Abstract The purpose of this study is to examine and clarify the right structure and form of realization of rural homestead development under the Separation of Three Rights, which has important significance for promoting a new round of deepening the reform of rural homestead system, protecting farmers’ rights and interests, and increasing farmers’ property income. This study adopted an inductive summary and legal analysis method, systematically explained right necessity and connotation and legal attribute of rural homestead development under the Separation of Three Rights, and examined and clarified the right structure and form of realization of rural homestead development. The results show that: (1) Rural homestead development right under the Separation of Three Rights refers to the rural homestead development right beyond the function of residential security when rural homestead is expanded to new industries, new business forms, and the integrated development of primary, secondary, and tertiary industries. Rural homestead development right is a kind of dynamic property right derived from rural homestead ownership and its right to use, stemming from ownership, and its legal attribute is a civil right (private right) in legal term. It is a new usufructuary right; (2) Rural homestead development right subjects should be hybrid, where the collectives enjoy the first level rural homestead development right derived from ownership, farmers enjoy the secondary rural homestead development right derived from the use right, and social subjects enjoy the third level rural homestead development right derived from the management right. The material form of rural homestead and its development potential should be treated as a whole and act as the object of rural homestead development right. The content of rural homestead development right is the summation of its main rights and obligations; (3) The realization of rural homestead development right should define collective economic organizations as ownership subjects and endow rural homestead ownership with complete rights and powers; incorporate their qualification into collective membership rights through legislation, and establish a system for statistical accounting; innovate the business circulation and sharing and co-construction mode of the transfer of rural homestead development right. Distribution of the value-added income in the transfer process of rural homestead development right should take into account the interests of farmers’ collectives, farmers, and social subjects. The research of this paper provides theoretical reference and policy enlightenment for deepening the reform of rural homestead system. Keywords:Separation of Three Rights;rural homestead development right;legal analysis;right structure;civil rights;hybrid agent;realization form
PDF (1079KB)元数据多维度评价相关文章导出EndNote|Ris|Bibtex收藏本文 本文引用格式 鄂施璇, 王兆林. 三权分置下宅基地发展权的权利结构与实现形式[J]. 资源科学, 2021, 43(7): 1419-1427 doi:10.18402/resci.2021.07.11 E Shixuan, WANG Zhaolin. Structure and realization of rural homestead development right under the Separation of Three Rights[J]. RESOURCES SCIENCE, 2021, 43(7): 1419-1427 doi:10.18402/resci.2021.07.11
[ SongZ H. Reconstruction of the rights system on the rural house sites against the background of rural revitalization [J]. Chinese Journal of Law, 2019, 41(3):73-92.] [本文引用: 5]
[ FangJ E. The investigation into function and approach of Tripartite Entitlement System of rural residential land in rural vitalization strategy [J]. China Land Science, 2019, 33(5):23-29.] [本文引用: 1]
[ ZhangK J, FuZ P. Moderate liberalization of the right to use residential land under “Division of Three Rights” [J]. Issues in Agricultural Economy, 2020, (5):28-38.] [本文引用: 2]
[ ZhangY H. Major experiences of agricultural and rural reform over the past 40 Years and its enlightenment to rural revitalization [J]. Reform, 2018, (12):14-26.] [本文引用: 1]
[ DongX H. The circulation of housing land use right in the past 70 years since the founding of new China: Institutional change, current dilemma and reform direction [J]. Chinese Rural Economy, 2019, (6):2-27.] [本文引用: 1]
