A Legal Study Of The System Of Moderately Deactivating The Right To Use Homesteads

Since the establishment of rural homestead use rights in China,it has assumed the function of ensuring social security.For a long time,the conservative use of this right has played a role as a "stabilizer" for maintaining rural order.However,at the current stage,the rural revitalization in full swing,the acceleration of urbanization construction,the flow of population,the expansion of urban land and the phenomenon of "hollowing-out" in rural areas,all have raised new requirements for existing homestead and the reform process of the "separation of three rights"(the separation of the ownership rights,contract rights and management rights).The "separation of three rights" of homestead focuses on further revitalizing homestead use rights,and reusing the homestead with the right of use as a carrier,in order to stimulate the vitality of the land.In the opinion of the author,it is necessary to carry out a deeper study on both the theory and the practice of the use right system,to further innovate the way of reusing homesteads,aiming to better unleash its effect.From the perspective of the right content,the homestead use rights refers to the right of the owner to build a house and its auxiliary facilities on the house site.In the Law on Property Rights,the homestead use rights is a type of usufruct,but it is different from the general usufruct,and only specifically involves the three capabilities of possession,use,and income;From the perspective of real needs,the conservative use of homestead use rights can easily lead to the embarrassment that people with an idle homestead have no intention of reusing,while those who intend to use an idle homestead have no basis to obtain the right;From the perspective of market regulation,both in urban and rural areas,under the condition of limited land resources,it is urgent to optimize the allocation of idle homesteads,make reasonable transfer of the use right,release the vitality of homestead use rights,and activate homesteads utilization value.From the perspective of jurisprudence,this article,first,expounds the legal connotation and legal characteristics of homestead use rights.These characteristics are mainly summarized as follows: the specificity of the subject,the particularity of the object,the property acquisition without payment,and the relative indefiniteness.The relationship between the homestead use rights,the property rights of the usufructand the essential requirements of the property rights is used as the theoretical basis for the system construction,which also serves as foundation for the next few chapters.Secondly,this article analyzes the necessity of releasing the vitality of modern structure of the homestead use rights from four aspects: to conform to the policy orientation,to increase the form of indemnificatory function,to solve the problem of narrow transfer space,and to promote the optimal allocation of resources;in addition,this article analyzes the feasibility from three aspects: to build space for the homestead use rights retention through law,to conform to the practical demands reflected by the migration of rural laborers,and to explore of the reuse model in pilot areas.Thirdly,the articles discusses the main bottlenecks in the process of reusing homestead use rights from the perspective of the legal system,mainly including four aspects: the lack of legal basis for the homestead use rights,the differences in the definition of the transferee of homestead use rights,the insufficiency of powers and functions on homestead use rights,and the incompleteness of the system on the term of homestead use rights.Finally,on the basis of safeguarding the interests of farmers,strengthening the protection of cultivated land and adhering to the unity of efficiency and fairness this article proposes an approach to optimize the release the vitality of homestead use rights,which includes four aspects: to increase relevant legislation,to reasonably define the scope of assignees,to improve the income power of the use right,and to implement the system on the term of homestead use rights,aiming to ensure the perfection and orderly implementation of releasing the vitality of homestead use rights.