Study On The "Three Powers Separation" Of Rural Homesteads Under The Vision Of The Constitution

China's "Constitution" gives people the right to subsistence and property.Rural housing sites are closely related to the survival and property of farmers,and are the basis for the survival and development of farmers.The development of urbanization has further enhanced the property value of rural housing sites,and the property rights of farmers are urgently needed to be protected.The current homestead system implements the separation of ownership and use rights of the house site,attaches too much importance to the residential security function of the homestead,limits the free flow of the right to use the rural homestead,neglects the market value of the right to use the homestead,and gives farmers The rights and interests of the company have caused some damage,so we need to change the current homestead system.In 2018,the "Opinions of the Central Committee of the Communist Party of China and the State Council on Implementing the Rural Revitalization Strategy"(namely,the No.1 Document of the Central Committee in 2018)proposed reforms to explore the ownership,qualification,and use rights of the housing sites.The basic reform direction is Implement the collective ownership of the house site,guarantee the right of farmers in the house site and the property rights of the peasants,and appropriately release the right to use the house site and the peasant house.The proposal of this policy is in line with the spirit of the contemporary constitution,conforms to the trend of the times,and can better protect the legitimate rights and interests of farmers and protect the peasants' right to life and property.Referring to the practice of “three powers splitting” in the contracted land,the “three powers” of the homestead will decompose the original “two powers” into “three powers”,namely the ownership of the homestead,the right to use,and the right to use.On the basis of all,the original right to use the homestead is replaced by the new qualification right,and the new use right is promoted under the market economy conditions.The realization of free circulation,in order to awaken rural sleeping assets,can not only improve the property value of idle homesteads,effectively increase farmers' income,but also better protect farmers' right to survival.This policy is a major innovation to solve the problem of rural real estate sites,and is an inevitable choice for history and reality.At this stage,the legal provisions on housing sites are only scattered in some departmental laws,lacking systemic and normative.The “three-power split” of rural homesteads has also temporarily stayed at the level of policy expression.China has not legally established the “three-power split” system for rural homesteads,and relevant legal research is still in the exploratory stage.Therefore,under the guidance of the spirit of the Constitution,we need to create a system of “three powers separation” of homesteads as soon as possible in light of China's national conditions,so that it can be linked with existing legal theories and legal systems.First of all,this paper explains the necessity and feasibility of the "three powers separation" of the homestead,analyzes the policy connotation of the "three powers separation" of the homestead,and proposes that the right of the separation of the three powers should be the ownership of the homestead.The right to use and the right to use,the new qualification is the right to use the homestead according to the identity of the members of the collective economic organization.The right to use refers to the right to use the homestead obtained by others through legal agreements such as civil agreement;secondly,this paper analyzes The nature of rights and related powers of the three powers,the essence of the right to use is the right to use the house site,the right to use both the identity attribute and the property attribute,and the right to use is the secondary usufructuary right established on the right of qualification;The author draws the corresponding enlightenment from the practice of the separation of the three powers in the rural homestead,and discusses the legislative path of the separation of the three powers in the homestead from the perspective of the constitution,and insists on protecting the legitimate rights and interests of farmers and restricting public power.Taking into account the principles of efficiency and fairness and protecting cultivated land,improving the relevant provisions of the Constitution,amending the subordinate law related to the homestead,and formulating the "Rural House" by the Standing Committee of the National People's Congress Administration Law,"with a rational legal system,the implementation of homestead" three powers split "system,to achieve real change in the rural land system.