On the Reconstruction of property Rights of Farmers' Homestead in China

By the end of 2013, the area of rural homestead in China was 170 million mu, accounting for about 54% of the rural collective construction land. This is not only an important part of rural collective assets, but also an important source of farmers' property rights.

I. the formation and characteristics of the homestead system

Rural homestead system is a unique land system in our country. During a period of time after the founding of New China, homestead and farm houses were owned by individual farmers. Even though the Model articles of Association of Advanced Agricultural producers' Cooperatives issued in 1956 require members to turn private land into collective ownership by cooperatives, it also makes it clear that "members' original graveyards and housing foundations do not have to join the co-operative." The draft Amendment to the regulations on the work of the Rural people's Commune in 1962 made it clear for the first time that the land within the production team, including the homestead, was owned by the production team. In 1963, the CPC Central Committee issued the Circular on some Supplementary regulations on members' Homestead in various places, and forwarded the issue of Homestead for members arranged by the Agriculture and Forestry Office of the State Council, reiterating that "the homestead of members, including the blank homestead with and without buildings, is collectively owned by the production team", and makes new regulations: the homestead will still be used by every household for a long time and remain unchanged for a long time. The production team should protect the right of use of the members. They should not accept it as soon as they want, but adjust it if they want. The attachments on the homestead, such as houses, trees, factory sheds, pigsty and toilets, will always be owned by members, who have the right to buy, sell and rent houses; no land price will be charged for newly-built houses, regardless of whether they are arable or not.

In the more than 50 years since 1963, although the framework of the rural residential land system of "collective ownership and peasant household use" has remained basically stable, in-depth analysis shows that a series of adjustments have taken place in the rural residential land use right system.

First, the qualifications for obtaining the right to the use of homestead are gradually tightened. In a long period of time, the state does not prohibit urban residents from obtaining the right to use rural residential land conditionally. The regulations on the Management of Land for Housing Construction in villages and towns promulgated in 1982 stipulates that "retired, retired workers and soldiers who return to settle in their hometown, and overseas Chinese who return to settle in their hometown" can obtain homestead. Article 41 of the Land Management Law, promulgated in 1986, stipulates that urban non-agricultural hukou residents may use collectively owned land to build housing, additional conditions are subject to the approval of the people's government at the county level, the area of land shall not exceed the standards prescribed by provinces, autonomous regions and cities, and compensation fees and resettlement subsidies shall be paid with reference to the national standards for construction and requisition of land. The Circular on strengthening the Management of Rural Homestead approved by the State Council and the State Land Administration issued in 1990 proposed for the first time that homestead should not be approved for non-agricultural hukou residents. The Land Management Law revised in 1998 changed the application subject of homestead from "rural residents" to "rural villagers", and deleted the stipulation that urban non-agricultural residents can use collectively owned land to build housing. The Circular issued in 1999 by the General Office of the State Council on strengthening the management of land transfer and strictly prohibiting land speculation clearly stated for the first time that "farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land for housing construction." the relevant departments shall not issue land use certificates and real estate certificates for houses built or purchased illegally. The decision of the State Council on deepening Reform and strict Land Management issued in 2004 expanded the main scope of prohibition from "urban residents" to "urban residents" and clearly proposed that "urban residents are prohibited from purchasing homestead in rural areas".

Second, the way of obtaining the right to the use of homestead has experienced a tortuous change from free to paid and then to free. During the period of the people's commune, the newly built houses of the members were provided with land by the collective free of charge. In 1988, Dezhou, Shandong Province took the lead in the trial of paid use of rural homestead. By 1992, 28 provinces, autonomous regions and cities, more than 1200 counties, 6000 townships and about 130000 administrative villages had implemented paid use of homestead. In 1993, the State Council held a national teleconference on reducing farmers' burden and announced the abolition of paid fees for the use of rural homestead and overoccupation of rural homestead. Since then, although the free use system has been implemented at the national level, paid use is still being implemented in some areas.

