Research On The Legal Issues Of The Mortgage Financing Of The Right To Use The Homestead

With the continuous development of new rural construction in China,the rural areas under the dual system of urban and rural areas are not the rural areas in the traditional sense.The rural areas in the traditional sense are completely in the stage of agricultural civilization.The farmers are kidnapped by the land,and the rural productivity is completely dependent on agriculture.However,in the wave of industrial civilization constantly infiltrating into the rural areas,the traditional rural areas are changing to the new rural areas,and the township enterprises are springing up It brings the advanced productivity to the rural economy,but the problems accompanying it also appear.The financing problem of farmers and township enterprises is a big problem.As an important property of farmers,many farmers mortgage the right to use the homestead in order to get financing.Although this approach enables farmers to obtain some financial support,but after all,the homestead has a strong social security function,which is the basis for farmers to settle down,once the homestead is lost Therefore,it is easy to cause a series of social problems.In addition,China’s laws explicitly prohibit the mortgage of the right to the use of homestead,but this provision undoubtedly kills the property attribute of the right to the use of homestead.In view of these practical situations and legal issues,the State Council issued the guiding opinions of the State Council on the pilot project of the operation right of rural contracted land and the mortgage loan of farmers’ housing property right(hereinafter referred to as "the guidance")See),and actively explore.These pilot projects have been completed.These pilot projects have achieved remarkable results,and fed back the existing problems of homestead mortgage financing.From the experience of the pilot areas,it can be concluded that this exploration has won the support of the majority of farmers,which has greatly stimulated the enthusiasm of farmers and township enterprises in loan financing.More and more farmers have participated in this exploration and effectively solved the problem of financing in rural areas,but the existing problems can not be underestimated,including the system level and the operation level.Because the law generally holds a prohibition attitude,how to evade the prohibition provisions of the law and make the exploration legal is a problem concerned by some regions,such as changing the nature of the homestead and so on.Due to the lack of system level guidance,the exploration is still imperfect in the specific operation,such as the procedure of mortgage,the realization of the mortgagee’s rights and so on.In addition,after some farmers’ homesteads are disposed,there are fewer and fewer homesteads,farmers have no place to live,and the continuous occupation of arable land threatens food security and other social problems gradually appear.These problems are not limited to one area,but reflect the common phenomenon in the vast rural areas of our country.In order to make the exploration of the system mature gradually and to really play the role of promoting financing,we should pay close attention to and improve both in the legal level and various supporting measures.For example,the law clearly allows the mortgage financing of the right to use the homestead,legalizes the mortgage financing system of the right to use the homestead,and improves some specific provisions,including the mortgage subject,the mortgage procedure,and the realization of rights,to solve the operational difficulties in practice.Moreover,we should improve the evaluation system,rural financial market,social security system,urban-rural dual system and so on,with the improvement of supporting measures to protect it and prevent the emergence of social problems.Rural homestead,as an important property right,should not be regarded as a "sleeping asset",but only play its social security function.It should follow the political and legal tradition of seeking truth from facts and mass line,actively develop its economic function,take it as an important financing channel,promote the construction of new countryside,and accelerate the urban-rural dual system reform The pace of reform,so as to achieve common prosperity.