학술논문
택지사용권거래제도 연구 - 교량과 혁신
The Circulation System of the Right to Use the Homestead - Consideration and Innovation
The Circulation System of the Right to Use the Homestead - Consideration and Innovation
Document Type
Article
Text
Text
Author
Source
중국법연구, 11/30/2017, Vol. 32, p. 213-239
Subject
Language
Korean
ISSN
1738-7051
Abstract
多年来，宅基地使用权流转制度俨然成为学界和实务界研究的难点和 热点. 宅基地使用权被2007年出台的《物权法》规定为用益物权，具体的 规定体现在《土地管理法》之中，为了实现“居者有其屋、住房有保障”的 目标，于是，对农村宅基地的流转进行了严格规范或限制. 我国各种政策 的出台也是在禁止自由流转或限制自由流转的视角下展开的. 城乡一体化的深入，城镇化建设的推进，市场经济急速发展，交易对 象越来越多，众多的农民脱离家乡，走入城市，并在城市中工作、生活 等. 愈来愈多的农民把交易对象指向了其在农村的宅基地及其在基地上的 房屋，鉴于现行各种制度和规定，致使引发诸多难题. 在城乡一体化的大 背景下，对宅基地的由来和现行困境进行了论述(主要包括法律的冲突或 矛盾、公法因素浓厚，私法因素淡化、附随困境即引发的房屋合同效 力)，在此前提下进行了理论性考量(对学界存在三种观点进行了归结，即 肯定说、禁止说、限制说，并对本文的观点进行了论证和强化)与必要性 考量(主要从四方面考量：即宅基地流转是资源配置市场化的必然选择、 宅基地流转是顺应物权法发展趋势的必然选择、宅基地流转契合了保护 农民利益之需要、宅基地流转有助于提升农村土地集约利用)并提出了制 度创新与思考，主要体现在原则制定(主要包括保障农民居住权原则，突 出宅基地的财产属性、私人利益与公共利益相平衡的原则、保护耕地与 集约利用土地的原则)和具体内容建构(主要包括建立宅基地退出机制、实 现“权利”并行之模式、建立宅基地使用权自由流转的法律和法规、建立城 乡一体的保障性住房机制).
Over the years, the circulation system of the right to use homestead has become a difficult and hot point in theory and practice. The right to use homestead was defined as usufructuary right by Property Law introduced in 2007, and the specific provisions were made explicit in Land Management Law. To achieve the goal of “home ownership” and “housing security”, the circulation system of the right to use homestead was strictly regulated and restricted. The introduction of various policies in China is also made in the context of prohibiting or limiting free circulation. With the deepening urban-rural integration, the progress of urbanization, the rapid development of market economy and the growing number of trading objects, a growing number of farmers leave their hometowns to work and live in cities. In this situation, many of them choose to trade their homestead or the houses built on it. Running counter to the existing systems and provisions, many difficulties are caused consequently. Against such a background, the origin and present predicaments of homestead are discussed (mainly including legal conflicts or contradictions, strong public law, weak private law, and the validity of the housing contract caused by accompanying dilemma). In this context, the theoretical considerations (three views prevalent in academia including affirmation, prohibition and restriction are summarized; and the argument in this article was substantiated and reinforced) and necessity consideration (mainly from four aspects: firstly, the transfer of homestead is the inevitable choice of market-oriented resource allocation； secondly，the circulation of homestead is an inevitable choice for following the trend of property law；thirdly, the circulation of homestead fits the needs of protecting farmers' interests；fourthly, homestead circulation helps to improve intensive utilization of rural land) were carried out and system innovation was made, mainly embodied in principle formulation (including the principles of guaranteeing the residence rights of farmers, emphasizing the property attribute of homestead, balancing the private interests and the public interests, protecting the cultivated land and the use of the land) and specific content construction (mainly includes the establishment of the homestead withdrawal mechanism, the realization of the “rights” parallel mode, the establishment of laws and regulations for the free circulation of homestead, and the establishment of a government-subsidized housing mechanism suitable for both towns and countryside).
Over the years, the circulation system of the right to use homestead has become a difficult and hot point in theory and practice. The right to use homestead was defined as usufructuary right by Property Law introduced in 2007, and the specific provisions were made explicit in Land Management Law. To achieve the goal of “home ownership” and “housing security”, the circulation system of the right to use homestead was strictly regulated and restricted. The introduction of various policies in China is also made in the context of prohibiting or limiting free circulation. With the deepening urban-rural integration, the progress of urbanization, the rapid development of market economy and the growing number of trading objects, a growing number of farmers leave their hometowns to work and live in cities. In this situation, many of them choose to trade their homestead or the houses built on it. Running counter to the existing systems and provisions, many difficulties are caused consequently. Against such a background, the origin and present predicaments of homestead are discussed (mainly including legal conflicts or contradictions, strong public law, weak private law, and the validity of the housing contract caused by accompanying dilemma). In this context, the theoretical considerations (three views prevalent in academia including affirmation, prohibition and restriction are summarized; and the argument in this article was substantiated and reinforced) and necessity consideration (mainly from four aspects: firstly, the transfer of homestead is the inevitable choice of market-oriented resource allocation； secondly，the circulation of homestead is an inevitable choice for following the trend of property law；thirdly, the circulation of homestead fits the needs of protecting farmers' interests；fourthly, homestead circulation helps to improve intensive utilization of rural land) were carried out and system innovation was made, mainly embodied in principle formulation (including the principles of guaranteeing the residence rights of farmers, emphasizing the property attribute of homestead, balancing the private interests and the public interests, protecting the cultivated land and the use of the land) and specific content construction (mainly includes the establishment of the homestead withdrawal mechanism, the realization of the “rights” parallel mode, the establishment of laws and regulations for the free circulation of homestead, and the establishment of a government-subsidized housing mechanism suitable for both towns and countryside).