중국의 토지사용권과 「小産權房」의 법적 지위

Abstract

China has adopted public ownership system of socialism of land, so the ownership of the building on land and the ownership of ground are separated. And for individuals, they only have the ownership of the building on land based on the land use rights. Since Reformation and Opening, the socialist market economy has taken shape initially. In the great context of urbanization and the accretion of population, Housing Programs have been a very important social issue in China. Under this background, a kind of unlawful buildings appeared which are built on Collective-owned land to be sold to the non-members in violation of State Housing Development Plan. The builders are developing collective construction land or agricultural land such as curtilage base for housing. This type of housing is called Rural House Built on Collective Land or Small Property Residential Houses. It's unlawful and can not get the certificate(land use card or building droit card), but it has taken 20% market share of housing exchange market of China now. The Chinese Government adopted strict counter-approaches to deal with this problem. The state council has declared "Rural residential land only can distributed among the farmers. Urban residents are from rural to purchase the homestead, farmer house or the house of small property right". The Chinese Government Prohibits sales of the housing of small property right. The court sentenced the contract for the sale of the housing of small property right is avoided. Even, for the housing of small property right, a forcible execution has been carried out on the dismantle in some parts of China. About the housing of small property right, we can find it at Article 151-153 of Real Right Law and Article 43, Article 59-63 of Land Management Law. The basic reason for the phenomenon of the housing of small property right can be due to the imperfect legislation. The settlement for the problem of the housing of small property right is as follows. Firstly, improving legal system to make the collective construction land use right can be transferred(to emend the Land Management Law). Secondly, imposing restrictions on the high-priced residential housing's development by collective land acquisition. Thirdly and lastly, for the house of small property right which has been sold out, the course of the transactions of its land use rights should be admitted and a reasonable taxation policy should be instituted.