【作者】 程其明；

【导师】 倪星；

【作者基本信息】 武汉大学 ， 公共管理学行政管理， 2010， 博士

【摘要】 近年来,在全国几乎所有大中型城市及其近郊,均出现以旧城改造、城中村改造、新农村建设、设施农业、城乡统筹等名义违规开发建设、非法入市交易的小产权房。从媒体报道、学界探讨及有关机构调查数据看,小产权房数量大、分布广、问题多、争议大、影响深,成为政府、媒体、学者、开发商及广大民众普遍关注的住房问题之一。小产权房的形成、发展壮大,既有城乡土地人为分割成二个体系的不合理的土地管理体制、分税制导致的财权与事权不匹配的财税管理体制、农民土地宪政权利的虚置等体制性根源,也有住房市场化改革中城市高企的房价、住房保障的缺失、城市扩张带来的土地级差收益显化及其分配的不合理、法不责众以及法难责众的社会心理和社会经验等经济、社会根源,还有地方政府监管缺位、权力寻租等管制性因素。此外,客观上小产权房买卖方市场已经形成并颇具规模,主观上不同利益主体急欲利用小产权房进行套利、逐利、分利,也是小产权房迅速蔓延并逐步坐大坐强的一个重要因素。小产权房合法性问题、房屋产权法律属性问题等,关涉到现行法律法规的适足性问题。小产权房现实的热销与政策的限制,使其成为当前不容忽视的关乎国计民生的一个重大问题,其对民生利益的危害已经引起了管理层高度重视,合理与否,取决于各方利益博弈的考量。小产权房面临着开发风险、交易风险、产权风险以及安全风险,无法上市交易,无法办理抵押,无法继承,无法对抗政府的征地和拆迁。小产权房还折射出农村集体建设用地的使用权能的缺失、户籍制度的非理性以及公民能否自由迁徙并自由选择居所等深层次问题。针对不断蔓延并违规入市流转的小产权房,中央及有关部门先后颁发了一系列法规和政策文件,既从宏观上调控小产权房开发,更从微观上规制小产权房建设或销售,同时要求各地坚决制止、依法严肃查处。小产权房问题比较突出的城市,地方政府及其有关部门,也在设法进行规制,先后分别发布小产权房开发禁令、购买风险提示或禁止性规制政策。总体上看,小产权房现行宏观调控政策和微观规制政策,都没有取得预期效果；出于耕地保护、民生改善和农民权益保障等对小产权房进行社会性规制的政策供给明显不足；规制政策的执行,经常遭遇“上有政策下有对策”之困境。当然,一些地方政府对小产权房规制似有松动迹象,探索小产权房处置的路径有借鉴意义。目前,学术界有关小产权房规制政策的研究,或是基于土地政策的视角,或是基于住房政策的视角。有研究主张承认小产权房开发及其入市交易的合法性,有研究主张限制或取缔,有研究折中主张合法化,但不一定商品化,多数研究主张应区分不同类型的小产权房作不同处理。有关小产权房合法化的政策主张,或是出于解决城市居民住房难问题,或是考量资源可利用性问题,或是审视法律法规适足性问题,而有关禁建禁售小产权房的政策主张,或是出于耕地保护与粮食安全,或是着眼农民长远生计,或是重申既有法律法规权威性,都不足以根治错综复杂的小产权房问题。鉴于小产权房问题已经远远超越了单一的法律、政治或管制层面而衍生为综合性社会问题,妥善解决之,需要高度的政治智慧和适足的规制政策。规制的基本路径,可以选择法律的、政治的和管理的路径。从法理上建构小产权房规制政策：一是循国际之通则,在《中华人民共和国宪法修正案》中重新确立公民自由迁徙权与住房权等宪制原则；二是参《中华人民共和国物权法》等保护已拥有房屋财产人权利的法律,出台能够保障没有房屋之公民居住权的《中华人民共和国住宅法》或《中华人民共和国住房保障法》;三是因应时事变迁和环境变化,整合修订《中华人民共和国土地管理法》、《中华人民共和国农村土地承包法》、《中华人民共和国城市房地产管理法》、《中华人民共和国城乡规划法》等法律及其配套规定。以政治的路径建构小产权房规制政策：一是要在小产权房相关的法律立法和决策程序中,以制度化的方式率先建构起小产权房利益相关方的利益诉求渠道和民意表达渠道,以切实、充分、有效地反映民意,整合其利益诉求;二是政府必须重视小产权房利益相关方的参与式合作共治：三是政府必须衡平与保护小产权房各方利益,妥善解决利益冲突,避免矛盾激化可能带来的社会不稳定。以管理的路径建构小产权房规制政策：一是改户籍制为居住制,允许城乡居民自由选择居住地和住所；二是改农村土地承包制为永佃制,赋予乡居民以“恒产”,同时建立健全包括乡居民宅基地在内的集体建设土地交易机制与开发利用机制,增加乡居民“财产性收入”；三是严格控制和规范政府征地,允许乡居民依法通过多种方式参与开发经营城镇建设用地范围外的非公益性项目用地；四是重新建构城乡居民住房开发与供给模式,将重新审视后原则上符合规划的小产权房合法化,并将之纳入合法的住房开发与供应体系。更多还原

