Research On The Public Laws And Regulations For The Circulation Of Rural Homesteads

The rural land property rights systems of new China had changed from feudal land ownership to farmer land ownership and after then had reformed to socialist public ownership.Adapt to the change of the rural land property right system,the transition of the right of use of rural house land had experienced three periods: relatively loose,strict restrictions and moderately liberalized authorized pilot areas.At present,the legal structrue of the rural house land property right system is as follow:the collective economic organizations of farmers enjoy the ownership of the homestead,and the farmers enjoy the right to use the homestead;Based on the relationship between the ownership of homestead and utilization of homestead,in fact,the collective and the members form a total relationship.Homestead qualification right is the qualification for members of collective economic organizations to distribute homestead,which has double qualities named personal right and property right.At present,farmers only have the right to live on the homestead,but not enjoy the real meaning of property rights and also not enjoy the real meaning of usufructuary right.At present,the legal forms of rural house land transition includes rural house sales,inheritance,recovery of right to use,and administrative collection.The invisible forms of homestead transition includes house sale,house donation,house rental,house replacement and so on.The circulation forms of homestead in 33 counties and cities pilot areas include house sale,mortgage,stock ownership,voluntary withdrawal,land ticket transaction,etc.At present,the main problems in the public law regulation of homestead transfer are as follows: the right of administrative examination and approval infringes on the rights and interests of farmers collective economic organizations and citizens;the right of land planning,village planning and use control infringes on the rights and interests of farmers' collective economic organizations and citizens;there are problems in the transfer of homestead and house,such as no registration confirmation,uncertain registration effect,and disputes on the registration of farmers' qualification right,etc Many problems;the value-added income distribution system of homestead circulation has not yet been constructed.The necessity of public law regulation of rural homestead transfer is based on the following considerations: first,the protection of rural residents' right to live;second,the security of national food;third,the rights and interests of land development should be shared by the whole society;fourth,the security of real estate property rights and market transactions of rural residents.The feasible path of public law regulation of rural homestead transfer is: homestead administrative examination and approval system,land planning system,village planning system,use control system,real estate registration system,land development rights and interests distribution system,etc.The public law regulation of rural homestead should be restricted by the collective economic organization of farmers,the protection of farmers' property rights,the principle of public interest,the principle of legal reservation and the principle of proportion.The public law regulation of rural homestead transfer should be constructed and pefected the following aspects: first,to give the collective economic organization the complete power to the homestead ownership;second,to give the farmers the complete usufruct right to the homestead use right;third,to abolish the administrative examination and approval system of homestead;Fourth,to optimize the planning and management system of homestead;fifth,to relax the use control system of homestead,The sixth is to establish and improve the value-added income distribution system of homestead circulation,and reasonably distribute the rights and interests of land development among the state,the collective and the farmers;the seventh is to establish a coordinated and unified registration system of homestead and house,and clarify the legal effect of real estate registration.