【作者】 范艺馨；

【导师】 张新民；

【作者基本信息】 西南大学 ， 民商法学， 2010， 硕士

【摘要】 宅基地使用权是指,权利人因建造住宅及附属设施而对集体所有土地占有、使用的权利。我国农村宅基地使用权制度是建国以后在土地政策基础上形成的一个固有制度,具有浓厚的本土特色。由于宅基地使用权关系着中国亿万农民的安身立命,因此十分重要。现行宅基地使用权制度具有无偿分配、无偿使用、一户一宅、限制流转等基本特点。其中宅基地使用权能否自由流转是当今理论界争议的热点问题。现行立法基于农村的社会保障、农村的社会安定、农村集体经济组织的管理体制等因素,采纳了限制宅基地流转的基本观点。随着时代的发展,现实生活中出现了许多新情况、新变化,肇始于上世纪50年代的现行制度面临的挑战自然也越来越多。在理论上,我国民法既承认了村民对其住宅享有所有权,同时又要求住宅流转必须与宅基地捆绑进行,这导致了宅基地流转的立法限制与合同法、继承法等法律部门相互抵触、严重冲突。在现实中,随着经济的发展,城乡融合趋势的日渐增强,权利人要求宅基地流转的需求更加强烈,这导致了宅基地地下交易十分盛行,隐形市场逐渐壮大,交易的安全隐患逐渐增多。另一方面,随着城市化进程的加快,农村人口逐渐减少,然而我国宅基地占地面积不减反增,与此同时,空心村现象也日益突出。可以说,这正是经济学上著名的“公地悲剧”与“反公地悲剧”两个理论模型的经典上演。本文正是将现行制度的理论缺陷及其现实流变作为研究的出发点,以比较法、法律关系分析法、经济分析法、历史分析法为主要研究方法,厘清了宅基地使用权的概念及法律性质,梳理总结了宅基地使用权制度的历史沿革,系统分析了宅基地使用权法律关系及制度变迁。在此基础上,本文认为宅基地流转既具有必要性又具备可行性。因此,立法者不应停滞不前,应当在守成和革新之间作出正确的抉择。除引言和结语外,本文共分为4章。第1章为宅基地使用权制度概述；第2章为宅基地使用权法律关系；第3章为宅基地使用权的制度变迁；第4章为完善宅基地使用权制度的几点思考。第1章界定了宅基地使用权的基本概念；梳理、总结了宅基地使用权制度的历史演进；探讨了宅基地使用权的基本性质。以比较法为视角,本文将宅基地使用权与大陆法系中的地上权、居住权、身份权作了对比分析。本文认为,我国农村宅基地使用权既可以归属于集体土地使用权中,也可以认为其是一种特殊的用益物权。第2章探讨了法律关系的基本理论,并将确定为法学研究方法,用以研究宅基地使用权制度。本文认为,法律关系可以分为静态、动态两种要素,与此相对应,法律关系分析法也应当包含静态分析、动态分析两种模式。本文以现行制度为出发点,在静态分析中,对宅基地使用权的主体、客体、内容作了相应探讨；在动态分析中,探讨了宅基地使用权的取得、变更及消灭。第3章首先借鉴了新制度经济学的制度变迁理论,对现行制度的变迁作了一个初步解读。无论是地方政府,还是村民个体,都对制度变迁具有强烈的制度需求。追根溯源,本文认为现行制度的理论缺陷主要有两方面的原因,其一是宅基地流转不具备法律上的可能性,其二是“房地一体原则”要求宅、地交易必须捆绑进行。本文通过归纳、整理,认为理论缺陷在现实中主要引发了三个方面的问题。第一,宅基地面积日渐增多与空心村现象,正是经济学上“公地悲剧”、“反公地悲剧”的经典上演；第二,宅基地的立法限制与合同法、继承法存在着严重抵触和冲突,导致了现实中司法判决大相径庭；第三,现实情况与立法者的预期目标大不相同,宅基地地下交易十分盛行,隐形市场正逐步壮大,这给社会带来了许多不稳定的因素。随着城市化进程的加快,为了打破制约城市发展的资源瓶颈,全国各地的地方政府开展了宅基地流转的实践探索。本文介绍了具有代表意义的重庆模式、天津模式、广东模式、浙江模式。与多数论文不同的是,本文不只介绍了地方政府改革试点工作的积极意义,更着重探讨了地方政府改革的弊端和缺陷。本文认为,地方政府改革的实施范围较小,农民利益得不到有效表达,因此实现宅基地自由流转才是改革的正确路径。本文从历史学、经济学、比较法三个角度回应了立法者的顾虑和担忧。本文认为,当前的户籍制度改革、农村社会保障工作所取得的成绩和进步,为宅基地流转创造了条件,为制度改革提供了良好的契机。通过以上分析,本文认为,宅基地自由流转不会影响农村的社会保障、不会造成社会动荡和不安。第4章首先探讨了宅基地立法应有的价值取向。本文研究认为,宅基地使用权制度蕴涵着多种法律价值,在处理价值冲突时,应当坚持生存权优先,合理兼顾正义价值与效率价值的基本原则。在私权构造上,本文认为应实现宅基地所有权制度、宅基地使用权制度的重构。本文认为,可以将宅基地使用权认定为成员权,以此解决户籍制度改革所可能带来的理论难题。针对理论上的裸地转让、有偿使用、权利期限、法定租赁、权利监督等几个热点问题,本文一并予以了探讨,并提出了相应看法。以公权为视角,本文从农村不动产登记、政府征收、行政执法、行政指导等方面对规范政府行为提出了相应建议。更多还原

【Abstract】 The right to use rural residential land refers to the right of the owners to possession and use of the land collectively-owned by peasants via construction of residence as well as its ancillary facilities. The system of right to use rural residential land in China is an inherent system with a strong Chinese native characteristic formed on the basis of the land policy after the founding of the People’s Republic of China. It is of great importance, since it has a bearing on the living in peace and settling down to a quiet life for the millions upon millions of peasants in China. The present system of right to use residential land possesses such fundamental features as gratuitous distribution, uncompensated use, "one household, one housing" and restriction on transference, etc. Whether there could be a free transference of the right to use residential land is one of the most hot topics among all the issues argued in the present theory circle. The existing legislation has adopted the basic viewpoint of restriction on transference of residential land on account of several factors like social security, social stability and administrative system of collective economic organization in rural China. As times have changed and developped and along with so many new circumstances as well as new changes appeared in real life, the present system beginning from the 1950s of last century will certainly face more and more challenges. In theory, the Civil Law of the PRC has not only stipulated the ownership of residence for villagers but also required that the transference of residence must bind with the residential land and this lead to the reciprocal contradiction as well as serious conflict between the restriction of legislation for the transference of residential land and the legislation of Contract Law, Law of Succession and other department law. In reality, with the development of economy and the steadily