Research On Legal Issues Of Homestead Qualification Right Under The Background Of "Separation Of Three Rights"

As a unique rural land system in China,homestead system has played a key role in ensuring farmers’ basic living needs,stimulating rural production and maintaining rural social stability in a specific period.However,with the rapid development of urbanization and industrialization in China,the contradiction between farmers’ security and asset attributes has become more and more prominent.The homestead system has encountered obstacles in the actual operation,which are mainly manifested as the idle homestead,"multiple houses for one family" and the invisible circulation of the right to use the homestead.The new policy term "the right to the qualification of homestead" especially needs to be transformed into a standardized legal system through juristic researches.The purpose of this paper is to summarize the historical development of the selfgoverning system and to summarize the practical experience in the pilot area of "separation of three rights" to complete the legal system construction of the right of the qualification of the farmer.This paper consists of six chapters,divided into three parts,focusing on the construction of the right to acquire the right to farmers.The first part of this thesis is the general explanation of homestead system.This part systematically sorts out the historical changes of the homestead system since the founding of the People’s Republic of China,deeply analyzes the practical difficulties faced by the homestead system,and clarifies the background,policy implications and legal expression of the "separation of three rights" of the homestead.Meanwhile,the homestead system is also faced with the dilemma of low utilization efficiency,repeated emergence of the invisible transfer of the right to use and insufficient supply of legal system.The second part of this thesis is the dispute and definition of the nature of the right to the qualification of homestead.The nature and connotation of the right to the qualification of homestead are unclear.In nature,there is a dispute between "member right theory" and "usufructuary right theory",while in connotation,it is unclear both in theory and practice.Most of the researches on the right to qualification of homestead stay in the nature discussion,and there is little mention of its content.However,in practice,the policy texts issued by various areas do not clearly define the connotation of the right to qualification of homestead.On the basis of summing up the practical experience in the pilot area of "separation of three rights" and systematically analyzing the right to qualification of homestead in jurisprudence,this part demonstrates the necessity and feasibility of the right to qualification of homestead as the collective membership right of farmers.The shaping of the membership right of the qualification right can be linked with the existing collective membership right system.The third part of this thesis is the legal system construction of the right to qualification of homestead.This part has completed the relatively perfect and systematic legal system construction of the right to qualification of homestead,systematically demonstrated and explained the concept,content and exercise as well as the acquisition,loss and guarantee of it.The concept of the right to qualification of homestead is defined as a general term for the rights of homestead distribution claim,collective homestead income distribution claim,homestead management participation right,homestead distribution supervision right,etc.,which are obtained by farmers in certain rural communities after obtaining membership according to laws or articles of association,which are consistent with their membership.Its contents mainly include:(1)Subject to compliance with the laws,regulations and statutes,the qualified person may require the collective entity to allocate and own and use a specific area of the home free of charge.(2)The right holder has the right to apply for distribution of the income obtained from the operation of the homestead managed by the collective economic organization or the village committee.(3)The right holder has the right to participate in the planning of homestead by collective economic organizations or villagers’ committees and to use homestead for business purposes.(4)The right holder has the right to supervise the allocation of homestead by collective economic organizations or villagers’ committees.The "household" and individual farmers should be regarded as the right subjects of the right to the qualification of homestead to adapt to the traditional social structure and the protection of individual rights in rural areas of China.The criteria for determining membership should be made clear by national laws,and local governments should be given specific criteria for determining membership according to practical conditions.Meanwhile,rural self-governing organizations should be given some rights to determine membership through the Organic Law of Villagers’ Committees and the Organic Law of Rural Collective Economy.In terms of rights protection,we should establish the registration system of the right to the qualification of homestead,and build a rights relief mechanism with self-help,administrative relief and judicial relief as the main line.