On The Right To Use Homestead From The Perspective Of Separation Of Three Rights Research On Mortgage System

In 2018,the CPC Central Committee and the State Council jointly issued the opinions of the CPC Central Committee and the State Council on implementing the strategy of rural revitalization,in which the separation of ownership,use right and qualification right of homestead was proposed for the first time.Among them,moderately activating the use right of homestead and allowing the use right of homestead to be mortgaged is an important reform that the CPC Central Committee and the State Council are most concerned about at present Leather measures.The right to use the homestead itself is a usufruct with strong Chinese characteristics,which has long assumed the function of rural social security,making the majority of rural villagers live in their houses.However,with the acceleration of the integration of urban and rural areas,the loss of population in rural areas is serious,which makes many rural areas in China become hollow villages.In order to solve the problem of a large number of idle houses and homesteads caused by the loss of population,the state allows the idle houses in rural areas to set up mortgage loans.In order to solve the problem of a large number of idle houses and homesteads caused by population loss,the state allows idle houses in rural areas to set up mortgage loans.In order to make the transfer of the ownership of the rural houses have legal basis,improving the rules of the right to use the rural homestead has become the most critical part of the current reform process.Article 184 of the property law and Article 37 of the guarantee law clearly stipulate that the right to use the homestead shall not be mortgaged.In order to maintain the social stability of the rural areas and prevent the displacement of farmers,the state has always implemented a strict management system for the homestead,which has not fully realized the property attribute of the right to use the homestead.In December 2015,the Standing Committee of the 12 th National People's Congress decided to authorize the State Council to temporarily adjust and implement the provisions on the prohibition of mortgage of the right to the use of homestead in the property law and the security law in 59 pilot areas,and the new land management law also has no provisions on the mortgage of the right to the use of homestead.Combined with the current situation of hollow village in rural areas,it is feasible to set up mortgage for the right to use homestead,which also lays a theoretical foundation for the establishment of mortgage system for the right to use homestead.At the same time,the Party Central Committee and the State Council allow rural villagers to set mortgage on the right to the use of rural houses and homestead based on the principle of integration of housing and land,and lay a practical foundation for the establishment of the right to the use of homestead system by summarizing the practical experience of some pilot areas.Secondly,on the premise of sufficient theoretical basis and practical experience,a set of operational system came into being.As a member of the village collective,the mortgagor should provide proof that he has another stable residence when setting the mortgage.The scope of the mortgagee should be limited to financial institutions,and the object of the mortgage should follow the principle of real estate integration,which stipulates that the right to use is the same as the rural house Set a mortgage.In view of some realization difficulties in real life,the government's compulsory management of homestead and the implementation of different transaction rules for the types of transferees are effective solutions.However,the process of reform is slow.In order to make the reform of homestead use right system effective,a complete set of supporting measures of homestead use right mortgage system is indispensable.On the basis of the new Land Administration Law,which insists on one house per family,villagers who have settled down in cities in rural areas are encouraged to voluntarily withdraw from their homestead with compensation according to law.Under the general background of actively establishing a unified market for construction land between urban and rural areas,it is an important measure to perfect the reform of housing land system to establish the rules of paid use and withdrawal of housing land use right,to establish the registration mechanism,to confirm the ownership of housing land,to establish a standardized market for the transfer and transaction of housing land use right,and to improve the security mechanism of farmers' basic livelihood.