China Land Use Right Transfer Legal System Research

The right to use house base is a special beneficial right of real estate in our china.This system on the right to use house base relates to the living of 900,000,000 farmers directly and therefore should be given enough attention in legislation and theorietic study. But in our country,we are still seriously lack of legislative resource and the introspection to the legal nature and characteristics of the right to use house base and to the current shift system. In view of the present situation, This thesis analyses and probes into the problem of China's shift system of the right to use house base.In addition to preface,this thesis is composed of three parts.The first section is the analysis of house base and the right to use house base. House base especially points the village collective land that can be obtained by the residents to construct their houses. To the scope, it should be the place including countryard cover. Through comparision between three representive definitions of the right to use house base, the thesis thinks it is a right that farmers obtain house base by law from their collective economic organization to construct house and live in it. From historical angle, the right to use house base can be divided into the right to use rural house base and the right to use city and town's house base, but after the enforcement of《the law of land management of the People's Republic of China》in 1998, the right to use house base specially refers to the right to use rural house base.The second section analyses and induces the legal nature and characteristics of the right to use house base. Through comparision and analysis between the right to use house base and such similar rights as easement, the right to use land and the right to settle,we can see that the right to use house base is obviously different from the other four rights of beneficial use of a property. So it is an independent property right. It not only legally satisfies the essential components of a right,but also practically is regarded as"family property". It's also a right of real estate, it satisfies the characteristics of property right and in the world, the right to use house base is prescribed by all nations' civil laws or property laws. It is a beneficial right, not a property right of security, it satisfies the three characteristics of a beneficial right, that is, benefit,independence and occupation. Because our country's public ownership system and the system of the right to use house base burden the function of social insurance, China's right to use house base differs greatly from traditional beneficial right. Compared to other ordinary beneficial rights, the right to use house base satisfies the following characteristics: restriction on the subject, restriction on the use, gratuitous and endless, single object, imitation in number and flow.The third section refers to the reconstruction of the shift system of the right to use house base. This section concentrates on three parts:The first part is the main rules of this current system. The second part is the introspection to the current system. The third part is the reconstruction of China's new system.In our contry, house base can be obtained originally or derivatively. As the derivative obtainment only plays a slight role in China's shift system, the thesis mainly induces and summarizes the essential factors of subject,obtainment procedures and substantial examination of the original obtainment. The extinction of the right to use housebase should satisfy certain legal facts, including the four ways: the right to use house base is taken back, the house base is taken over, the right to use house base is abandoned, and the house base is extincted. In order to expose it should be reformed, the thesis also analyses theorietic blemish and induces the conspicuous practical problems of China's current shift system of the right to use house base.On the reconstruction of the new shift system of the right to use house base, I research this promblem from two ways. One is the principle of the construction, including the principle of meeting the development of Chinese market economy, the principle of stressing personal interests and considering collective and national interests,the principle of defining the ownship of house base,the principle of drawing lessons from mature international legal experience,the principle of stressing efficiency and considering justice,the principle of drawing on the experience from legal practice,the principle of intensively using land and so on.The main measures on reconstruction of China's new shift system of the right to use house base are: Firstly, we must perfect the system of ownership of house base, define the subject of the right to use house base and at the same time establish housebase user's rights to get profits and make final decisions. Secondly, the limitation to the status of derivated subject should be released, also we should improve the obtainment procedure and highlight the owner's will; Thirdly, we should construct the system of using house base with consideration of charge step by step. First we can charge for the extra housebase, then charge for the housebase in standard norm. Fourthly, it is necessory to affirm that the right to use housebase is real right with a fixed term. The term limitation of 60 years is fit to the system, assisted with the continuous exhibition when it expires.