Research On The Legal Issues Of The Recovery Of The Right To The Use Of Homesteads

The recovery of the right to use the homestead is the proper function of the ownership of the rural homestead,and it is a“legal means”to further organize the homestead and promote the rational use of the homestead.As one of the reasons for the elimination of the right to use homesteads,together with the voluntary withdrawal mechanism of homesteads,it has made due contributions to solving the problems of homestead idleness and inefficiency.The homestead land use right recovery system originated in a specific socio-economic era,and has undergone many changes in many rural land system reforms;but it has never been abandoned by lawmakers.The recently amended Land Management Law(2019)Also once again recognized the necessity of the existence of this legal rule.However,it is regrettable that due to the vague characterization of “recovery behavior” and serious flaws in legislative norms,the implementation of the right to recover the right to use homesteads in practice is difficult to“have a law to follow”,and homestead use frequently occurs The phenomenon of“tooling”of the power recovery system has led to illegal violations of farmers ’legitimate rights and interests.The main idea of this article is based on a comprehensive review of homestead land use rights recovery norms,and by examining the external appearance of homestead land use rights recovery in practice is difficult to analyze the system’s legislative flaws.After preliminary analysis,the crux of the problem of the recovery of the right to use the homestead lies in three aspects: "unclear legal relationship for recovery","unreasonable legal reason for recovery" and "lack of legal procedures for recovery".The third item belongs to the issue of procedure specification level.Specifically,in terms of recovering the legal relationship,due to the lack of legislation,the nature of the recovery of the right to use the homestead is highly controversial.There are two theories of "administrative behavior" and "contract cancellation",and two types have been formed.A completely different rule system for the recovery of the right to use homesteads has caused confusion in the legal relationship of recovery;the reason for the recovery is mainly about the lack of legality and rationality of the reason for recovery,which is manifested in the fact that the provisions on the cause of recovery are too principled,and At the local legislative level,the reasons for recovery are lack of legitimacy,weak operability,and lack of application foundation;in the recovery process,the core issue is the legislative gap in the recovery process.The current Land Management Law and some local legislations are in addition to the approval of the recovery of the right to use the homestead In addition to the brief provisions of the procedure,there is no other regulatory document to explain and explain the process specification for the recovery of the right to use the homestead,showing an embarrassing situation of “unable to rely on”.In view of this,this article adheres to the "problem-oriented" basic principle,and has responded to the above-mentioned problems one after another.Among them,the second and third parts are aimed at the problem of entity specification level,and the fourth part is intended to solve the problems that occur at the procedure specification level.Specifically,in view of the chaotic legal relationship of recovery,based on the right base and legal characteristics of the recovery of the right to use the homestead,this article constructs the“recovery act” as the “exercise of the right to form the property” and identifies the right to use the homestead The right of repossession belongs to the owner of the homestead,and the township people ’s government,which is responsible for the examination and approval,is the subject of supervision of “recovery actions” and urges the “right of repossession” to be exercised legally.Regarding the reasons for recovery,it clarified the basic principles that should be adhered to by legislation on recovery reasons,and successively elaborated on the level,type and connotation of the legislation for recovery reasons in order to provide a feasible reference for the determination and application of "recovery reasons" in accordance with.Finally,in terms of the recovery procedure,based on the analysis of the value of the recovery legal process,this article proposes that it should be in accordance with "make a recovery decision-apply for recovery approval-review the recovery decision-announce the recovery decision-cancel the right to use the registered homestead" The standardized process of implementing the point of view of the recovery of the right to use the homestead,and briefly discussed the basic rights enjoyed by the person being recovered.In short,through the analysis and improvement of the legal relationship,the reason for recovery and the recovery procedure of the homestead use right recovery,the homestead use right recovery specification can be made more reasonable,applicable and operable to ensure the use of homesteads The right to withdraw plays its due functions and values in social practice.