Thought On The System Of Circulation Of The Right To The Use Of Homestead

The agriculture and countryside are confronted with new challenge with economic development of our country’s coming into kind of new common status, government documents.the party central commission has published a series of government document in order to push the transformation of rural land system which has been the sole key to the three rural issues and instill energy into the development of countryside and increase of farmer’s income. The rural system of land contract and operation has been improved which also achieved a lot. The next emphasis of central government for transformation will be put on the housing security system for farmer and changing the existing system of rural residence land, of which the core is the transfer of right of rural residence land use. At this very moment, the related research will not only enrich the theory basis for right of use of homestead but also is expected to benefit the development of practice.Combined with the method of positivism,this paper tends to put much emphasis onto the discovery of existing weak point of the circulation system of right of use of homestead,then analyze reasons and comes up with exploratory solution according to the existing problem.Chapter I explains the institutional theory of right to the use of homestead which is divided into two sections. First section introduces the status of development of law and policy for the system of right to the use of homestead and summarizes the attitude of the party central committee toward the property right to the use of homestead at different times in order to find right direction of the system of the rural system of right to the use of homestead under new circumstance and stage. Section two introduces the concept, nature and ways of circulation of right to the use of homestead which also provides theoretical basis for illustrating the circulation system of the right to the use of homestead in the following passage.Chapter II analyzes and summarizes the existing problems of the circulation system of the right to the use of homestead from three levels of legislation, practice and judiciary. This chapter firstly generalizes legislative status quo of the circulation system of the right to the use of homestead and finds the problems in the field of legislation. Then this chapter analyzes the invisible circumstance of circulation system of the right to the use of homestead which is not protected by the living laws and also illustrates weakness and reasons for it.finally,this chapter sums up the troubles that the existing system of right to the use of homestead brings to the judiciary.Chapter III demonstrates the legitimacy and feasibility of allowing the circulation of the right to the homestead. This chapter proceeds with the introduction of scholar’s opinion on the circulation of the right to the homestead which may be concluded into three types, namely theory of permission of circulation, theory of prohibiting of circulation and theory of conditional circulation and indication of the author’s opinion. the author is in favor of the theory of conditional circulation. The theory of circulation is a kind of effective explore on the reform of the circulation system of the right to the use of homestead. However, the author doesn’t agree upon the interpretation of the condition of the conditional circulation. Then this chapter illustrates the legitimacy basis for release the control over the circulation of the right to the use of homestead from the angle of juridical logic and arguments the avoidance of potential risk brought by releasing the control over the circulation of the right to the use of homestead from the angle of opposite side.Chapter IV puts forward advice for transforming the living circulation system of the right to the use of homestead. One idea is prohibited within the framework of land use right transfer, in order to solve the housing homestead circulation problems, binary legislative system can be implemented in rural housing and land issues, while the introduction of a statutory tenancy rights; Second, the idea is to allow the land use right conditional circulation, which clearly is a prerequisite for land use right of ownership, the proposed transfer of land use right transfer into circulation and farmer-led government under the auspices of the district at the legislative level, leading farmers to transfer under strict conditions, to prevent lifting the ban house after the transfer of the right to use the base lead to a reduction of arable land.