increasing tendency of urban-rural composition, the need of transference of the residential land by the the owners are even more stronger. As a result, the secret backroom deals of residential land is quite popular and the invisible land market is growing in strength. Thus, the potential transaction safety hazard is increasing gradually. On the other hand, as the pace of urbanization has been speeding up, the rural population is decreasing little by little, while the occupancy area of residential land in China did not fall but rise. At the same time, the phenomenon of the inner-decaying village is becoming increasingly conspicuous. It is alright to say that this is just the classical show of the two famous theoretical models in economics, namely the "tragedy of the commons" and "tragedy of anti-commons". This dissertation, with the theoretical defects of the present system as well as the evolvement in reality as the starting point of research and with comparative method, analysis method of legal relation, methods of economic analysis and historical analysis as the main approaches of research, has clarified the conception as well as the legal nature of the right to use residential land and card as well as summarized the history evolution of the system of the right to use residential land. In addition, it has also systematically analysed the legal relation together with the system transition of the right to use residential land. On that basis, the dissertation holds a view that the transference of residential land is of great necessity and feasibility. Therefore, the legislators should not be at a standstill. Instead, they should make a right choice between conservatism and renovation.Apart from the introduction and the conclusion, there are four chapters in this dissertation. The first chapter is the overview of the system of the right to use residential land. The second chapter is the legal relation of the right to use residential land. The third chapter is the system transition of the right to use residential land. The fourth chapter is some thinking about the perfection of the system of the right to use residential land.In chapter one, this article has defined the basic conception of the right to use residential land. It has card as well as summarized the history evolution of the system of the right to use residential land and also discussed the basic properties of the right to use residential land. From the perspective of comparative method, this article has made a comparative analysis between the right to use residential land and surface rights, right of dwelling, right of identity in the continental law system. This article holds a view that the right to use rural residential land in China can be classified into the use right of rural collectively owned land and also it can be regarded as a special usufructuary right.In chapter two, the article has discussed the basic theory of the legal relation and determined to use it as the research methodology of law in order to study the system of right to use residential land. The article holds a view that the legal relation can be divided into two kinds, i.e. the static one and the dynamic one. Corresponding to this division, the analysis method of legal relation can also be divided into two types, namely the static analysis and the dynamic analysis. Taking the present system as a starting point, the article has discussed the subject, object and content of the right to use residential land in the static analysis, while in the dynamic analysis it has discussed the acquiring, alteration and termination of the right to use residential land.In chapter three, using the experience of the institution change theory of new institutional economics, firstly the article has made a brief explanation for the transition of present system. No matter for the local government or the individual villagers, there is a strong need for the transition of system. Tracing the source, there may be two major reasons for the oretical defects