Study On The Segmentation Of The Right To Use Homestead

With the acceleration of urbanization,homestead has become a scarce resource,and its property value and identity value are getting higher and higher,which leads to more disputes about demarcation of the right to use homestead.However,there is no uniform regulation on the division of the right to use homestead in our country.This paper analyses the specific factors affecting the division of the right to use the homestead in judicial practice,the specific circumstances of different judgments in the same case of the court,the division judgment and academic disputes,and the practical dilemma of the division.By discussing the proper reasons for the division,it puts forward specific suggestions for the existing problems in the division,In the conclusion,legislative and judicial suggestions are put forward.There are five chapters:The first chapter is case study.Fifty-five cases in 2018 were classified and sorted out.The contents of the lawsuit were mostly disputes over the ownership of the right to use homestead,and the reasons for the court's non-support were mostly not within the scope of the court's acceptance.From 298 cases in 2015-2018,53 sample cases were screened out.The court's attitude towards the division was mostly that recognition could be divided.And there are different judgments in the same case,such as the acquisition of homestead by one spouse before marriage or after marriage,the inheritance and division,the acquisition by different ways of division,and the existence of different ways of division.Chapter 2 raises questions.Judgment disputes: whether the right to use homestead can be divided,subject qualification,whether it belongs to the scope of court acceptance,whether it can be inherited,how to define “household”,whether the registration effect is absolute,whether there is no building on the homestead can be divided,and whether the right to use the original homestead can be enjoyed after the loss of subject qualification.Academic controversy: whether the subject of the right to use homestead is farmers or individuals,whether the nature of the right is superficies,independent usufructuary rights or quasi-ownership,and whether the duration of the right is fixed,indefinite or permanent.Through the analysis of the above-mentioned disputes,it is concluded that disputes over the right to use residential land belong to the scope of the court's acceptance.When all means are exhausted to determine the right to use residential land,it is rejected on the grounds that it does not belong to the scope of the court's acceptance.The right to use residential land can be divided and inherited.The subject of the right should be “peasant household”,and the right to use residential land should be shared by the members Ownership,therefore,can be divided,and the duration of its rights remains unchanged for a long time,but a reasonable explanation should be given for this.Chapter three is the analysis of dilemma.Legislation: The laws and regulations on the division of the right to the use of homestead in China are not perfect.There are only four relevant articles in the Property Law,but there are no relevant provisions on the specific division.Its supporting system is imperfect,the registration system of homestead is immature and lack of exit mechanism;in practice,homestead is different from the main body and space of aboveground houses.When the subject is different,can the owner of the house land use right confront the owner of the house? When the space is different,the problem of horizontal and vertical segmentation arises.The use right of the house land is determined according to the principle of “land goes with the house” or by the conversion of the divided house area.The expansion of the subject scope of the right to use homestead,the disunity of the subject qualification and the unclear ownership information make the ownership unclear,which brings difficulties to the division.Chapter ?: Legitimacy analysis.The necessity of the separation of the right to the use of homestead is not only the realistic need of today's society,but also the rational choice to conform to the separation of the three powers of homestead.At the same time,from three aspects of theoretical support,traditional ideas and practical operation,segmentation is feasible.There is a tradition of separation in our country.The purpose of separating homestead is to achieve the goal of separating homestead,which is also the most common way of division in practice.Chapter five gives specific suggestions.Combining with the problem of division in judicial practice,the premise of the division is to unify the criteria for the identification of collective membership,weaken the personal attributes of the right to use residential land and clarify its obligee,so as to reduce the restriction of division on subject qualification in judicial practice and the occurrence of different judgments in the same case.At the same time,supporting measures should be taken to determine the registration system for the division of the right to use the homestead,to establish a value evaluation mechanism and to link up the paid withdrawal mechanism,so as to make the homestead transfer and withdrawal within the collective efficiently,and to reduce the division disputes.