Analysis Of Legal Implication And Civil Law System Supply Of "Three Separation Of Rights" Of Residential Land

Rural residential bases and farm houses are idle and cannot be transferred to become the biggest problem of the current rural residential base system.In 2015,the country started to open a comprehensive reform of the home base system.After the summary of local pilot experience,the central government formally proposed the reform direction and top-level design of the "three rights of separation" of residential bases in the "No.1 Document" in 2018.However,the subsequent legislation such as the Civil Code shows that there is no unanimous interpretation from all walks of life,especially from the jurisprudence.The "value-institutional" research paradigm of "three rights to residential bases" requires a balance of fairness and efficiency.It is important to take into account the unity of legal thought,legal technology and farmers’ legal feelings.As the legal expression of the collective ownership system of residential bases,collective ownership of residential bases is the basis for improving the system of residential rights.The collective ownership of residential bases not only has the dual attributes of public and private,but also has two faces of absolute and relative ownership.In order to renew the system of home base ownership,we should insist on the "members’ collective" as the subject of home base ownership and distinguish it from the rural collective economic organizations and villagers’ committees.The Civil Code positions rural collective economic organizations as special legal persons.Although rural collective economic organizations are still controversial as one of the types of legal persons,their governance structure can still be constructed according to the general principles of legal persons.The ownership of residential bases belongs to the category of ownership under civil law,and should have complete rights.As a newly proposed right to residential bases under the policy of "separation of three rights",the cognition of its basic connotation will affect the final allocation of rights under the policy of "separation of three rights" of residential bases.The qualification right of residential base should be positioned as the qualification of members of rural collective organizations to obtain the right to use residential base by applying for allocation,which should be included in the category of collective membership right and belongs to the proper content of collective membership right.In addition,the system of qualification right of residential bases should be created in terms of the identification of subject qualification and the realization of the qualification right of "one house for one family and one house for one family".The "three rights of residential bases" is one of the models for the transfer of the right to use residential bases.It is the most important thing to express in the legislation of "three rights separation" of residential bases,which is to appropriately release the right to use residential bases while conforming to the configuration of three rights.The"legal lease right" has limitations,and the right chain extension of "secondary residential land use right" has the necessity of making the best use of things and the feasibility of not violating the principle of "one right for one thing".It is feasible.Under the framework of "separation of three rights" of residential bases,there are mainly leasing as a form of credit transfer and derivation of secondary residential bases as a form of property transfer.The lease of residential land means that after a farmer legally obtains the right to use the residential land and builds a house,he/she transfers the house and the right to use the residential land to the lessee for a certain number of years according to the principle of "housing and land as one".The establishment of secondary residential land use right is a specific application of the theory of derivation in the field of residential land use right transfer,and the third right thus enjoyed by other subjects should be named as "secondary residential land use right",adopt the registration effective doctrine,and can be further transferred,and the restrictions on its use should be further liberalized,but a corresponding supervision mechanism should be established.