of the present system. One is that there is no legal possibility for the transference of residential land and the other is that the transaction of residence and land must be tied together for the integration principle of building-land. By summing up and sorting out, the article holds a view that the theoretical defects in reality may result in problems mainly in three aspect. Firstly, the gradually increasing area of residential land along with the phenomenon of the inner-decaying village is just the classical show of the "tragedy of the commons" and "tragedy of anti-commons" in economics. Secondly, the serious contradiction and conflict between the restriction of legislation for the transference of residential land and the Contract Law, Law of Succession leads to a quite different judicial decision in reality. Thirdly, the actual circumstances is so different from the intended goal of legislators in that the secret backroom deals of residential land is quite popular and the invisible land market is growing in strength. Thus, these bring a lot of unstable factors. As the pace of urbanization has been speeding up, local goverments all over the country launched the practicing and exploring of the transference of residential land in order to break the resource bottleneck which restrict the development of the cities. The article has introduced several representatives like the Chongqing type, the Tianjin type, the Guangdong type and the Zhejiang type. What is different from other dissertations is that this dissertation not only introduced the positive significance of the reform experimentation done by local goverments but also put more emphasis on the discussion of the drawbacks and defects of the reform. This dissertation holds a view that the right way to reform is the realization of the free transference of residential land, because the interest of peasants will never be achieved for the relatively narrow scope of the reform of local goverments. The article has responded to the apprehension and worries of the legislators from three perspectives, namely history, economics and comparative method. This article also holds a view that the reform of the existing household registration system along with the achievement and progress of the rural social security system have created conditions for the transference of residential land and provided a good chance for the reform of this system. Through the above analysis, this article believes that the free transference of residential land will neither affect the rural social security system nor cause the social instability.In chapter four, the article has firstly discussed the proper value orientation of the legislation of residential land. According to the research, this article holds a view that the system of right to use residential land contains various legal values and while handling the conflict of these values we shall adhere to the basic principles of the survival rights first and giving reasonable consideration to both the value of justice and the values of efficiency. For the establishment of the private right, the article believes that the ownership system of residential land and the system of right to use residential land need to be reconstructed. This article holds a view that the right to use residential land can be deemed as the membership right so as to solve the probable coming theoretical problems resulted from the reform of the existing household registration system. As for the several hot topics in theory such as the transference of nudation, compensated use, the term of right, statutory tenancy and superintendence of right, the article has wholly dicussed them at the same time and proposed the corresponding opinions. From the angle of the public right, the article has pointed out the relative suggestions for the regulation of government behaviors from the aspects of the real estate registration in rural China, government expropriation, administrative enforcement, administrative guidance and so on.更多还原