Third, the power of the right to the use of residential land is gradually narrowing. The notice of the CPC Central Committee on some supplementary regulations on members' homestead issued in 1963 stipulates that members have the right to buy and sell or rent houses, and the right to use the homestead is transferred to the new owner after the house is sold. However, the Emergency Circular of the State Council on stopping Rural Housing Construction from encroaching on cultivated Land issued in 1981 emphasizes that members have only the right to use the homestead allocated to members, and are not allowed to rent, buy, sell or transfer without authorization. Article 37 of the guarantee Law, promulgated in 1995, stipulates that the right to the use of homestead shall not be mortgaged. Article 152 of the property Law promulgated in 2007 stipulates that the right to the use of residential land has the right of possession and the right to use; article 184 stipulates that the right to the use of residential land shall not be mortgaged. Compared with the complete usufruct, it has less power of income; compared with the right of land contractual management, it not only has less power of income, but also has less power of disposition in many forms.

After more than 50 years of development and evolution, the main characteristics of the current rural homestead system can be summarized as follows: "Collective ownership, use by members; one household, one house, limited area; free application, long-term possession; separation of premises, differential empowerment". "Collective ownership and use by members" means that the ownership of homestead is owned by farmers collectively, and only members of collective economic organizations are qualified to use it. "one household, one house, limited area" means that members of collective economic organizations take families as units, each family can use a piece of homestead, and the area and volume ratio of homestead cannot exceed the regulations of various localities. "Free application and long-term possession" means that members of a collective economic organization can apply for the use of the land owned by the collective for a family free of charge, and occupy and use the homestead indefinitely, and the area is related to the number of families at the time of application, but can not be implemented to the head of the family, it belongs to the common right of use of the family. "the separation of premises and the empowerment of differences" means that houses and homesteads implement two sets of property rights systems, and farmers have complete rights of possession, use, income and disposal of houses, and only have the right of possession, use and limited disposition of homesteads (for example, farmers who can be transferred to farmers who meet the conditions of new applications for homestead in this collective economic organization, but shall not apply for the use of homestead after transfer). This set of institutional arrangements ensures the residency rights of farmers, and both rich and poor have a piece of homestead for self-built housing. However, there are also many problems, such as free application and possession of homestead, leading to the widespread occurrence of "common land tragedies" such as multiple houses and building new houses without demolishing the old; with the increase of rural population outflow, the phenomenon of vacant rural houses is intensified; farmers' housing property rights and homestead use rights are inadequate, and farmers' property rights are restricted. There are a large number of extra-legal phenomena, such as rural houses and even homestead mortgages, out-of-scope transfer, "joint construction" of urban and rural residents, and the construction of "houses with small property rights" for foreign sales, which pose a severe challenge to the binding force of the law.

The "decision" of the third Plenary session of the 18th CPC Central Committee clearly requires that "protect the usufruct of farmers' homestead, reform and improve the rural homestead system, select a number of pilot projects, and cautiously and steadily promote the mortgage, guarantee and transfer of farmers' housing property rights." In fact, this puts forward two interrelated and different reform tasks: one is the reform of homestead system, the core of which is to protect farmers' usufruct of homestead, and the focus is whether it has been given the power of "possession and use". Further give it the power of "income" and give it the power of "punishment" to a limited extent Second, the housing property rights system reform, the core is to expand the transaction radius, from the collective economic organizations to a wider range of circulation, the focus is whether to include urban residents in the scope of the assignee. As it is difficult to separate the premises, the completion of these two reform tasks must be based on the reconstruction of homestead property rights.

II. Implementation of collective ownership

The ownership of homestead is owned by farmers collectively, which has been clear at the legal and policy level since 1962. However, under the institutional arrangement that members of collective economic organizations have long-term possession and use rights free of charge, the power of collective ownership has been very weak. In the face of tort acts such as "one family with multiple houses", over-standard occupation and spontaneous transfer, collective economic organizations as landowners are often at a loss. Under the background of expanding the power of farmers' housing property rights and homestead use rights, accelerating the change of rural population structure, and the rising probability of housing transfer transactions, it is necessary to clarify and implement the power of homestead ownership.