Study On The Legal Realization Of The Separation Of Three Rights In Homestead

The model of"separation of two rights"has been adopted in China for many years,which has played an important role in promoting fair distribution of homestead and protecting farmers'residential rights.However,on the one hand,with the continuous progress of urbanization,the urban-rural structure has changed,and the current homestead system is faced with problems such as the waste of homestead resources,excessive homestead,and multiple houses in one family.On the other hand,in the current homestead system,the rural homestead right of use is loaded with two value functions of identity and property,so the property value of usufruct can't be fully exerted.The "No.1 Document of the Central Government" proposed in 2018 put forward to carry out the reform of "separation of three rights" of homestead,gradually,on the premise of implementing the ownership of homestead,guaranteeing the qualification right of homestead for farmers,and releasing the rural homestead right of use.This is an important reform system that combines with the needs of rural development in China and is related to the interests of farmers.The fourth plenary session of the 18th CPC central committee proposed that all major reforms should be based on legal evidence.Therefore,how to transform homestead system reform from policy to law and form specific legal norms have become a key research issue in the academic circle.On this basis,this paper explains the jurisprudence basis of the"separation of three rights"in homestead,analyzes the current situation and problems in the pilot areas of the "separation of three rights"in homestead,and puts forward some suggestions on the right structure and legal design of the "three rights"in order to promote the reform of homestead.This paper is divided into four parts.The first part,the jurisprudence explanation of the "separation of three rights" in homestead.According to the theory of separation of powers and functions,no mother right means no other property right.Based on the mother right of ownership,the rural homestead right of use can be generated.Therefore,the ownership of homestead and the rural homestead right of use can be separated,so as to eliminate the restrictions of ownership in terms of dominance and exclusivity and make the best use of everything.However,in the current law,the function of the rural homestead right of use has loaded the social security including the content of the qualification right of the homestead,but there are differences in the attribute of the right and the relief of the right,they need to be separated.In the attribute of the right,the right subject and right characteristic of homestead qualification right and the rural homestead right of use are different.In the aspect of right relief,the right of homestead qualification and the rural homestead right of use are different in tort forms,relief methods and ways of liability.The second part is the pilot analysis of the"separation of three rights"in homestead.This article selects Yiwu in Zhejiang province,Pidu in Sichuan province,Dali in Yunnan province as typical modes of the reform,classified by standard of the ownership of the homestead,qualification right of the homestead and the rural homestead right of use in order to summarize the practice of pilot areas.It is concluded these following experience:Implementing the ownership of homestead can be realized by the farmers'autonomous management,compensable use of homestead and giving village collective the right of retraction.The qualification of homestead can be guaranteed by carrying out the work of confirmation,registration and certification of homestead rights,defining the subject and approbatory subject of qualification right of the homestead,and innovating the way of exercising the qualification right of homestead.The rural homestead right of use can be revitalized by innovating the way to realize this right,allowing the rural homestead right of use to be legal and free circulation in the form of policies and setting up corresponding risk reserves by the government.The third part is the right structure of"separation of three rights" in homestead.As far as the ownership of homestead is concerned,the collective members are the subject in essence,while the collective economic organization is the subject exercising the right on behalf of the owner.This right mainly include the right to identify collective membership,the right to profit from homestead,the right to withdraw and homestead supervision.As for the qualification right of homestead,the nature of the right is the membership right,and the subject of this right is the member of the collective economic organization who is qualified to obtain the right to use the homestead.The rights include the application right of homestead,the usufruct of homestead,and the supervision right of homestead.As for the right to the use of homestead,the nature of this right is the usufruct,and the subject of the right has diversified and is no longer limited to the members of the collective economic organization.The fourth part is the legal structure of the "separation of three rights" in homestead.This part is mainly to make the content from the policy level to the legal provisions,so as to solve the connection between the reform and the current law.In terms of the choice of right designation,ownership of the homestead and the rural homestead right of use,still use the right designation in the current law,on this basis adding qualification right of the homestead.In terms of law amendment,it is suggested to amend and adjust the relevant provisions in the Constitution,Property Law,land Administration Law and Guarantee Law,so as to provide legal basis for the reform of "separation of three rights" in homestead.