The Land Use Right Transfer System, The Study

Because personal land ownership is forbidden in our country, it is more important to protect personal land use right in real right law. The rural residential land use right is one of usufructuary rights which is related to the benefits of 9 hundred million of farmers, and whether it is transacted freely or not is still related to the matter that trillions of farmer settle down and get on with life. Therefore,to establish fair and equitable transaction system of the rural residential land use right has great practical significance for rural stability and economic development.In our current system about the transaction of the rural residential land use right, one side , the free use with deadline results in occupying more rural residential land in disorder, and the cultivated land keeps on decreasing, in the same time, the problem that farmers leave the rural residential land unused and waste is serious in making use of the rural residential land, another side, the rural residential land use right that farmers possess is not a true private right but a half-baked property right, therefore the property value of the rural residential land use right is concealed because of the limit from our current law and regulations. Moreover, the social security function of the rural residential land use right is being weakened, and its economic function is appearing with the development of social market economy. The great difference between the rural residential land use right and other land use right makes a new unfairness. Thus, the transaction of the rural residential land uses right calls up a reform of our current law and regulations. it is necessary for our law and regulations to use surface right for reference, and a new system of the transaction of the rural residential land use right must be built, which will make the rural residential land use right to be a really private right and to transact freely as other land use right. And it is valuable for the addition of farmers'income, for the new development of the rural areas, and for the stability and the harmoniousness of our society.This dissertation bases on the results of widely collected material about study on the system of the rural residential land use right, and has a further study on the. I think there will be more advantages to permit the rural residential land to transfer freely among ordinary social members. I put forward the opinion that the rural residential land use right should be reformed according to surface right, and makes a system arrangement for the transaction of rural residential land use right. The dissertation consists of five parts.The first part of this dissertation is the overall elaboration about the necessity and the advantages of. I disprove the opinions that forbidding the transaction of the rural residential land use right is for the social security and protecting the cultivated land from being destroyed. The social security function of the rural residential land use right is being weakened, and the transaction of the rural residential land use right does not conflict with protecting the cultivated land. And this part also analyses from the theoretic and experimental angle that the transaction of the rural residential land uses right is beneficial for the development of our society and economy.The second part of this dissertation is about the completely free transaction of the rural residential land use right. Paternalism exists in the action that our government treat farmers and the rural land, which prohibits the free transaction of the rural residential land use right. The free transaction of the rural residential land use right is the inevitable result of the development of market economy, and is also the farmers'rational choice. In this section, I point out the problems during the original establishment of the rural residential land use right, then I put forward my proposal that the administrative power should be eliminated from the original creation of the rural residential land use right, and the private right should be created by contract.The third part of this dissertation is about the model that farmers and the collective should have the right to decide the transaction of the rural residential land use right.In the first, I analyze the three models about the transaction of the rural residential land use right, in which different body, the farmer, the collective or the government, respectively decide the transaction of the rural residential land use right, and I point the advantages and the malady in the three models, further, I argue that farmers and the collective should have the right to decide the transaction of the rural residential land use right, and I also design the solution to resolve the problem that could occur in the transaction of the rural residential land use right.The fourth part of this dissertation is about the retainment of the collective land ownership and how to make the collective land ownership effective. At present, the collective land ownership is ineffective, which prohibits the rural residential land use right from freely transacting. After analyzing why the subject of the collective land ownership is not factual, I give the measures to make the collective land ownership subject effective.The fifth part of this dissertation is about how to reform the rural residential land use right according to the right of superficies , which will be in accordance with the right of the use of the state-owned land in urban areas. the reform of the rural residential land use right according to the right of superficies. The collective land ownership is the basic of the transaction of the rural residential land use right, because the rural residential land use right bases on the collective land ownership. Whereas the rural residential land use right is similar to the right of superficies in traditional civil law, using the theory of the right of superficies for reference has important significance to reform the rural residential land use right. Therefore I think that the uniform system of the right of superficies is the road to reform the rural residential land use right. I also analyze different types of the right of superficies, moreover I put forward the opinion that different type of the right of superficies is suitable to different body who own the rural residential land use right.In a word, remaining the collective land ownership, to establish the system of uniform surface right, and to permit the rural residential land use right to transact freely are the inevitable requirement of the development of social market economy, and also the demand for civilization, and especially beneficial for promoting the rural prosperity. Such actions will bring great benefits to our all social members.