Our country is still a large agricultural nation, the rural residential land is still the important matter that trillions of farmer settle down and get on with life, Whether 745 million farmers lead a happy and peaceful life or not is relating the harmonious development of socialism; The land resource is limited, there is a contradictory relationship between rural residential land and cultivated land which is in reverse proportion.The continuously high-speed development of our country's economy and the continued increase of the population are increasingly creating excessive demand for rural residential land. The social security function and the social welfare nature of the rural residential land make it obtainable still free or approximate free at present. The relationship between the rural residential land and cultivated land become more and more intensive. Therefore,the rural residential land problem is connected with the harmonious development of relations between human and nature and with the realization of sustainable development strategy. In order to protect cultivated land ,prevent farmers from losing their dwelling after they sell their houses, the current law and regulations of our country strictly limit the transaction of rural residential land. However, our country is also a large agricultural nation which is making great strides forward to the modernization, market economy system is being built and further improved, migration of people between city and countryside is increasing frequently, urbanization is speeding up. Thus, the contradiction and conflict between legal system which strictly limits the transaction of rural residential land and social reality come into being. Therefore, to study the the question on the transaction of rural residential land use right has huge practical significance and theoretic significance. Benefited from the achievement of jurist's research, in addition to empirical analysis on widely collected material, I think it is more advantage to permit the rural residential land to transfer among ordinary social members under certain condition. This dissertation analysizes the disadvantage of strictly limit the transaction of rural residential land use right and the reasons why the rural residential land use right should be transfered, then put forward the opinion that the transaction of rural residential land use right should be permitted, and makes a system arrangement for the transaction of rural residential land use right, and put forward some solution for the problems which probably come out in the transaction of rural residential land use right .The dissertation consists of four part.The first part of this dissertation is the overall elaboration about the rural residential land use right. To study the meaning,the nature,the characteristic and the right contents of the rural residential land use right is the logical promise to study the possibility of the transaction of the rural residential land use right. The rural residential land use right is a kind of special usufructuary right, it was confirmed explicitly by the real right law, and completely has characteristic of usufructuary right, also has Chinese special feature. It is its attribute for rural residential land to be transfered under certain condition. Rural residential land in our country has many characteristics, such as: the restriction of body's identity, without deadline, the object particularity, quantity definition, the use with special and so on, it is a kind of welfare for the members of this economy collective, and plays the social security role to some extent. But these characteristics can not be the full evidences which limit the rural residential land to transfer. Our country law endow rural residential land with right of occupancy , right of use and part of the right of remuneration, but limits the right of disposition which obstructs it to be transfered freely among ordinary social members. It is the primary intention that I want to examine in this article.The second part of this dissertation is the study about the present situation and legislative investgation of rural residential land use right. Our country's rural residential land use right system forms and develops together with land system, the attached legislation is very obvious. There is few specialized legislation on rural residential land in our country, it generally serves the purpose of protecting cultivated land and prevents house site from occupying cultivated land. Viewed from history of legislation on rural residential land, the rural residential land of our country experienced the developing process that from farmers have property right and transfer the property right freely to they only have right of use ,the rural residential land use right can be transferred freely ,to the transaction of it is limited strictly. The value choice of strictly limit the transaction of rural residential land is: the first, to prevent rural residential land from occupying limited cultivated land; the second, to guarantee the farmers have their houses. But there exists conflict between such value choice and other value goals. To strictly limit the transaction of rural residential land has caused many problems in reality, such as: the business of village falls into difficult position; countryside house market which forms and expands slowly become an recessive,illegal market which transaction risk and crisis hide; judical practice which solves the dispute of house business in village falls into dilemma between legal rule and society reality.The third part of this dissertation is a study of inevitability about the transaction of rural residential land. I pay attention to the positive exploration of guangdong, zhejiang, shanghai area where economy is more flourishing or their economy developments more quickly, and believe: just like the reform and open up practice of our country ,the transaction of rural residential land is a process that to explore first, then to summarizes experience, finally to confirm by the law and the system .It is decided by the objective situation to realize the transaction of rural residential land among ordinary social members; is the inevitable request to develop socialist market economy and promote country productive forces; is the demand to adapt the movement of population ,change the unreasonable structure of our society in which urban and village are in opposition, and finally solve "Three Rural Issues"; is the inevitable request of modern real right idea which take the thing to be full used as the core; is the demand to improve use efficiency of residential land, make full use of existing residential land, and so on.In the fourth part of this dissertation, I study how to improve the rural residential land system, innovative ideas of this article lie in here. On the foundation of former analysis ,I think: it is more advantage to permit the rural residential land to be transfered in the forms of sell ,mortgage and rent among ordinary social members following the principle that one family can only apply for one residential land, they can't change the usage of its after transaction, and must transfer house and residential land together in transaction process and so on. It must have negative side to allow rural residential land to be transferred, just like you can't have your cake and eat it ,too. All the law is imperfectly ,it is impossible for law system to cater to everyone's interests completely, so it can only make a best choice among every interests which conflict with each other. The negative side of the transaction of rural residential land can be solved by other comprehensive coordinative measures, we can achieve the goal of protecting cultivated land through strengthening the land management administration, strictly keeping primitive assignment of rural residential land in check, causing the transaction object to be restricted in existing residential land; achieve the goal of letting farmers lead a happy and peaceful life through establishing a housing guarantee fund for farmers with the transaction proceeds of residential land and helping farmers who have sold out their houses by improving social security system. Make the negative influence of transaction of residential land to the lowest degree by improving other comprehensive coordinative measure,In brief ,to permit rural residential land to be transferred is more suitable to our country's actual condition ,It has more benefits than harm. Although I have tried my best to write this paper ,because my theory foundation and knowledge is superficial, there must have many omissions and mistakes in this paper, I am anxious my respectable teacher will give me more help, thanks!... |