Research On The Legal Issues Of The Right Of The Use Of Homestead In Rural Areas Under The Separation Of Three Rights

The current homestead system,featured by "separation of two rights",was created in the era of planned economy,when the state,to adjust to a static agricultural society,restricted or banned the acquisition,transfer and pledge of the rural homestead use right by institutional design.In view of the prevailing historical background,including the implementation of a planned economic system and urban-rural dichotomy,it was reasonable to restrict the circulation of rural homestead.For quite some time,farmers' living needs were thus met,with the rural order maintained.However,along with the development of urbanization,the urban-rural dichotomy gradually gave way to urban-rural integration to such an extent that the problems concerning homestead utilization remained insoluble to various legal instruments,including the laws on rural homestead and the normative documents issued by the State Council and local government after the rural society,which was built on the "separation of three rights",began to become dynamic.The current rural housing and homestead circulation system was already far from being able to meet the requirements of rural economic development.To solve the problems brought about by rural urbanization and homestead capitalization to revitalize idle homestead land for increasing farmers' property income,the Central Government released Document No.1 of 2018 to enable an exploration on “separation of three rights” for ruralhomestead.The policy remains under the exploration.Especially,the academia and practice circle hold differing views on how to understand the essence and content of the "qualification right" and "use right".In the first chapter,by analyzing the problems existing in the transfer of the right to the use of homestead in the pilot and non-pilot areas,it is found that in the areas outside the pilot,the current right to the use of homestead is limited by its original identity,which leads to disputes in practice about the scope of transfer of rights,whether rights can be inherited and whether to distinguish the identity of heirs.And the prohibition of mortgage of rights makes it difficult to mortgage the ownership of the house.In the case that the premises are inseparable,the overload of the current homestead use right protection function directly affects the realization of the property value of house ownership.In the pilot area of "separation of rights" in homestead,through the investigation,it is known that the nature of the right of "qualification right" and "right of use" and the identification of the subject of the right are controversial in each area.In the second chapter,with reference to the relevant research of the "separation of three rights" of homestead,through the theoretical research and practical thinking of law,the second chapter analyzes the nature of rights in the "separation of three rights" of homestead.In the transformation of the policy language of "separation of three rights" into legal norms,the nature of the rights of "three rights" should be accurately understood on the basis of legal logic,combined with the legal system of the right to the use of homestead and the policy purpose contained in "separation of three rights".The goal of the reform of "separation of three rights" of homestead is to maintain collective ownership and strengthen the property attribute of the right to the use of homestead."ownership" and "use right " still correspond to collective ownership and homestead use right.The new "qualification right",the right of claim for the allocation of homestead,the right of self-interest classified as the right of members,is the sub-right of collective membership right,and the law should pay attention to the protection of collective membership right.Therefore,the right structure of real right is still shown as "collective ownership-usufruct".There arestrong identity restrictions on the acquisition and circulation of the right to the use of residential land in the current property Law.Although it is a usufruct,it cannot give full play to the property value of the right.On the basis of defining the "qualification right" under the "separation of three rights" of homestead as the member right,the "use right" should be shaped as the ground right,the restrictions on the identity and area of rights should be relaxed,and the circulation of rights should be open."separation of three rights" is not a complete negation of "separation of two rights",but self-improvement on the basis of continuing "separation of two rights".Compared with the current right to the use of residential land,the right to the use of residential land under the "separation of three rights" has complete usufruct power,including possession,use and income,and the right has a fixed time limit,which can be compared with the 70-year term of the right to the use of state-owned residential construction land.When the term expires,the person with the "qualification right" has the right to apply to the collective for renewal.If the subject who does not have the right of "qualification" occupies or uses the homestead because of obtaining the ownership of the house,the collective can recover the homestead and compensate the house,or draw lessons from the legal lease right to make paid use of the homestead.The third chapter discusses the theory and path of homestead circulation,and tries to put forward the corresponding theoretical scheme for the existing dilemma of homestead.The right to the use of homestead under the "separation of three rights" should adhere to the original acquisition standard of membership,follow the principle of "integration of housing and land",the ownership of homestead and the right to use should be specific to natural persons,and the change mode of real right should adopt the doctrine of registration elements.Within the time limit of the right,the person with the right to use the homestead has the right to transfer the right and put forward his own opinions on the scope of the assignee,income distribution and land use.Of course,as an independent usufruct,the right belongs to the scope of the estate and can be used as the object of the mortgage.This paper puts forward some ideas about the establishment and realization of the mortgage.We can try to change the mortgageobject,compulsory management and other measures to ensure that the mortgagor does not lose land.