and legal basis for the free transferring of housing sites. The transferring of homestead use right is the predominant mode of using homestead, in this paper specially refers to transferring of homestead use right resulting from sale of rural housing. Founding 60 years, the transferring of homestead use right has experienced three stages, transferring freely, relatively free transferring and subject to strict restrictions on the transferring at present.The second part mainly discusses the present situation of the transferring of homestead use right, pointing out the existing and conducing problems of the present housing sites system and makes assessment decisions for the judgment standard of disputes in the practice. Then, the writer analyses the different points of view in the academic circle about house sites. The author's view is that allowing the free transferring of housing sites has the feasibility and necessity. The specific reason is to allow the free transfer of housing sites already has the legal and policy basis, is very important to accelerate the urbanization process of China; is an effective way to maximize its value, which can effectively safeguard farmers, in line with the wishes of the majority of farmers and will not lead to farmers lose social security; is the necessity of implementing the value and policy of rationally using every inch of land and optimization of China's land resources; "to take advantage of as the center" concept of the modern property rights, house and land not be divided, and the fundamental values and legal doctrine - efficiency and fair absolutely require the free transfer of housing sites.The third part is to allow free transfer of the homestead use right should improve the relative systems. The improvement of transferring system of homestead use right in china should be guided by the principles of the collective ownership, reasonably using foreign experience and fully protecting the rights and interests of the farmers and collective economic organization. And also the registration system, peasants housing security fund system, the responsibility law of violating the homestead use right rules and the rules of the period of homestead use right should be improved. At the end, the free transferring of homestead use right should perfect the matching household registration system and establish the rural homestead market.The study idea is: using the basic theory of the homestead right and the history of evolution of its transfer as the starting point, pointing out that in practice the invisible market of transferring homestead use right has formed, but the lack of legal regulation caused a lot of problems and disputes of the responsibilities, and create serious loss of homestead benefits and other issues. At present, allowing the free transfer of homestead use right has the feasibility and necessity. In the necessity, the writer thinks that allowing the free transfer of rights can effectively safeguard interests of the farmers, optimize the allocation of resources, accelerate the urbanization process of China, is an effective way to maximize its value. In the feasibility, the writer proves it from six aspects, the free transfer not to lead to farmers lose social security, has the legal and policy basis, in line with the wishes of the majority of farmers. "To take advantage of as the center" concept of the modern property rights, house and land not be divided and the fundamental values and legal doctrine - efficiency and fair absolutely require the free transfer of housing sites. At last, the writer thinks the free transfer of the homestead use right should have a sound registration system, establish peasant housing security fund system, improve the responsibility law of violating the homestead use right rules and the rules of the period of homestead use right, and perfect the relevant matching systems.