Study On Transference Path And Transference For Use Right Of The Rural Residential Land

Compared with the traditional civil rights, the use right of rural residential land is a young right. From 1960s to the present the rural residential land has only fifty years’ history. If the history of the use right of rural residential land counts from the real legal recognition it is only ten years. Because it is produced in the special historical period of China, and keeps close relationship with the social nature of China and the specific national conditions, the Chinese color is extremely strong on the set of this right of civil law. In addition, such a limited number of years of development also makes the system design can not be detailed and complete, so with the development of practice, the problems of the rural residential land system have burst out. At present, the use right has gone into the bottleneck period, and the specific performance is that the state for the purpose of public policy consideration does not allow the free transference, that the higher level legal norms have an obscure attitude, and that the judicial referee is difficult, even the contract effects of selling houses on rural residential land are exactly the opposite. Stopping the transference of rural residential land has also stimulated a large waste of land and illegal transference and other realities. The national policy, the market economy and the private property also confirms the correctness of the circulation. Then based on the necessity of reality and the value requirements, the use right of rural residential land should transfer, but how to achieve the transference, in other words, the path of choice is worth discussing. The view of collective land privatization advocates the rural land should belong to the peasants while the opinion of state-owned path hopes the country to manage as the owner. Besides, from a comparative law perspective some propose to introduce the statutory tenancy right and the right to the surface of land. Four paths have their own strengths and certainly their disadvantages are also very worthy of attention. At last the comprehensive consideration suggest that the right to the surface of land path is the best choice.