宅基地使用权流转制度:考量与创新

Abstract

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).