【Abstract】 In recent years, lots of illegal developed and traded Houses with limited property rights, under the disguise of old city reconstruction, the reconstruction of village inside cities, the new countryside construction, protected agriculture, and overall urban and rural development, are built. From media reports, academic studies and survey data, we can see Houses with limited property rights are numerous, widely spread, problematic, hotly disputed and has far-reaching influence, which make it one of hottest spots attracted most attention from the government, media, academics, developers and the general public.The formation, development and growth of Houses with limited property rights resulted partially from systematic reasons, for example, urban and rural land are artificially divided into two systems, which is the problem in land management system, different taxation systems result in mismatch in routine power and financial power in fiscal management system and the peasants’empty constitutional rights of the land; and partially from economical and social reasons, for example, high house prices in cities in the reform of the housing market, lack of housing security, transparency of differential earnings from land brought by industrialization and its unreasonable distribution of income, the social assumption of "law never blame the public and law is hard to punish the public"; as well as other regulatory factors, for instance, the absence of local government regulation and seeking rent by power. Besides, the market of selling and purchasing Houses with limited property rights, in fact, is formed in considerable size. Different stakeholders representing different interests are anxious to arbitrage, seek and divide interest and wealth, which is one of key factors for the rapid spread of Houses with limited property rights.The disputes on the legality of Houses with limited property rights and the legal nature of property rights focus on the adequacy of current laws and regulations. The popularity of Houses with limited property rights and policy restriction make Houses with limited property rights inevitably a major issue related to people’s livelihood. The harm to the interests of people attracts great attention from the higher management. Whether it is legal or not depends on whose interests wins the game. Houses with limited property rights has to face risks in development, transaction, property and security, that is, it cannot be publicly traded, can not apply for mortgages, can not be inherited, and cannot fight against the government’s land acquisition and resettlement. It also reflects deep-rooted problems in the rights to use rural collective construction land, the household registration system and civil freedom of movement and choice of place to live.The Central Government and relevant departments have issued a series of regulations and policy on Houses with limited property rights when it keeps spreading and illegally traded, which not only control the development of Houses with limited property rights in macro way, but also regulate and restrict the building or selling of Houses with limited property rights. At the mean time, The Central Government and relevant departments require government in all levels to strictly restrain, solely investigate and severely punish the case of Houses with limited property rights according to the law. In those cities with prominent Houses with limited property rights problems, local governments and relevant departments are also trying to regulate it and have announced a ban on developing Houses with limited property rights, a notice on the risks of purchasing Houses with limited property rights or other prohibitive regulations successively. However in overall, current macro-control policy and the micro-regulation policy did not yield the expected results. The social regulatory policy on Houses with limited property rights is obviously inadequate, because of farmland protection, livelihood improvement and farmer rights protection. The implementation of regulations and policies often encounters countermeasures. To some extend, some policy implementation by some local governments seems looser, which is a good reference for exploring the solution to Houses with limited property rights problem.At present, most studies on the policy of Houses with limited property rights conducted in the academic are either from the perspective of land policy or from the perspective of housing policy. Some studies have advocated the recognition of the legitimacy of Houses with limited property rights development and trade. Some studies are in favor of limiting or banning it. Some studies advocate the legalization of trade-offs, but not commercialization. Most studies suggest to treat Houses with limited property rights in different areas in different ways. The suggestion of Legalizing Houses with limited property rights is based on solving the difficulty in urban housing, or based on considering the issue of resource availability, and based on examining the adequacy of laws and regulations. The suggestion of banning the trade of Houses with limited property rights is based on the protection of farmland and food security, or focused on farmers’ long-term livelihood, or reaffirmed the existing authority of the laws and regulations. All these suggestions are not sufficient to cure the complex problem of Houses with limited property rights.Since Houses with limited property rights problem is already far beyond the single issue of the legal, political or regulatory level, it is a comprehensive social problem. Therefore, it requires a high degree of political wisdom and adequate regulation policy to properly solve it in legal, political and management way.From the legal prospective, this problem can be solved in following ways:Firstly, follow international general rules and redefine constitutional rights, such as the civil rights to freely move and the housing rights in the Amendments to the Constitution of People’s Republic of China.Secondly, refer to the Law of Property Law for protecting purchased houses’ property rights and issue the Law of Housing or the Law of Housing Security to protect housing rights of those who do not have properties.Thirdly, update Land Administration Law of the Peoples Republic of China, Law of Land Contract in Rural Areas of the Peoples Republic of China, the Administrative Urban Real Property Laws of the People’s Republic of China, The Town and Country Planning Act of the Peoples Republic of China and its supporting regulations according to the change of time and environment.From the political prospective, this problem can be solved in following ways:Firstly, in the framework of laws and decision-making process on Houses with limited property rights, interest appeal channels and public opinion expression channels should be constructed in order to effectively and fully reflect public opinion and integrate demands of their interests;Secondly, government must pay attention to the participation, cooperation and co-management of all parities of Houses with limited property rights.Thirdly, government must protect and balance the interests of all parties regarding Houses with limited property rights, properly address conflicts of interest and avoid potential conflicts from causing social instability.From the management prospective, this problem can be solved in following ways:Firstly, change household registration system into housing system and allow urban and rural residents freely choose their residence and domicile; Secondly, change the rural land contract system into permanent tenancy system and give rural residents real estate, while establishing and perfecting collective construction land transaction and development mechanism covering county homestead in order to increase rural residents’ property income;Thirdly, strictly control and regulate government land acquisition and allow rural residents to participate and run land of non-public welfare projects outside town and county construction land according to the law.Fourthly, reconstruct urban and rural housing development and supply model, legalize planned Houses with limited property rights after examination and integrate them into the legal housing supply and development system.更多还原