On The Elimination System Of Rural Housing Land Use Right

The rural housing land use right system is the basic system that directly relate to the survival of hundreds of millions farmers and the stability of rural social. But in practice, operation effect of rural housing land use right system is not positive, and had many problems, such as homestead area exceed the standard, residential idle phenomenon. It is the main reason that the elimination system of rural housing land use right is imperfect. At present, At present, China is actively promoting the rural land reform, and the homestead system is the key question to reform. In order to make the land reform can conduct in the condition of orderly and lawful, we must perfect the elimination system of rural housing land use right in aspects of the theory and legislation. This article starts from the status of the land use right system, clearing the attribute of housing land use right is real right, analyzing the related theory, such as the basic rules of the change of real right and balance of autonomy of private law and public interest, specific interpretation of the reasons for the elimination of rural housing land use right and the existing problems. Through the indepth analysis and the carding system, I think it should be further emphasized that the attribute of housing land use right is real right, to comply with the basic rules of real right change, and reduce inappropriate administrative intervention. Under this concept, through the implementation of registration system, improving the relevant laws and regulations, Construction of fair mode of distribution,and so forth, to improve and perfect the elimination system of rural housing land use right, ensure the smooth implementation of the reform of the rural homestead.This paper is divided into five parts,The specific contents are as follows:The first part: To define the related concepts and introduce the status of legislation systematically. Firstly, introduced the basic concepts of the homestead, the homestead right of use, the elimination of homestead right of use, then analyzed characteristics and properties of the homestead right of use. the homestead right of use has the following characteristics: identity, free of charge, procedural, no time limit and the content of the right is limited. In the determination of properties,through the analysis of the point of view of the scholars, come to conclusion that the homestead right of use belong to usufruct. Elimination of housing land use right can be fall into two types, the absolute and relative. Secondly, To introduce Current legislation of housing land use right systematically, from the three level of Constitution Law and regulation.The second part: To introduce the basic theory of the system. focuses on the analysis of the property right theory, the publication of real right theory, the balance of autonomy of private law and public interest theory. Holding the view that as a type of real right, housing land use right haves the rights of harvest and a certain disposition, and Action object is not homestead, but the homestead right of use. The elimination system of rural housing land use right is a type of the change of real right, therefore it should comply with the basic rules of real right change, especially the rules of property transference publication. Introduced the concepts of autonomy of private law and public interest theory, analyzed the importance of balance of their relationship for improving and perfecting the elimination system of rural housing land use right.The third part: Introduced The cause of the elimination of housing land use right, including the homestead back, expropriation, abandon, house sites disappear due to natural disasters or other reasons, assignment, alienation and homestead replacement. Introduced various reasons reflected in the laws and regulations, analyzed of situations may arise.The fourth part: Introduced the existing problems in the elimination of housing land use right. Including homestead retrieving conditions is not reasonable; homestead idle problem has not been solved; ignoring the protection of property rights of farmers in the process of homestead expropriation; Elimination registration enforced low; subject of the right of homestead ownership dummy.The fifth part: According to the combing of status quo and the analysis of problems, put forward several suggestions for improving and perfecting the elimination system of rural housing land use right. Namely improving the relevant laws and regulations; Balancing the relationship of autonomy of private law and public interest theory; Respecting farmers’ will; Determining the reasonable compensation standard; Implementing the registration of elimination system.