Study On The Legal Issues Of Trahsfer Of The Right To Use Homestead

Realizing the free transfer of the right to use homestead between urban and rural areas is an important means to change the dual land pattern between urban and rural areas and realize the optimal allocation of land as a factor of production throughout the country.Although the current Property Law prescribes the right to the use of homestead as usufructuary right,the specific acquisition,use and circulation of the right is only a quasi-usability provision.The detailed content of the right to the use of homestead is invoked into the Land Management Law and other relevant laws.The land management law and the corresponding laws stipulate the system of the right to the use of homestead,which strictly stipulates the transfer of the right under the framework of "one family,one house" and members of collective economic organizations,so that effective transfer is difficult to form and the value function of the right to the use of homestead can not be realized.In the course of economic development,the demand and supply for the right to use the transfer of homestead have indeed arisen,and the invisible transfer has emerged from time to time,with a large number of existing and repeated prohibitions.The transfer needs to recognize the property right of the right to use the homestead,and the prohibition of the transfer is mainly to play a protective role of the homestead for rural residents.Therefore,the choice and balance of the real right and security of the right to the use of homestead has become a hot topic in academic research.Academic circles have been debating this issue endlessly and have different opinions.Although the Central Committee Document No.1 issued the Opinions on Vitalizing the Rural Areas in 2018,which mentioned the application of the idea of "separation of three powers" of agricultural land to the exploration of homestead,hoping to achieve the separation of homestead ownership,qualification and use rights.By separating the right of qualification,we can separate the security and property rights,and ultimately realize the free circulation of the right of use.However,the realization of the theory of "separation of three powers" in the homestead system is still in the stage of theoretical research,and the academic circles hold different opinions,without forming a unified view.Manyproblems existing in the current system of the right to the use of homestead have not only been criticized by the academic circles,but also caused difficulties to the judiciary,and challenged the judicial authority and the unified judicial position.On the basis of the existing research results,combined with the current judicial practice and the relevant situation in the actual circulation of our country,this paper summarizes the current situation and difficulties in the free circulation of residential land,and puts forward solutions on the basis of differentiating different situations,and finally puts forward perfect countermeasures for the construction of relevant laws.The main body of this paper is divided into three parts: the first part defines some basic concepts;the second part focuses on summarizing and analyzing the current situation and dilemma in reality;the third part clarifies the relationship between various contradictions in the transfer of the right to the use of residential land on the basis of the previous article,and further puts forward corresponding countermeasures on how to improve the relevant legal system of our country.The main part of this paper is to summarize the current situation and difficulties and put forward countermeasures,because only on the basis of a clear understanding of the current situation and difficulties of the transfer of the right to use the homestead,can we clarify the relationship between the different contradictions in the transfer of the right to use the homestead,and find a balance point,and ultimately can we put forward reasonable countermeasures to solve these difficulties.Finally,I hope that the author's solutions to these problems can provide help to the relevant legislation of homestead.