LuX, PengW, HuangX, et al. Homestead management in China from the “Separation of Two Rights” to the “Separation of Three Rights”: Visualization and analysis of hot topics and trends by mapping knowledge domains of academic papers in China National Knowledge Infrastructure (CNKI) [J]. Land Use Policy, 2020, 97:1-14. [本文引用: 2]
[ JinX M, WangH Y, WangY M, et al. The policy implication of Tripartite Entitlement System of rural residential land and its path to the legal system [J]. China Land Science, 2019, 33(5):9-14.] [本文引用: 1]
[ ZhaoX L, CaoX F. Property right scheme and legal right structure of “Tripartite Entitlement System” of rural residential land [J]. China Land Science, 2020, 34(8):26-32.] [本文引用: 4]
[ YanJ M, DiL S T, XiaF Z. The implementation of the rural revitalization strategy and the deepening of the reform of the “Three Rights Separation” of rural homesteads [J]. Reform, 2019, (1):5-18.] [本文引用: 2]
[ LvP, YuM, YuL Y. Assumption on the construction of new rural housing system adapting to the rural revitalization strategy [J]. Issues in Agricultural Economy, 2020, (1):19-29.] [本文引用: 1]
[ HanL D, WangY X, HanD. The separation of “Three Rights” in rural homestead: Intrinsic requirements, nature and forms [J]. Issues in Agricultural Economy, 2018, (7):36-45.] [本文引用: 2]
[ CaoY F. System dilemma and outlet choice of the right to the use of the rural homestead inheritance [J]. Issues in Agricultural Economy, 2020, (3):49-61.] [本文引用: 1]
[ LiuS L, QinY Y. Risk prevention of homestead circulation under the background of Separation of Three Rights: Analysis from the perspective of real rights [J]. Agricultural Economy, 2020, (4):95-97.] [本文引用: 1]
[ WenL J, ZhangA L, ChenZ, et al. Evaluation of the land development rights and protection of the rural collective construction land assets: Based on a choice experiments of suppliers and demanders in land market [J]. Journal of Agrotechnical Economics, 2019, (4):29-42.] [本文引用: 2]
[ XiangY. Analysis of legislative content of the Separation of the Three Rights of homestead [J]. Issues in Agricultural Economy, 2019, (4):10-17.] [本文引用: 2]
[ LiL, LvX, ZhangQ J. Re-examination on the transfer of rural residential land use right in the context of “Tripartite Entitlement System” from the legal perspective [J]. China Land Science, 2020, 34(3):16-23.] [本文引用: 1]
[ ChenX J, JiangS S. The system of the right to use the land for the house foundation: An analysis of its norm, the challenge in practice and the legislative response [J]. Management World, 2010, (10):1-12.] [本文引用: 1]
WuY Z, MoZ B, PengY, et al. Market-driven land nationalization in China: A new system for the capitalization of rural homesteads [J]. Land Use Policy, 2018, 70:559-569. DOI:10.1016/j.landusepol.2017.10.003URL [本文引用: 1]
[ LiuS Y, XiongX F. Property rights and regulation: Evolution and reform of China’s homestead system [J]. China Economic Studies, 2019, (6):17-27.] [本文引用: 1]
[ YaoS J, LiuG Z. Research on the Development Trend of China’s Land Right Legal System: Taking Land Development Right as An Example[M]. Guangzhou: Sun Yat-sen University Press, 2016.] [本文引用: 3]
CostonisJ. The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks [M]. Cambridge: Harvard Law Review, 1972. [本文引用: 1]
[ HuangZ H, WangH. Land expropriation for a non-public purpose and compensation for its development right [J]. Economic Research Journal, 2002, (5):66-71.]
[ WangH, NieX, ZhangA L. Empirical study on farmland development right pricing: A case study of Wuhan City [J]. China Land Science, 2011, 25(7):66-71.]
[ WangK Q, TangM G, LiuH M. Analysis of the value of land development rights and its influencing factors based on dynamic optimization model with constraints [J]. Finance & Trade Economics, 2015, (10):31-44.] [本文引用: 1]
[ GuoG C, LiX Z, WangX Y. Changes, dilemmas and prospects of the 70-year rural residential land institution in New China: An analytical framework [J]. China Land Science, 2019, 33(12):1-9.] [本文引用: 1]