| The Property Law of People's Republic of China?hereinafter referred to as the“property law”?has fuzzy provisions in the first paragraph of Article 149 that after be expiration of the residential construction land use rights and the automatic renewal of the land use rights,but doesn't spicily how to auto magical renewal.Especially the residential construction land use rights expiration limit the flow of behavior in Wenzhou,requiring a one-third of the total amount of land to pay the land transfer fee to complete the normal flow of transactions,Therefore,the author of the above questions on the legal analysis and put forward their own views and suggestions.In addition to the introduction and conclusion,this paper is divided into four parts.The first part discusses the problems in the first paragraph of Article 149.This paper takes the transfer limitation of residential construction land use rights expiration in Wenzhou as a case.to introduce the legal and focusing disputes on the renewal of the residential construction land use right.The key point of the problem lies in the legislations blank in the first paragraph of article 149th of“property law”,which are that should there are compensation for the renewal of land use right after expiration.How to determine the standard rules for the renewal fee,and how to define the scope of the automatic renewal of land use right.How to solve this kind of problems and how to perfect the existing legislation is confronting our Civil Law.The second part,the author analyzes the residential construction land use right system,and then discusses the basic characteristics of residential construction land use right,and the relationship between residential construction land use right and housing ownership.First of all,to summarize of the housing,which is discussed in this article,is commercial housing with land use right by means of transfer.Secondly,this paper introduces the relationship between housing and land.Housing and land cannot be separated,as a natural phenomenon;this is admitted in any country.In those countries,housing and land regarded as independent,indivisible and there is only one ownership,in our country,it is impossible to achieve the integration of housing and land ownership,therefore,measures must be taken to maintain the real estate property consistent principle,namely the agreement of land use rights and housing ownership.Finally,the part discusses the relationship between housing constructions land use right and housing ownership.The term of housing constructions land use right and the time limit of the house ownership construction the contradiction of the renewal of land use right,which is a two aspects of the problem,not one size fits all.We should not only pay attention to land other than housing,nor abandon the interests of the state,but should fully consider how to protect the interests of the state in the absence of infringement of private property.the construction between residential construction land use right and housing ownership is due to the special situation of our country.Housing construction land use rights with a time limits and house ownership without time limits lead to the main contradiction of renewal of construction land use rights.The ownership of house,acquired on the basis of legal resources,is legal private property,which cannot be deprived of its permanent right of possession,even if the housing and land use rights expired.Therefore,how to deal with the relationship starts with improving,refining the relevant operating conditions and specific requirements of“property law”Article 149.The third part makes a comparative analysis of the land use system in Germany.Britain and Japan and Taiwan,Hong Kong.This paper probes into the relationship between the land use system and the ground objects in Germany,Britain and Japan.The implementation of the national land system in Germany,Britain and Japan is different from that in China.Germany emphasizes the existence of things to confirm the existence of land use.In Britain,the king own the land,the land use right is establishment of the lease relationship.Hong Kong,deeply affected by Britain,keep its land use right and renewal right on the basis of annual rent.Japan deploys dual policies,ground objects and land are separate and independent.Japan calls the land use right as surface right,pay attention to“use”,make the best use of attention.China's Taiwan region,due to historical reasons,take the separation principle,which is the mainland china.The fourth part puts forward some suggestions on the design of the renewal system of the residential construction land use in china.First of all,this paper introduces the nature of residential construction land use rights expiration auto magical renewal,automatic renewal function and our country‘s transitional policy on auto magical renewal,the provident of these theories help to resolve the practical problems,such as residential construction land use rights expire renewal is paid or not,the automatic renewal conditions.Secondly,it denies the theories of unpaid renewal proposed by some scholars and demonstrates the theory of pa id renewal.Finally,from the perspective of legal interest balance,combined with the exciting legal status of china,the author thinks that the conditions such as duration,scope and cost,should be improved.First,we should define the scope of automatic renewal;second,the period of automatic renewal should be regulated;the third,the standards of the automatic renewal cost and its policy makers should be improved.In the comparison of land use system,the author holds that it is not suitable for the collection of transfer as the standard in our mainland China.We can also choose to carry out the housing holding tax to solve problems of land use rights and housing ownership.Obviously,housing problems are complex and significant.The Chinese government should,therefore,should put on the agenda as soon as possible to solve the problems related to automatic renewal of our residential construction land use and implementing rules.Only in this way,the buyers can be relieved and the social order can be stabilized. |
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