| The Property Law provisions housing land use right cannot be mortgaged.But after the third plenary session of the 17 th and 18 th,the country reforms and improves the system of land to guarantee peasant household land usufructuary right.The country suspends the implementation of relevant laws and opens some areas as the farmers housing property rights mortgage pilots.The Interim Measures for Farmers Housing Property Rights Mortgage Pilot provisions that the housing and the right of using the rural homestead should be mortgaged and disposed together.However,the assignee of the rural house is restricted to the relevant laws and regulations and the provisions of the state council.The Property Law and the Land Management Law do not specify the main qualifications of the rural house buyers,but the house are not allowed to transfer and rent for non-agricultural use.Since 1999,the general office of the state council has issued a number of notices to clarify that farmers' homes should not be sold to urban residents,which mean that urban residents are forbidden to purchase homesteads in the countryside.Nevertheless,the discussion on this issue in the theoretical circle has been constant.In practice,the phenomenon of urban residents buy farmers houses are more and more,and the disputes have been constant,which means the prohibition is not well enforced.It is complex to maximize interests of farmers and both do well in collectives and assignees.Therefore,the system design of the right to use the house and homestead should be treated with caution,which means to safeguard the interests of the peasants as the starting point and the foothold,and strictly implement the basic state policy of protecting farmland.There is no legal obstacle to the current housing transfer,and the restriction of the right to use the house has become a real constraint on the circulation of the farm house.Therefore,the path of the realization of the property right of farmers is in the system design for the transfer of the right of using the homestead,which must take into account the interests of the peasants,the assignee and the collective.For the farmer,there is no difference whether the transfer objects are farmers or urban people,because farmers lose the house both.The larger the market is,the higher the value is.So the free flow of houses is in line with the needs of farmers.For the assignee,it is good to him that the right of using the homestead is transferred along with the house,which means he has the complete right.For the collective,homestead ownership remains unchanged,and the subject status of public ownership is maintained through the introduction of paid and time limited using mechanism.The country can establish collective storage system for housing homestead and set up redemption period.And farmers can purchase agricultural housing to solve their housing problems.In addition to the introduction and conclusion,this paper is divided into two parts:The first part introduces the scope of rural housing transfer.There is internal circulation and free flow in the theory of housing circulation,which reflects different legal value judgment.Many pilot areas extend the transfer scope to rural residents.There are also pilot schemes to allow urban residents to buy houses,by paying collective construction land use fees or changed to state-owned land.The law originates from practice and guides the development of practice.Therefore,it provides a direct reference and for the formulation of the law of free circulation of farm buildings.For many years,courts have ruled that the purchase of rural houses by urban residents is invalid,which is a legal error.It is a civil law question to identify the effectiveness of the rural building business contract,which should be based on the provisions of article 52 explanation of Contract Law and article 4 of Interpretation of Contract Law(1),rather than the policy provisions of the state,which violates the rules that the law should protect the property rights,and is difficult to operate in practice.Therefore,we should do some change to make the polities more realistic.Besides,the free circulation of rural houses is the embodiment of the principle of autonomy,the consideration of the value of the law,and in line with the interests of the peasants.It has a historical reference and is also possible under the reform of the household registration system.To sum up,the house should flow freely.The second part introduces the question of whether the right of using the homestead follows the housing transfer.There are two theoretical perspectives: separatism and unity.The separatism maintains that there is no need to transfer right of using the homestead,just establishing constructive lease or legal lease to solve the legal obstacles.However,it is advocated by unity that the right of using the homestead should be transferred and introduce the paid and time-limited using system.Circulation of the right of using the homestead followed house is the requirement of the housing registration system in China.The farmers can use land free and no time limited because of the nature of public ownership in China.However,in the process of external circulation,we should introduce paid and time-limited using system to security the public ownership system and the collective interests.According that,the circulation system of the right to use the homestead : The internal circulation in the peasants should be still free and unlimited.Whether the members of the collective organization have the purchasing power and purchase demand or not,give them the preemptive right under the same conditions.The transfer of rural houses to other people should be paid for and used for a period of time.The residential use remains the same after the transfer.Strictly adhere to the One house,One house,the farmer should not apply for the homestead right again,even paid cannot be allowed.Urban residents shall have the right to use the property and the right of using the homestead,and the registration procedures shall be carried out to demonstrate and protect their rights. |
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