Concerning The Construction Of Legal System Of Right To Mortgage Rural Homestead

Rural homestead was originally used for farmers to build houses, and it only has the function of safeguarding farmers’ life. But after our country begins to implement the rural housing registration of property right, it has become the focus of legal theory and legal practice and hot spots that whether rural homestead-land-use-right can become mortgage. In our country’s academic law field, people have different views toward this question. All sorts of theories such as "Ban on Mortgage","Free Mortgage" and "Conditional Mortgage" are successively put forward."Ban on Mortgage"" thinks that the main function of rural homestead-land-use-right is social security, but it does not have the function of transfer and profit, so homestead-land-use-right should be prohibited."Free mortgage" is based on the property attribute analysis of rural homestead-land-use-right, and it thinks property should be transferable, thus it advocates that homestead-land-use-right can be privately mortgaged. But "Conditional Mortgage" puts forward a compromise idea based on reference of the former two views. Such idea claims that on the one hand, rural homestead-land-use-right may be mortgaged; But on the other hand, it believes that the mortgage of rural homestead-land-use-right must meet the legal conditions. In legal practice, as for whether rural homestead-land-use-right can be mortgaged, it has given a consistent answer, namely rural homestead-land-use-right cannot as collateral. In the view of lawmakers, rural homestead-land-use-right assumes the function of social security. However, since the provisions of the current legislation, has no such provision that it may be mortgaged, people shall not engaged in such behaviour which does not allowed bylaw.These above insights each have their advantages and disadvantages. If we use the idea of "Ban on Mortgage", thus we will deny the way farmers use of rural homestead-land-use-right mortgage to improve production and living, etc, is bound to limit their expanded reproduction. If the idea of "Free Mortgage" is used, it can lead to the mortgage of rural homestead-land-use-right,without restriction and even lead to malicious mortgage consequences, and thus affects the normal life of farmers.Objectively, the view of "Conditional Mortgage " is the most desirable. On the one hand, it licenses right of rural homestead-land-use-right mortgage, thus it provides a possibility for the vast number of fanners through the mortgage money funds required to expand reproduction. On the other hand, this kind of mortgage provides necessary conditions, therefore it ensures the rational use of this kind of mortgage, and can also contain malicious mortgage situation.Based on such consideration, this article takes "the Construction of Legal System of Rural Homestead-Land-Use-Right" as a topic. And based on the analysis of property rights theory, it explores how to build legal system of rural homestead-land-use-right in accordance with the characteristics of our country, which not only has very important social significance, and has important theoretical significance. The full text mainly is divided into the following three parts:In the first part, this paper explains the basic theory of rural homestead-land-use-right mortgaged. First of all, it expounds the concept and characteristics of rural homestead-land-use-right. Rural homestead-land-use-right refers to that the farmers shall have the right of the use of collectively-owned land, or build houses for himself, or affiliated facilities built for the life needs, and the houses or affiliated facilities in the possession or use of usufructuary right.Rural homestead-land-use-right has the following characteristics:the specificity of sharing rights; the specificity of use;"A house a home"; welfare; statutory; usufructuary right; the dependency.Secondly, this paper elaborates the significance of homestead-land-use-right mortgage, homestead-land-use-right not only has legal significance, but also has social significance. Again, this paper expounds the theoretical and realistic predicament of homestead-land-use-right mortgage. Theoretical predicament mainly refers that academic field has various opinions toward whether this kind of right can be mortgaged, while reality mainly refers that whether the right can be mortgaged lacks of related system support.In the second part, the paper discusses the prevailing conditions of homestead-land-use-right mortgage-building property right registration system in the countryside. Homestead-land-use-right mortgage inevitably involves the registration matters related to the rural housing property. First, this paper discusses the definition and features of rural building property right registration. Secondly, it elaborates the significance of rural tenement property right registration. Once again, it discusses the defects of the current rural housing registration system. Finally, it expounds the improvement of the rural housing registration system.In the third part, this paper discusses the principle of right to use homestead-land-use-right mortgage and construction of concrete system. Firstly, it elaborates the basic principle of the homestead-land-use-right mortgage shall follow:principle collective ownership of land; principle of maintaining the basic interests of the farmers; the principle of protecting the rational use of arable land. Secondly, this paper discusses the construction of concrete system of homestead-land-use-right mortgage. The system of homestead-land-use-right mortgage should include:the perfect system of the mortgagor and the mortgagee system and the realization of mortgage. Finally, the paper states the supporting system to set up and improve right of homestead-land-use-right mortgage. In order to practically guarantee the system of homestead-land-use-right mortgage be effectively implemented, we must establish perfect social security system, improve the intermediary institutions, and sufficient information communication platform and so on.