Policy Changes And Legal Construction Of The Circulation Of Homestead Use Rights In My Country

The reform of the homestead system is an important window for my country to deepen the reform and the transformation of the rule of law,and the transfer of the right to use the homestead is its key issue.Relevant laws and policies strictly limit the transfer of the right to use homesteads,and the social reality of a large number of idle homesteads and invisible transfers has affected the effectiveness of the law and weakened the legitimacy of the judiciary.The pilot reform initiated from this has contributed local experience to relevant legal reforms,and the path of dividing the three rights of farmland into law from policy also provides a reference for the construction of relevant rules for homesteads.In the context of the conflict between law and reality,in the game between private law and public law,how to understand and construct the legal system and rules for the transfer of homestead use rights has become a theoretical proposition and a practical topic with Chinese characteristics.The policy and legal objectives of the transfer of the right to use the homestead determine the content of its rights rules.In the early days of the founding of the People’s Republic of China,the main goal of allocating farmland rights was to ignore the construction of homestead rights rules;in order to solve the legal dilemma of turning the public into private and realize the ideal of public ownership,the separation structure of the two rights of homesteads was formed,and farmers’ use rights were established in the form of policies.It was confirmed by the 1975 Constitution.In the1980 s and 1990 s,under the constraints of protecting cultivated land,the transfer of homestead use rights was strictly controlled with the goal of developing agricultural production and supporting urban real estate development.Turning to the new rural construction period,in order to protect the rights and interests of farmers,the right to use homestead is included in the usufructuary system;in rural revitalization,the fundamental purpose of the transfer of the right to use homestead is to develop equitably and to modernize governance.Facing the practice of reform,the transfer of the right to use homestead h as the dilemma of insufficient system supply,poor legal rationale,and dislocati on of public and private laws.Yiwu City,Zhejiang Province explored the sepa ration of three rights and transferred the right of use as a complete usufructuar y right;Meitan County,Guizhou changed the right to use the homestead to a collectively-owned commercial construction land,and transferred the nature of t he right;At the same time,the right to use homestead and the right to use co nstruction land was established,and the rights were separated and transferred.Based on the reform experience of various regions,the following feasible polic y frameworks are summarized:（1）Establish collective participation in transactio ns,income distribution mechanisms and preferential repurchase rights to strengt hen collective ownership;（2）Break the collective geographic boundaries of thetransfer of use rights,and establish county and farmers Dual boundaries of id entity;（3）Set the conditions of the transfer party as those who have settled inthe city and those with registered permanent residence in other regions,and r efine the standard of legal and stable residence;（4）Allow to explore a varietyof transfer methods;（5）The transfer procedure is determined with "peasant-co llective-township" as the core.The relevant systems and rules should be constructed from four aspects: legal objectives,legislative principles,empowerment of private law and regulation of public law.Under the guidance of the general goal of industrialization（modernization）,rural revitalization,rural governance,and revitalization of homesteads are taken as the highest legislative goals,main legislative goals,and direct legislative goals,respectively.It is not appropriate to take marketization as a legislative goal.Secondly,on the basis of following the principle of unifying efficiency and fairness,the principle of legal reservation and the principle of diversified design,respecting the wishes of farmers and protecting farmers’ rights and interests are the direct principles,and the protection of cultivated land and one house for one household are the indirect principles.Thirdly,the separation of three rights should be implemented in private law,and the identity of farmers in qualification rights should be clarified.Both the transferor and the transferee should enjoy the qualification rights.property rights.Finally,the jurisprudence of state control rights and the reality of unfinished urbanization make it legitimate and necessary for public law to regulate the circulation of homestead use rights.At this stage,administrative regulations or departmental rules should be formulated to set up three categories of clauses: qualification conditions,circulation procedures,and rights protection and relief.Specifically,the transfer party is limited to farmers who have settled in the city as the main body,and the transferee is limited to farmers without homesteads within the county.The transfer procedure should be “farmers’ application-collective consent-township approval”,rights to women and other vulnerable groups Protect and provide access to relief.