居有其屋——中国住房权问题的历史考察

【作者】 张群；

【导师】 夏勇；

【作者基本信息】 中国社会科学院研究生院 ， 法理学， 2008， 博士

【摘要】 本文从人权的视角,考察中国古代、近代和当代的住房保障制度的历史变迁,总结中国住房权的历史发展与住房权保障的历史经验。第一章导论,首先分析作为人权的住房权即适足住房权概念的形成、内容、标准、国家义务及制度保障,认为人权是住房权发展的最高阶段,合理的住房制度和政策是保障住房权的关键。随后考察西方住房权的历史发展和最新经验,作为对中国历史考察的一个比较性参照,最后介绍本文的观点和视角。第二章考察古代中国住房权的发展,认为国家的住宅保障行为还属于恩赐性质,个人没有主张的权利,对于住房本身也没有品质上的要求,住房需要还没有成为法律权利。但一些具体的制度及其变迁如宅地制度、灾民住宅保障制度、旗人住房福利制度对当前的住房权保障有一定的借鉴价值。第三章考察近代中国住房权的发展,认为在民国时期,个人已经取得了对住房需要的法律上的权利,可以通过诉讼、结社、言论等方式主张,国家也承认并在不同层次上履行自己的保障义务,这表明住房权已经产生。这个时段思想界提出的安居乐业、“人人有屋住”、“一人一床”、保障身体健康和生活愉快等口号,第一次出现大规模的住房权运动(减租运动)、住房权结社(房客联合会),第一次由非政府组织推行的房屋义卖计划取得成功,工人阶级也第一次提出住房权要求等,表明住房权取得了重大进步。第四章考察当代中国住房权的发展,认为在当代中国,住房权得到了更为充分的保护,并且已经进入了作为人权的住房权的新的发展时期。但在这个阶段,曾经对个人所有房屋所有权保护不力,新民主主义房屋政策、私房改造等在不同程度上损害了私人的住宅财产权,影响了住房权的发展。改革开放以来的住宅商品化改革,承认个人住宅所有权,进一步扩大住房权的保障对象,并提出了“人人享有适当住房权”的口号,这标志着国家开始履行对住房权的人权保障义务。第五章依据上述历史考察,按照住房人权的标准,评析和展望中国住房权保障制度和政策的得失与完善。更多还原

【Abstract】 The thesis comprehensively studied on the housing right from a historical standpoint. The author advocated taking the“right to adequate housing”that had been generally acknowledged in the world as the basic criterion. Our government should enact the housing policy and the housing law on basis of China’s national fundamental conditions so as to practically guarantee and continually improve the citizen’s housing right.The first chapter, the author researched the origin, the formulation and the development of the housing right from the world historical standpoint, emphatically analyzed the formulation, the connotation and the significance of the conception of housing right.The second chapter, with the main clue of legislation and policy change, the author studied the development processes and the experiences of the housing guarantee system which was in the period of ancient China and modern China. According to above study, the author got a conclusion that ancient china had got a preliminary cognition on the housing right. Although its system was simple, there were also some creativities, and the housing right system of ancient China played a positive role in the old and modern time. During the period of the Republic of China, the government established housing guarantee system by imitating the western countries. Although this system was not put into practice because of the shortcomings of itself and the social turbulence, the attention to the effects of market mechanism and the government’s responsibility is worth affirming, and some concrete system designs are worth learning too. In order to comprehensively understand the housing law system of the republic of china, the author also researched carefully on Taiwan’s housing laws and policies that were passed after 1949.The third chapter was mainly about the development of the housing right after the liberation. The new democracy housing policy during the initial period of liberation brought about many negative phenomena, such as the infringement of the private rights. The subsequent socialist transformation of private houses was more seriously invading the citizen’s housing property right, and the left over problems, such as the“economical rented house”problem, still affected social stability and harmonious in 1980s. The welfare house system that was imitated from the Soviet Union was not suitable for the China’s national fundamental conditions, and made citizens excessively dependent on the system. The welfare house system resulted in unfair and corruptions, which seriously affected the improvement of China’s housing right. Since the Openness and Reform, the marketization of housing estates had been put into practice, which brought vitality to the development of the housing right. However, the unhealthy market mechanism and the neglect of housing right guarantee of the medium or low-income stratum brought about many other social problems again, such as the polarization of the rich and the poor.The fourth chapter analyzed the concept and the connotation of the housing right on the basis of the above study. The author concluded the basic principle and system of the housing right guarantee, and focused on discussing the advantages and disadvantages of the two longstanding controversial systems, namely, the public housing system and the rent control policy.更多还原