On The Cognizance Of The Subject Qualification Of Using The Rural Homestead

Since the performance of the policy of reform and opening up, the rural economy develops rapidly, with which the rural homestead area continued to expand, which took up a large number of farmland at the same time. With the development of cities, after the demolition and removal of the houses on the homestead, relevant parties can easily obtain compensation amounting to millions even ten million yuan, but there is a blank in provisions of laws that what kind of people can become accessible to the wealth.In this fuzzy state, many people began to use the loopholes of the existing systems for the benefits of themselves,on which there is no measures to be taken because there is no clear legal basis, whether administrative or judicial. Therefore, the author believes that only when a clear and complete system is established the disputes can be settled, and in order to complete the system construction, the related theoretical issues and limits should be clarified first. This paper attempts to discuss the issues related to the qualification of rural homestead user right subject related with a wish to benefit the establishment of the law system in relation to homestead.Except the part of introduction and conclusion, this paper consists of three parts.The first part is to define the relevant concepts in connection with the subject of the right of using the rural homestead, introduce the relevant content of the subject of the right of using the rural homestead in the current laws, regulations and local regulations, analysis the legislative history and existing problems and identify the objective of the research. The second part expounds the problems of the subject of the right of using the rural homestead. From the aspect of theoretical research, most researchers confuses the qualification of collective economy organization membership and the subject of the right of using the rural homestead and focus on the research of the qualification of collective economy organization member, which defects in the direction in author’s opinion. From the practical perspective, cases are introduced which the author act as attorney, the aim of which is to reveal the confusion of the judicial practice resulting from the existing land management system.In the third part the author proposes some legislative proposals pointing at the problems provided in the second part:firstly, the author proves the meanings of determining the subject of the right of using the rural homestead in laws; second, according to the current legislation situation and the objective situation in the land management system, the constitution of the subject of the right of using the rural homestead are defined;third, the author proposes the method of cognizance of the subject of the right of using the rural homestead in the homestead application process and puts forward the suggestions of dealing with special cases;fourth, according to the nationwide on going land clearing census work, the author put forward suggestions on the cleaning up work pointing at those who do not have the subject qualification of using the rural homestead, do not meet the requirement of applications, as well as illegal users of the rural homestead.The author hopes that this paper could provide necessary reference and help for the legislation and judicial practice through the study of the issues in the subject qualification of using the rural homestead.