Research On The System Of The Right Of Using Homestead

The word of homestead belongs to the law of our country and has the ethniccharacteristic. The institution of homestead is the result of the specific historic stage.It was born in early new China and adapted to the limitation of socialism ideology inpolitics, the need of the development of the socialism economy in economy and thecondition of the excision between urban and rural areas. The current double-trackright system that the ownership and the right of using homestead has evolved, inwhich the ownership belongs to the collectivity and the right of using homesteadbelongs to peasants. Gaining the right of using homestead requires applying and thecirculation of the right of using homestead is not allowed. Such system designembodies the policy arrangement of keeping the stock of land and the politicalconsiderations of ensuring the basic survival conditions of the peasants and the ruralsocial stability. However, it deviates from the right of using homestead’s attribute ofusufructuary right and the development of the socialist market economy. Meanwhile,it contradicts the integration of the rural and urban areas and the third plenary sessionof the eighteenth CPC central committee’s mind of making the market be the decisiverole in allocating resources and ensuring the peasants’ usufructuary right ofhomestead. And it’s the crucial reason that the assets value of the rural homesteadcannot fully play. In addition, the lack of the initial acquisition procedure of thehomestead leads to various chaos in the process of the use of the rural homestead andsets up a system barrier for the orderly opening and running of the homestead’ssecondary market, which deviates from the academic mainstream and the policy trendpreferring the releasing of the homestead. This paper starts from the source and flow,the advantages and the disadvantages of the current system of the right of usinghomestead, with the breakthrough of the reconstitution of the system of the initialright of the use of homestead and the perfect plan of the ownership system, the authorputs forward the view of optimizing the system of the right of using homestead.Through the angle of justice and order, by analyzing the problems, such as the right ofusing homestead’s lack of real right, the ambiguity of the main body getting the rightof using homestead, the incomplete getting process, the vague expression of the rightof using homestead, the author advocates for the real right’s regression of the right of using homestead and the perfection of the system of initial getting the right of usinghomestead by the way that getting the right of using homestead should be establishedby the contract between the peasants and the rural collective, the government’sregulation functions should be played by administrative confirmation and registrationshould be the basis of confirming the right of using homestead to ensure the real rightin attribute and the public welfare in function of the use of homestead to guarantee itssocial security function, prominent its property nature and lay the foundation of theformation and the development for the fair, orderly, stable, efficient circulation marketof the homestead.This paper’s main contents are divided three parts as follows:In the first part, the author defines the concepts related to the right of usinghomestead and introduces the evolution of the system of the homestead, which theauthor divides into two periods during which the peasants as the owners and thecollective as the owners according to the author’s understanding.In the second part, the author analyses the current homestead system from fouraspects including the main body of the homestead’s ownership, the main body of theright of using homestead, the way of getting the right of using homestead and thecontents of the right of using homestead. On that basis, the paper mainly introducesthe problems including the lack of the real right of the homestead’s ownership, theimperfection of the lack of the initial acquisition procedure of the homestead existingin the current homestead system and various chaos in the process of the use of therural homestead.In the third part, the author studies the systems of the ownership of homesteadand the right of using homestead from optimizing the system of homestead. Theauthor thinks that the feasible way of solving the current problems of the system ofthe homestead is to start from the right of using homestead. And the author putsforward the solution way by analyzing the theory of the law, the economics and thesociology. As to the reconstitution of the system of the right of using homestead, theauthor thinks the usufructuary right legal relationship between the main body of theownership and the main body of the right of using homestead by contract on thepremise of the perfection of the system of the ownership of homestead. Meanwhile,the paper clarifies the nature of the right of using homestead and discusses the mainbody and the conditions of the right of using homestead in initial acquisitionprocedure to achieve the target of the complete power of the right of using homestead, the ownership stability and the right safety.The author tries to reconstruct the system of the right of using homestead torealize the link of the system of the right of using homestead and the traditionalproperty rights acquisition system, by which the secondary market of homestead canbe formed and runs orderly and embodied the resources and value functions better.