Research On The Circulation Of The Homestead Right Of Use Under The Background Of The Reform Of Rural Land System

In the legal system of rural land in our country, the homestead right of use system is a very important part of the system, the setting is reasonable directly affect the quality of life for rural residents, in a larger sense will also affect the country’s overall economic development. Due to special reasons of China’s historical development, the homestead has its particularity, not only has the characteristics of civil rights, but also with the administrative color."Property law" provide the provisions of the homestead right of use, but it contains very little content, practical operability is not strong; the policy provisions on the homestead right of use is relatively specific, but limit the circulation is the central idea of this kind of provisions. In reality, there are a lot of land use right transfer phenomenon, with the legal disputes increase gradually and the situation is becoming more and more complex. The court accept such cases, they often find it hard to start, but they have to trial, the decisions made is unfair, the reason is farfetched. The transfer of homestead right of use has become a must to solve social problems. In the Third Plenary of eighteen Session "decision", in the reform of rural land system is an important aspect,"decision" made a directional provision, release a signal that the homestead right of use can be transferred. But the specific measures for the reform of homestead system still needs to explore in practice, the choice of transfer pattern in the process of reform of the system of rural homestead is the urgent problem to solve. The author mainly according to the related theories and practical path to study the use right of homestead circulation.This article is divided into four parts:The first part:the overview of the homestead right of use. The concept of the homestead right of use mainly with the provisions of laws and theories to elaborate; the homestead right of use is identity,"a house", free of charge, no time limit, the administrative examination and approval and limit the transfer of homestead; history is mainly divided into private stage when the new Chinese was established at the beginning and the public stage continue today; from the angle of the traditional civil law system and the reality of law to analyze the homestead right of use.The second part:the necessity of homestead right circulation. From the main theoretical basis of the homestead right of use circulation and realistic necessity to discuss. Usufructuary right disposition power and perfection of the principle of equal protection of property rights require the transfer of the homestead right of use. Accelerating the urbanization process, rural intensive utilization of land resources optimization allocation and the market economy require the homestead right of use goes to the market to circulate.The third part:the status of homestead right circulation. Legal status, practice and the judicial status mainly expounds the homestead right of use circulation. The law and policy, mostly do not allow the circulation of homestead right of use; the main form of the homestead right of use circulation is sell, lease and mortgage; there are problems existed in the practice,such as "small property room" is banned repeatedly more than, the law in circulation in the hidden market can not play a good role, homestead vacancy caused resources waste, limiting the homestead right of use circulation obstacle to coordinated development between urban and rural areas;the existing legal system to bring difficulty of law applicable and the balance of interests to the trial court.The fourth part:the thinking of reform of homestead right circulation. On the homestead circulation, there are the main doctrines of "free transfer said","the limited transfer said","sub regional free transfer said," the first and the second doctrines consider China reality, blindly allow or restrict the transfer of homestead right of use circulation is very one-sided, the third said is reasonable,after a full consideration of the regional difference and the gap between rich and poor in China, according to the different market demand for the right to use homestead,then treat them respectively, the author agrees with the theory. Free trading is not allowed in the reform of homestead system, but expand the homestead right of use, and the reform is a slow process. About the path of the transfer of the use right of homestead, We must consider the division of rights firstly, then choose the "reserves the right to+circulation" mode, we must insist the land collective ownership, open the transfer of the use right of homestead limited. Distinguishing the different situation, transfer process should pay attention to enjoy not only farmers’interests of the transfer, but also give consideration to the collective; after the transfer, the period of use should be limited, the use of homestead organization cannot change the homestead’s living destination.