A Summary of the Research on Rural Homestead in China

With the rapid development of China's economy and the continuous acceleration of urbanization, urban construction land is constantly expanding. With the increasing shortage of urban construction land resources, the expansion of urban scale brings the rural collective land in the suburbs into the urban land. Since the reform and opening up in 1978, farmers' income has been increasing and their living standards have been significantly improved. coupled with the large rural population base and the continuous increase of new population, the improvement of housing conditions has become the primary demand of farmers. The scale of the village is constantly expanding, and the resources of collective construction land in the village are increasingly tense. In the early 1980s, farmers occupied their own cultivated land to build houses, which wasted a lot of cultivated land. In order to ensure the country's food security, the CPC Central Committee and the State Council kept the red line of 1.8 billion mu of arable land and used land economically and rationally. in 2004, the State Council proposed to encourage the consolidation of rural construction land. the increase of urban construction land should be linked to the reduction of rural construction land, that is, we often refer to the "link between increase and decrease".

In 2005, the CPC Central Committee and the State Council proposed to promote the construction of a new socialist countryside, strengthen the planning and management of homestead, and vigorously save land for village construction. Under the background that the local government's revenue is mainly supported by land sales, homestead has become the next revenue target of the government. Driven by economic interests and political achievements, local governments actively promote the policy of land consolidation and farmers' housing, and there is a phenomenon that farmers are "allocated housing" in various places. There are also many contradictions in the process of expropriating farmers' homestead, and the situation of petition, self-immolation and conflicts between the government and the people caused by the forced demolition of farmers' houses is becoming more and more serious, which has also attracted the attention of the CPC Central Committee, the State Council and the broad masses of the people. The problem of homestead has once again become the focus of attention with the promotion of the "link between the increase and decrease of new rural construction and construction land".

I. concepts related to homestead

After the founding of the people's Republic of China, China's land system has undergone a change from private ownership to public ownership, and homestead has also experienced an evolution process from private ownership to public ownership. As the land and homestead policies and regulations have been adjusted many times after the founding of the people's Republic of China, it is necessary to clarify the relevant concepts.

(1) collective land. Collective land refers to the land owned by rural collective organizations. According to its nature, the land in our country can be divided into two categories: one is state-owned land, the other is collective-owned land. Article 10 of the 2004 Constitution stipulates: "the land in cities is owned by the state, and the land in rural areas and urban suburbs is owned by collectives except those that are owned by the state by law, and homestead and private land and mountains are also owned by collectives." Collective land shall be shared by all members of the collective organization.

(2) (2) collective construction land. Collective construction land refers to the land used by township (town) village collective economic organizations and rural individuals to invest or raise funds for various non-agricultural construction. Mainly include: township (town) village public welfare land and public facilities land, as well as rural residential land.

(3) Homestead. Homestead can be divided into broad sense and narrow sense. In a broad sense, homestead refers to all the land used to build houses for habitation and use, including the land owned by the state and the land owned by collectives. In a narrow sense, homestead only refers to the residential land of rural residents on collectively owned land. It is the residential land and ancillary land used by rural collective economic organizations to meet the living needs of members of the collective economic organization and to engage in family sideline production. At present, domestic scholars generally use the narrow concept of homestead in the research of homestead. According to the narrow definition, homestead includes three types: the land that has built a house, the land that has been built but has no superstructure, and the planning land that is ready to build a house.

(4) (4) the right to use homestead. The right to the use of rural homestead refers to the right enjoyed by members of rural collective economic organizations to build houses and ancillary facilities on farmers' collectively owned homestead and directly dominate and exclude them.

(5) (5) the transfer of the right to the use of residential land. The circulation of the right to the use of rural homestead refers to the behavior that the farmers who have the effective right to the use of rural homestead and the ownership of houses on the rural homestead transfer both the right to use and the ownership of houses to others in accordance with the law. The circulation of homestead includes mortgage, lease, sale, replacement, inheritance, shareholding and other forms.

(6) (6) the increase and decrease of urban and rural construction land is linked. The link between the increase and decrease of urban and rural construction land means that according to the overall land use planning, a number of rural construction land plots to be reclaimed into cultivated land and plots to be used for urban construction are combined to form a new demolition project area. Through measures such as construction, demolition and land consolidation and reclamation, on the basis of ensuring the balance of all kinds of land area in the project area, the effective area of cultivated land can be increased and the quality of cultivated land can be improved. The goal of saving and intensive use of construction land and a more reasonable layout of urban and rural land. In other words, the rural construction land is directly linked to the urban construction land. If the rural consolidation and reclamation construction land increases the cultivated land, the cities and towns can increase the corresponding area of construction land.

