Study On Homestead Circulation System From The Perspective Of Separation Of Three Rights

As an important part of rural collective land in China,homestead is related to the most basic right of housing security of farmers.At the beginning of the homestead system set up is the most basic living function,in order to protect farmers current laws and regulations for the regulation of the homestead system mainly concentrated in the constitution "land administration law of the civil code and other normative documents,including the constitution has been clear about the ownership of land property,the civil code has been clear about the right to use house sites is a kind of usufructuary right,"Land management law" the 62th regulation range of the main body of land circulation,but still limit scope of the main body of land circulation within the collective,ignore the social main body the house on the other hand,has given rise to the land circulation of invisible market,such hidden trading without legal protection,easy to produce corresponding legal disputes.Therefore,there is an objective demand to open the transfer of homestead.However,based on the identity attribute of the right to use homestead,directly allowing the transfer of homestead will lead to the erosion of collective land ownership.In view of this,the Opinions on Implementing the Rural Revitalization Strategy issued by the Central Committee in 2018 proposed to explore the separation policy of ownership,qualification right and use right of homestead.The reform aims to guarantee collective ownership of homestead and consolidate the supervision responsibility of collective organizations.We will ensure farmers’ right to qualify for homestead and their property rights in housing,and stabilize farmers’ right to basic housing security.The contradiction between residence security right and property right can be solved by releasing the right to use homestead and house appropriately and digging the right to gain from the right to use homestead.Although the circulation of homestead is liberalized at the policy level,the property value of homestead cannot be effectively brought into play only at the policy level,and the development of relevant laws and regulations should be specifically detailed and implemented.Based on the separation of house-site allocation policy as the breakthrough point,the research division and separation policy "separation",a process,and the legal nature of reform goal,through the analysis of a large number of literature,back separation division under the policy summary of land circulation,combined with the perspective of the current separation division land circulation legislation present situation and the typical experience in pilot areas to explore,This paper summarizes the problems existing in the transfer of homestead in the view of separation of the three rights,and finally puts forward specific suggestions to improve the transfer of homestead in the view of separation of the three rights.The first part summarizes the homestead circulation under the separation of the three rights.Firstly,this paper summarizes the policy of separation of the three rights,including the legal nature of the policy,the promulgation process and the reform objectives,and focuses on clarifying the legal nature of the qualification right of homestead and the right to use homestead under the policy.Secondly,the paper summarizes the homestead circulation under the policy of separation of ownership rights,separation of ownership rights,and analyzes the overview and characteristics of homestead circulation under the policy of separation of ownership rights,paving the way for the following analysis.The second part sorts out and analyzes the legislative status and reform pilot areas of homestead transfer from the perspective of separation of the three rights.First,it sorts out the legislation of homestead transfer under separation of the three rights and analyzes the provisions of current laws and regulations on homestead transfer.Second on the analysis of the four reform pilot area model,including yiwu land exploration mode,the Dali homestead replacement land rent model,tianjin,shenzhen rural homestead for equity,by analyzing the four reform pilot area circulation mode,respectively summarized experience four pilot reform mode,accumulate experience for land circulation system design.The third part puts forward the existing problems of homestead circulation in the view of separation of ownership,ownership and property rights.The perspective of the current separation division land circulation problems mainly includes the conflict of laws and regulations and policy,the land circulation,land circulation program is not specific,narrow body homestead transfer is not standard,the land circulation process of disputes judicial judgment is not unified and accusing the dispute after transfer mechanism is not sound.The fourth part is the suggestion of improving homestead circulation under the vision of separation of the three rights.First,clarify the principles of the reform of homestead transfer system under the separation of the three rights;Secondly,perfect the conflict between policies and laws and regulations,perfect the provisions of homestead transfer in the Civil Code,and clarify the legal nature of the right to use homestead in the Civil Code.Thirdly,the subject range of homestead transfer was moderately broadened,and the subject range of homestead transfer was extended to transfer across collective economic organizations.Then,the transfer mode of homestead is clarified,including sale,lease,mortgage and equity mode.Then standardize the homestead circulation procedure by establishing approval procedure and registration system to standardize the circulation procedure;Finally,a unified judicial judgment standard and a non-litigation dispute resolution mechanism are established to improve the homestead judicial disputes,so as to break the obstacles of homestead transfer disputes to the system reform.