The Research On The Legal Problems About Homestead Circulation

As an indispensable part and important type of rural land,rural homestead plays an important role in the farmers’property, the right of use of homestead is going to be the farmer’s basic property right. However, both of the two problems whether homestead can transfer and how to transfer have not been solved into a conclusion. In order to solve those problems, we passed the Land Management Law that only gives several general and abstract provisions. This attitude has not been changed in the Property Law,even though it has been called the most strict law in the legislative history of National People’s Congress because it had been reviewed for seven times. In one word, the Property Law ignored the provisions of the homestead again. This paper regards homestead right as research object. Firstly, the writer has discussed homestead’s present situation of legislation, justification and local reform on the base of respecting facts. Secondly, the writer elicits the problems of current homestead transfer system pointing to the present situation. Finally, in order to provide a reference for the further development of the country’s homestead system, the writer gives several advices to perfect the homestead transfer system according to the disadvantages of it.This paper is divided into four parts:The first part describes the basic components of homestead right. By means of analyzing the concept, nature,power of the homestead and the history,the writer leads to the three focal points of our current homestead transfer system.The second part investigates the present situation of the homestead in China mainly from three aspects. First of all, the writer points out the legislative situation on the basis of a comprehensive survey and summary of the legal provisions of China’s rural legislation of Homestead Right. Next, by means of viewing a large number of rural residential land cases, the writer summarizes the legal norm of homestead in the judicial practice field. At last, the social reality of the actual operation suggests the brave practice of local reform.The third section analyzes the problems of the current homestead transfer system. Chapter three puts forward the problems or disadvantages of the circulation system in legislation and judicial practice according to the analysis of the current situation of land circulation.The fourth part presents the writer’s advice and improvement measures to the current homestead system. The author puts forward some constructive suggestions from the system itself and other supporting facilities aiming at the disadvantages of the system that analyze in the third part.