II. Domestic Research on Homestead

Domestic research on homestead is mainly concentrated in the fields of economy, legal system and management. The research in the economic field mainly focuses on the property right relationship, clarifies the property right ownership of the rural homestead, and promotes the homestead to enter the primary land market for circulation. In the legal field, it mainly involves the acquisition, protection and circulation of the right to the use of homestead, as well as regarding homestead as a kind of usufruct to study how to protect the rights and interests of farmers under the framework of existing laws and regulations. The research in the field of management mainly focuses on the problems existing in the homestead system and how to improve the homestead system, such as homestead registration system, homestead acquisition system, homestead circulation system and so on.

(1) from an economic perspective

The main research works of economists on rural land system are as follows: Wen Tiejun believes that the more tense the relationship between human and land is, the more difficult it is to fully privatize land in his book "three Rural issues and Century reflection". If the rural population overloaded on land cannot be reduced, this kind of incomplete property right is a feasible and reasonable institutional arrangement. The incomplete property rights also provide institutional conditions for governments at all levels to infringe upon the interests of farmers in the name of national rights. In his book property Rights and Politics: village experience from the Perspective of the relationship between State, Collective and Peasants, Liu Jinhai pointed out that with the process of rural urbanization and the expansion of cities, there is a process of "re-collectivization" of collective assets in rural society. This process of "re-collectivization" expands collective autonomy and forms a new perspective-omnipotent collective power in rural society. In the book "Research on the property right system of Rural Land in China", Ye Jianping and others believe that the property right system of rural residential land in China is the sum total of the relationship between farmers' ownership of residential land and the right to the use of land, under the collective ownership of rural land, a series of rights with farmers' right to the use of residential land as the core, and its essence is the property right of rural land with the right to the use of land as the main content.

(2) from the perspective of legal system

At present, the research on homestead is mostly concentrated in the field of legal system, so there are many research achievements in this field. The research angle mainly focuses on the following aspects:

1. Research on the ownership of homestead. On the reform of rural homestead system, theorists probably have three different views. First, to maintain and improve the existing collective ownership of rural homestead. Li Changping believes that the current rural land system does not affect the circulation of land use rights. He Xuefeng believes that the collective ownership of the land, the ownership belongs to the collective, and the right of use belongs to the farmers, which is a very clear property right structure in line with the current reality of China's rural areas. The current arrangement of farmland system is quite reasonable, which is the biggest secret of China's rapid economic growth and the basic conditions for China's future development, which we should cherish. The second is to advocate the ownership of the state and the permanent tenancy of farmers. Zhou Tianyong believes that the rural land system should implement "state ownership + 999 use period," abolish collective land ownership in rural areas, state-owned all land, and subject homestead and cultivated land to the last round of contracting. The four wastelands, deserts, mountains, woodlands, and fishing ponds contracted by farmers shall be subject to the contracted management, and will be inhabited, used and managed by farmers within the term of the next 999 years. The third is to advocate that the land should be owned by farmers. Chen Zhiwu believes that the rural collective land system is a product of history, and as long as the land right is still publicly owned, the interests of farmers will continue to be infringed upon. Yu Jianrong believes that it is collective land ownership that restricts the exercise of ownership and advocates the return of land rights to farmers. Cai Jiming believes that private ownership of agricultural land can improve the long-term stability of agricultural land property rights, mortgage can provide funds for production, improve the mobility of property rights, promote the effective allocation of labor force and provide social security for farmers. Ma Lixin pointed out that the transformation of the rural homestead system from private ownership to collective ownership is not in line with the wishes of farmers, and the collective ownership of rural homestead is discrimination against farmers. the homestead system is the remnant of the people's commune system and the planned economic system. He proposed that the collective ownership of rural homestead should be changed to peasant ownership.

