A Study On The Issues Of Farmers' Household Qualification Right Of "Separation Of Three Rights In Rural Homestead"

For a long time,the allocation of homestead rights in our country is in the situation of the separation of the two rights-the collective ownership and the right to the use of house sites.The academic theoretical research on the separation of the two rights and the experimental practice of the reform have already achieved rich results.However,with the continuous progress in urban-rural integration,more and more rural people flow into cities,and then a large number of rural homestead becomes vacant,although at the same time the urbanization rate increases,resulting in the waste of land resources.Under the current allocation of the right to use the homestead,right to the use of house sites is prohibited from transferring to the third person besides the members of the collective economic organization,which greatly limits the exertion of the power of the right to use the homestead and blocks the channel of the circulation of the homestead.The purpose of putting forward the separation of three rights in rural homestead" is to reuse the right to the use of house sites,exerting its function as usufruct right,and to promote the increase of farmers'income.In fact,there is no concept of"farmers'household qualification right"in the current law of our country,and the definition of its definition is not clear.In January 2018,the document No.1 of the Central Committee set the tone of"separation of three rights " for the reform of homestead system.It means that the constituents of former homestead rights changed from including collective ownership and right to the use of house sites to including the collective ownership,the farmers' household qualification right and the right to the use of house sites.As the newly added homestead right,the farmers' household qualification right is different from the homestead use right,and how to perfecting the system of farmers' household qualification right becomes a rather important research object.In order to study the legal issues of"the farmers'household qualification right",the new homestead right,the first part of the article reviews and interprets the evolution of the homestead rights allocation and policy changes,through the comprehensive domestic existing literature research and combined with the experimental practice results of the reform of the homestead system.The paper first reviews the historical evolution of the homestead rights allocation with the writing methods including historical research and comparative study.The period is divided into two stages:"two separate rights of homestead"and"three separate rights of homestead".Then analyzing the reasons why the homestead rights allocation changed from "two rights"to"three rights",exploring the changes in the allocation of homestead rights.It is believed that the realistic contradiction of homestead is prominent,which existing laws are difficult to resolve and new policies are needed to guide.Then it interprets the policy of"the separation of three rights,on the homestead,analyzes its connotation,the rationality of the policy design and the policy purpose.Secondly,on the nature of the farmers' household qualification right in the"three Rights Separation of Homestead,different from the right to the use of house sites as right of usufructuary,the farmers' household qualification right cannot be characterized by right of usufructuary or creditor's right of existing laws.The second part is an empirical analysis,an investigation on the practice of the reform of the"three-right Separation"of Homestead.Four typical areas,Yiwu in Zhejiang Province,Pingdu of Qingdao in Shandong Province,Yinqiao of Dali in Yunnan Province,and Lu County in Sichuan Province,are selected.Summarizing the practice of farmers' right to qualification in these areas,the membership of a member is usually identified,expanding the right content of Farmer's right to qualification,etc.Although different regions have their own specific rules,there are a lot to draw lessons from in summing up the results of practice.The third part of the article,the qualitative study of farmers' household qualification right is carried out.Because there was no specific concept of"farmers'household qualification right"before,theoretical the cognitive research on it is insufficient.It mainly forms two kinds of theoretical viewpoints:"personal servitude"and ''the right to use the homestead".The former often regards the farmer's qualification right as the subsidiary qualification brought by the membership of the collective economic organization,or the right of identity attribute which is divided from the right to the use of house sites in the period of separation of the two rights."Farmer's qualification right"is not treated as an independent new right,so the research may not deep enough;The latter thinks that the property right of farmer's qualification right can be more important,while the right to the use of house sites is only the secondary right and only exerts usage and revenue function.The author thinks that the farmers'household qualification right is an independent right,which is characterized as a"member right"and exists as a mixed right,and its subject scope is wider than"personal servitude right".The areas close to the countryside but not within the scope of the collective economic organization of the village can also participate in the utilization of the right of the homestead,and the urban area can be more tightly linked up with the rural area,which is conducive to the integration of urban and rural areas.At the same time,this kind of membership right not only includes the self-beneficial right formed by using the right to use the homestead,but also includes the co-beneficial right,the right to participate in the management in the process of the construction of the new countryside and the new rural community,and the content of the right is more extensiveFinally,as an independent new right,the farmer's qualification right must be constructed when it is characterized as member right,so that it can be applied to the future practice from the policy to the law.This paper focuses on the supplement to the legislation blank and judicial protection,and proposes some concrete thoughts.At the same time,the paper puts forward the criteria of the membership qualification and the content of the farmers' qualification right,so as to perfect the farmers',household qualification right system and achieve the writing purpose of this paper.At the end of the paper,the author puts forward some tentative ideas on the relief channels of the farmers' household qualification right from the perspective of future practice,and gives play to the important role of courts,arbitration institutions and villagers consultation in the settlement of disputing on the farmers' household qualification right.