Research On Mortgage Rules Of Peasants' Housing Property Rights

The mortgage of peasants' housing property rights is one of the important research topics in the field of economic law.On the Third Plenary Session of the 18 th Communist Party of China Central Committee," To promote the mortgage of peasants' housing property rights prudently and steadily" was proposed for the first time,The proposal of the permission of mortgage of peasants' housing property rights,not only brings an end to the longtime dispute about if peasants can mortgage their houses and house sites,but also supports the pilot work of peasants' housing property rights mortgage in national policy,which is of great theoretical and practical significance.However,related laws and policies about the mortgage of peasants' housing property rights are far from mature,especially the deficiencies of mortgage rules.Thus,the trial practice of the mortgage of peasants' housing property rights is faced with several problems.Therefore,the attempt to explore a set of mature mortgage rules of peasants' housing property rights,can put forward the pilot work,and implement peasants' property rights,so as to expand channels for peasants' property incomes and increase peasants' incomes.Besides preface and conclusion,this thesis can be divided into four parts:The first part is about the theoretical defining of peasants' housing property rights.There are three parts.Firstly,peasants' housing property rights,born out of national policy,are supposed to go back to its origin when its theoretical definition is made,so as to seek for its fusion point at law.Secondly,whether in theory or in practice,it is necessary and justifiable to advocate peasants' housing property rights.Thirdly,In terms of its right nature,the peasants' housing property rights are plural property rights with identity nature,and also a combination of the right to use the house site and the right to own the house itself.The second part is about the provisions currently in effect and empirical surveys of mortgage about peasants' housing property rights.On the one hand,this thesis has sorted out the nationwide and regional stipulations by comprehensively analyzing mortgage rules in terms of scope of mortgage corpora,qualifications of mortgagors and mortgagees,mortgage registration,valuation of collaterals,realization of hypothec and risk prevention.On the other hand,this thesis has systematically analyzed representative trial practice of the mortgage of peasants' housing property rights.Based on the theoretical and practical analysis,this part has laid a solid foundation for the following part of a general summary of the problems about mortgage rules.The third part,just as mentioned above,is about major problems of the mortgage rules.Based on the theoretical and practical analysis,this thesis is focused on the following topics,including whether the principle of “integration of land and house” can be applied to those in the rural area,and whether the corpora of mortgage should include the right to use the house site;whether mortgagors can mortgage for others' debts,if it is a must to guarantee that mortgagors have a stable living space after the realizing of hypothecation,and if it is reasonable to restrict the mortgagee to banking financial institutions;if mortgagors have to be approved in written forms by the collective economic organization where they belong to when they mortgage their houses and house sites,and how the legal binding effect of mortgage registration is,whether use of the loans should be limited;whether disposal ways of collaterals are reasonable,what kind of restrictions should be put to assignees,and what problems lie in the related supporting systems.The fourth part has offered some suggestions to better the mortgage rules of peasants' housing property rights.This is the focus of this thesis.Specifically speaking,mortgage corpora includes ownership of peasants' houses in the countryside and right to the use of house sites;the mortgage corpora can be mortgaged by mortgagors for themselves or the third parties,mortgagees should be limited to financial institutions and non-commercial banks in principle,and can include the collective economic organization that mortgagors belong to under appropriate conditions;the exercise of hypothec should be allowed by the collective economic organization in written forms,hypothec is established as soon as it has been registered,use of the loans should not be limited except being legal;hypothec can be realized by auction,selling out and mandatory management,assignees should not be refined to members of the collective economic organization,but under the same conditions,the organization and its members are entitled to purchase prior to others;and if the assignee is not one of its members,the leasehold should be used to construct the legal source of land rights for the house.Besides,auxiliary systems can be improved in terms of mechanisms of peasants' housing property rights and valuation of collaterals,the rural credit system and social security system,as well as the planning and management of land use.