| Recently,with the expiration of the right to use construction land in many parts of the country,the central and the local governments have successively set up relevant rules.However,the formal laws have not been promulgated yet,leaving the specific rules still uncertain.Under the background that the principles about the renewal of the right to use construction land has been basically reached a consensus,this paper try to analyze the causes and purpose of the system in the process of its evolution,analyze the nature of the renewal and the value tendency of the residential and non-residential construction land use right,aiming at digging into the legitimacy of construction land use right.In addition,the comparison between the estate right and the construction land use right in similarity——both in substance and in forms——is necessary,on the basis of which we can find out leasehold and fee simple,learning from the system of Estate,as references for the residential and non-residential construction land use right separately.After that,this paper proposes to complete the renewal of the residential and non-residential construction land use right and establish the basic framework of the system of the renewal,in order to providing solutions to the renewal problems in practice and promoting developments of relevant rules in Civil Code.This paper is mainly divided into five parts:The first part puts forward the difficulties in the renewal of the right to use construction land.Firstly,the circumstances in legislation and practice shows that the unclear and inconsistent rules on the renewal left confusion to the judicial and executive departments.Secondly,the spirit of legislation and the degree of urgency and difficulty of the renewal is different with the differentiation of the residential and non-residential construction land use right,which lays a foundation for the following design of rules.The second part introduces and compares the system of the construction land use right and the estate right.First of all,by sorting out the institutional background and historical process of the system of the construction land use right,we discover the causes and purpose of it.Besides,it is pointed out and analyzed that the renewal activity has the nature of private law.According to the value tendency of the residential and non-residential construction land use right,the establishment of the renewal rule should take the renewal rule of the non-residential construction land use right as a principle and take that of the the residential construction land use right as an exception.Secondly,we should make the development and characteristics of system of estate clear,distinguishes different types of estate right,laying a foundation for the comparative analysis of specific types of rights.Finally,we sum up the characteristics of construction land use right and estate right,and analyze their similarity in forms(systems,structure of rights)and in substance(the content and nature of right,purpose and basis of system),also compare their specific types of right to find that the non-residential construction land use right is similar to leasehold,and residential construction land use right is similar to fee simple.The third and fourth part respectively focus on the study of system of leasehold and fee simple so that we can gain the experience and lessons from them.Two parts all contain the history,characteristics and development trends of the system,and separately compare with theresidential and non-residential construction land use right to summarize the similarity of the structure,characteristics,functions and values as the basis for reference.The fifth part is based on the theoretical analysis and practical experience we discuss above and attempts to designing specific rules for the construction land use right.The first step is to choose the system of estate right in common law as pattern.Make it clear that the renewal right is based on compulsory contracting theory,which is private right,legal right and claim right.And analyze its legitimacy in accordance with its causes and purposes.Then,from the historical development of construction land use right,we can figure out the goals and spirits of system of the renewal and rules of the renewal under specific types of rights.At last,we should design the basic framework of the renewal,the principles of specific rules and the specific rules of the renewal of residential and non-residential construction land use right. |