2. Research on the change of homestead system. With regard to the stage division of the change of homestead system, different scholars divide the time from different angles. Jiang Ailin and Chen Haiqiu divided the legislation of the homestead system into five stages: the legislation in the period of private ownership of homestead (1949mur1956); the legislation in the period of people's commune (1956mur1978); the legislation in the initial stage of reform and opening up (1978Muth1985); the stage of unified management of urban and rural land (1986 / 1996); the period of transition of urban and rural land management system (1996 / 2006). Ding Guanliang divided the process of the change of homestead system in China into four stages: from 1949 to 1962, rural homestead farmers were privately owned, and farmers enjoyed homestead ownership; from 1962 to 1981, homestead was collectively owned by production teams and farmers enjoyed the right to use homestead; from 1982 to 1996, homestead was collectively owned by farmers, and rural and urban residents enjoyed the right to use homestead. From 1997 to now, the homestead is collectively owned by farmers, and farmers have the right to use it. Xu Zhenyuan and Kong Xiangzhi divided it into three stages: the stage of standardizing and managing land by administrative means from 1978 to 1985, the stage of unified management of urban and rural areas from 1986 to 1996, and the transition stage of urban and rural land management system from 1997 to now. Han Lida and Li Manning divided the homestead system into two stages: from 1949 to 1958, farmers enjoyed the ownership of homestead, and the homestead was allowed to circulate freely; from 1959 to now, homestead changed from private ownership to collective ownership, and farmers enjoyed the right to use it free of charge. the free circulation of homestead is limited.

3. Legal research on the right to the use of homestead. In his book "property Law Research (revised Edition)", Wang Liming specifically defines the concept of the right to the use of homestead in China, and makes an in-depth analysis and discussion on the characteristics, content, acquisition, circulation and elimination of homestead from the perspective of property law. In his book Research on the legal system of Rural Land, Chen Xiaojun studies the reality of rural land by means of empirical investigation, and puts forward the problems existing in the current system of the right to the use of rural construction land in our country. and made a theoretical analysis and evaluation of the relevant systems and laws. In his book "Research on the basic issues of the Rule of Law in China's Rural areas", Ding Guanliang pointed out that there is no special legislation on rural homestead in China, and rural homestead has been regulated and adjusted by laws and policies for a long time. Guo Mingrui expressed his views on the concept and scope of the right to the use of homestead in the legislation of property law, the number of homestead occupied by farmers, and the transfer of the right to the use of homestead, and suggested special legislation on the right to the use of homestead. Liu Jun pointed out that the value concept of a single system could not meet the needs of society, and the disunity of legislative basis, ideas and standards led to contradictions and conflicts in current provisions. He put forward several core issues in the legal system of the right to the use of residential land: whether the security attribute leads to the non-transferability of the right; whether the right acquired without compensation can be transferred in a paid manner; whether the right to the use of residential land can be sold to urban residents. Whether there will be a large number of homeless farmers if the circulation is allowed. Han Yubin believes that the property law design of the right to the use of rural residential land should show the pursuit of the legal value of justice and efficiency. According to the requirements of legal value, the right to the use of rural residential land should be real right, and can be disposed of relatively freely. Han Shiyuan believes that the property law does not solve the problem that the right to the use of rural residential land can only be transferred within collective economic organizations. He advocates the establishment of land lease rights for homestead use rights in order to solve the problem of instability of rural land use rights after the large-scale circulation of rural homestead. Jiang Ailin and Chen Haiqiu think that China's current homestead laws and regulations are incomplete, the legislative content is rough, the laws and regulations conflict with each other, and the level of laws and regulations is low, and put forward that special legislation should be set up for homestead.

4. Research on the original acquisition system of the right to the use of residential land. After reviewing the current initial acquisition system of the right to the use of residential land, Gao Shengping and Liu Shouying pointed out that the current system of the right to the use of residential land in China puts too much emphasis on the role of administrative examination and approval in the initial acquisition of the right to the use of residential land. It is proposed that the acquisition system of the right to the use of residential land should be reconstructed according to the principle of obtaining his real right, and the subject and procedure of obtaining the right to the use of residential land should be clearly defined. Chen Xiaofu pointed out that the acquisition of the right to the use of rural residential land is relatively chaotic, and the definition of the concept of household in the current legislation is relatively vague. He believes that the law should set a certain time limit between the acquisition of the right to the use of homestead and the construction of houses. Cai Lidong believes that the rural collective as the main body of land ownership, the villagers as a member of the collective and the collective to obtain the right to the use of residential land in the form of contract, using this way to replace the current administrative examination and approval. Shen Xinxin believes that collective land has both public welfare and private interests, and the government's management of the right to the use of residential land should be transferred from the administrative license of the current administrative department to the confirmation according to its functions and powers and supplemented by the application.