Study On Legal Issues Of "Separation Of Three Rights" In Homestead

Rural homestead system is a land system with Chinese characteristics.In recent years,with the continuous development of society and economy,the traditional homestead system has lost its institutional basis for survival and can not fully meet the needs of reality.In order to better solve the outstanding problems in the field of "agriculture,countryside and farmers" and provide institutional support for the strategy of rural revitalization.The central government timely put forward the "separation of three rights" of homestead,that is,the separation of ownership,qualification and use rights.Although the separation of the three rights of homestead is an important institutional innovation to adjust the relationship between farmers and land in China,it is not the current legal system in China,and there is no basis for promoting the reform of homestead system.Therefore,the primary task at present is to clarify the legal connotation of "separation of three rights" and realize the comprehensive transformation from "policy language" to "legal norms" based on the reform and development practice of homestead in China.In addition to the introduction and conclusion,this paper mainly includes the following four parts.The first part mainly demonstrates the policy background and reform objectives of the "separation of three rights" of rural residential land in China.Under the background of the traditional system of "separation of two rights",the right to use homestead,as a usufructuary right,cannot exert its due power due to its function of social security.The central government has issued a series of targeted policies for the reform of homestead.By sorting out the policies,we can see that the reform of "separation of three rights" in rural homestead has a clear thread of "from scratch to emergence,from point to area",and can also accurately grasp the policy intention of homestead.The "separation of three rights" of homestead is based on practice.As a pioneer area of reform,Zhejiang Yiwu advocates the "Zhejiang Yiwu Model",which provides valuable practical experience for comprehensively promoting the reform of "separation of three rights" of homestead.Under the background of the strategy of rural revitalization,the "separation of three rights" is a reform of "agriculture,countryside and farmers" around agricultural land,namely,Agricultural management mode and the re-development of homestead marketization,the functional reconstruction of rural collective economic organizations and grass-roots autonomous organizations,and the farmers' right to subsistence and development are guaranteed.The second part mainly explores the legal connotation of "separation of three rights" in homestead.At this stage,scholars based on different research paths have different understandings of the "separation of three rights" of homestead,and have adopted different interpretations of the "separation of three rights" of homestead.The main viewpoints are "right to use + right to allocate","right to use + right to operate","right to use + right to land" and "right to use + right to membership".Although the above theoretical viewpoints on the separation of three rights of homestead are reasonable,there is one-sidedness in the understanding of the separation of three rights of homestead,and the internal reform intention of the separation of three rights of homestead has not been properly clarified.In the process of studying the connotation of "separation of three rights " in homestead,we should first clarify the inherent right logic of "separation of three rights " in homestead,and clarify the relationship between different rights.Based on the analysis of the connotation of the "separation of three rights" of homestead,this paper puts forward that the policy expression of the "separation of three rights" of homestead in China should be based on the original meaning of the policy and follow the policy expression of the qualification right of homestead.On this basis,the legal right structure of "separation of three rights" of homestead is expressed as "collective ownership of homestead-qualification right of homestead-use right of homestead".This paper holds that the qualification right of homestead is a kind of qualification right for peasant collective members to acquire homestead,which is based on the right of identity and contains the content of property rights.The right to use homestead is a pure property right,which should be returned to the property of usufructuary right.At the same time,how to liberalize the circulation restriction of homestead is also a question worthy of consideration in the next step.The third part mainly elaborates the main problems existing in the implementation of the policy of "separation of three rights" in residential land.With the deepening of China's comprehensive reform,the current system of the right to use residential land is facing a series of difficulties.In order to emphasize the housing security of the homestead for farmers,the free circulation of the homestead is strictly restricted.However,as a property right,the property attribute of homestead use right can not be highlighted,and there is an irreconcilable contradiction between housing security and property transfer.The current homestead system stipulates that the acquisition of homestead without compensation is contrary to social equity because of the different rights of urban and rural areas in the same place.At present,a large number of rural residential land is idle,which can not be effectively utilized,resulting in inefficient utilization of resources.The collective ownership of rural land makes the subject of collective ownership of rural land empty.The right of housing land qualification is not an existing right type in the current law of our country,and it has no basis in law.There is also a lack of corresponding supporting system provisions,lack of legislative cohesion.The key point of "separation of three rights" of homestead is to liberalize the right to use homestead.The main way to liberalize the right to use homestead is to enrich the transfer mode of homestead to the maximum extent.However,the current legislation on the transfer mode of the right to use homestead is seriously inadequate.The fourth part is the legislative construction of "separation of three rights" in homestead.Under the background of promoting the rule of law in an all-round way,the reform of "separation of three rights" in residential land should be based on the law.With the help of the system design at the legislative level,policy documents can be upgraded to legal norms,providing institutional supply for the implementation of policies.In the future,the compilation of property rights in the Civil Code should adhere to the collective ownership of rural land and stipulate that collective ownership of rural land has always been related.At the same time,the legislative confirmation of the members' rights of residential land should be carried out,and the relevant provisions of the change of the members' rights should be refined.Under the provisions of membership rights,the right to qualify for homestead should be clearly established.Around the power and function attribute of the qualification right of homestead,set up the matching measures of acquisition,loss and withdrawal.Separating the identity and property attributes of the right to use the house land,the right to use the new house land is a pure property right,which has the power of income,and should be stipulated in the usufructuary right of real right compilation.To establish the transfer system of the right to the use of homestead,we should clarify the transfer mode and scope of the right to the use of homestead,improve the mechanism of acquisition and withdrawal of homestead,and improve the unified registration system of homestead.