The Research Of The Homestead Transfer System Under The"Three Rights Division"

Usufruct of homestead is a usufructuary right with distinct characteristic in China.It is the right of peasant to build houses and their ancillary facilities on the peasant's collective owned land,and to possess,use and restrictedly dispose them.For a long time,under the system design of“separation of two rights”,usufruct of homestead has not only adhered to the socialist public ownership system owned by the peasants,but also protected the peasants' rights of residence.However,with the continuous deepening of China's urbanization process,the functional needs of peasants for usufruct of homestead are changing gradually,and the problem of the transfer of usufruct of homestead is becoming increasingly prominent.In view of this,this paper intends to systematically sort out and analyze the effectiveness of the transfer of usufruct of homestead,system obstacle of the transfer of usufruct of homestead,then,we can reconstruct usufruct of homestead in the system of the“Three rights division”and research the new type of issue in the transfer of usufruct of homestead.In addition to the introduction and conclusion,this article mainly includes four parts:The first part mainly analyzes the actual problems in the current transfer of usufruct of homestead.First of all,from the perspective of legal theory,under the Article 52 of the Contract Law,the contract for the transfer of usufruct of homestead should be based on the principle of effectiveness.Secondly,from the perspective of judicial judgment,in order to maintain consistency with relevant policies and ensure the enforceability of the judgment,local courts mostly denied the validity of such contracts on the grounds of safeguarding the peasants' residency rights,which caused differences in theory and practice.Finally,by the analysis of the homestead right system to explore the institutional reasons for the aforementioned differences,we can find out,that the specific homestead use right application subject,administrative approval method,and characteristics of unpaid and long-term create the obstacles of the system for the free transfer of usufruct of homestead.The second part mainly analyzes the legal connotation of“Three rights division”.On theone hand,an irreconcilable contradiction is subsistent between the strong actual demand for the transfer of usufruct of homestead and the institutional structure of the“separation of two rights”in the current usufruct of homestead,which aroused the institutional reform of the“Three rights division”of usufruct of homestead.On the other hand,by the restructure of the institution on the“Three rights division”of usufruct of homestead,the social security function and the commodity exchange function of the current usufruct of homestead will be separated and the function of qualification right and usufruct will be specific,which will greatly improved the transferability of usufruct of homestead.The third part mainly discusses the right structure of the“Three rights division”of the homestead.First,It analyzes the positive significance of the implementation of the ownership of the house site on the free transfer of usufruct of homestead,and constructs two civil rights of the ownership of the house site,namely,the right to dispose and the right to benefit.Secondly,combing the theoretical achievement of current scholars' research on the qualification right of homestead,including "the theory of usufructuary right","the theory of residual right" and "the theory of membership right",this article intends to adopt the "membership theory." Thirdly,constructing the three powers of the homestead qualification rights,which are the home base use allocation request right,the home base fee exemption request right,and the homestead income distribution request right.At the same time,the judgment criteria and rights restrictions of the homestead qualification rights are discussed.Fourth,analyzing the right attribute of the pure usufructuary right of usufruct of homestead under the“Three rights division”.Discussing the necessity and feasibility of appropriately expanding the scope of using of usufruct of homestead,and clarify the value of usufruct of homestead.The fourth part mainly studies the problem of the transfer of usufruct of homestead under the“Three rights division”.First of all,from the perspective of the transferee and the transferor,the reasonable restrictions on the transfer of usufruct of homestead are analyzed.Among them,the scope of the transferee can be restricted to all residents within a certain area,and urban residents who have legally owned a right to use a homestead within a certain area can not obtain usufruct of homestead again through market circulation;but the transferor must ensure that he or she still has a legal resident that meets the local per capita area standard after it has been transferred.Secondly,it analyzes the registration of usufruct of homestead.The first registration of usufruct of homestead should adopt registration confrontation doctrine to ensure the possession of the usufructuary right by the class members.In the process of transfer,the transfer registration of usufruct of homestead should adopt registration validity doctrine to ensure the security of the trading market.Finally,discussing the issue of income distribution in the process of the transfer of usufruct of homestead,and affirming the rationality of the local government's participation in income distribution,but it should be reflected in the form of taxation.The income of the peasant collective is mainly reflected in the fee of the location value of a homestead and the fee of homestead using.In principle,the fee collection should not be involved in the distribution of income from the transfer of usufruct of homestead.