【作者】 王忠生；

【导师】 蔡立东；

【作者基本信息】 吉林大学 ， 法律， 2010， 硕士

【摘要】 在房价连续上涨的背景下,小产权房的市场份额也不断的扩大,其带来的影响也越来越深。解决小产权房问题,是一场体制、政策和民生的艰难博弈,任何一刀切的解决办法,都是不现实的,也是危险的。特别是用拆除等方式解决小产权房问题,不仅会激化矛盾,也会造成极大的资源浪费。笔者认为,小产权房的实质性问题不在于能否在农村集体建设用地上建设房子,而在于建成的这些房子的流转问题。流转包括在农村集体经济组织内部流转以及将房子卖与非集体经济组织成员的两种情况。第一种情况在法律允许的范围内,无需讨论;而第二种情况正是本文讨论的重点。本文从小产权房的法律生存状态的规定入手分析小产权房的非法性,但是我国现行不合理的土地管理制度使农民承担了国家粮食安全的重担,却对农民合理的利益诉求置之不顾。所以,小产权房在这种不合理的土地管理制度中产生,是可以理解的,笔者是支持小产权房的存在,还农民应该享有的利益。所以,笔者认为,小产权房产权应该合法化,并对其合法化进行制度上的安排。更多还原

【Abstract】 As the media’s continuous report, the quasi property rights’house becomes a focus since the case of the sale of the rural house of Li Yu Lan. Quasi property rights’house is not a legal concept while it comes from the Beijing dialect. Coupled with the media’s widespread publicity, it becomes a special definition which means the house building on the rural collective construction and homestead land but selling to the people outside the collective economic organizations. The property rights’certificates are not issued by the national housing authority but by the villages’or towns’governments. Because of the particular land system in our country, Quasi property rights’house couldn’t get the complete rights. According to the present land system, there are two kinds of land ownerships. One is state lands’ownership and the other is collective lands’ownership. We cannot get full use of the collective lands’ownership for the limits of it. So we will get into troubles when we transfer the house which built on the land that belongs to the collective because we cannot transfer the land ownership with the house at the same time. Although at present the official considers quasi property rights’house as illegal, the widespread disputes about the validity of the quasi property rights’house never stops. At present it is in an embarrassing situation. On one side the government is banning the sale; on the other the sale seems to be crazy. A series of questions which are caused by quasi property rights’house have some important fundamental researching value.The writer analyzes the background and cause of the quasi property rights’house in the introduction in order to give the readers a clear understanding. With the urbanization the quasi property rights’house develops quickly. The direct causes are the unreasonable land finance and the higher prize of commercial houses. The New Village Policy is another important cause. And the social security system of housing can not be practiced properly also makes living space for the quasi property rights’house.There are three chapters in this article and they are arranged in the thought of finding analyzing and solving problems. The first chapter gives introduction of quasi property rights’house, the second chapter analyzes legal systems relevant to the quasi property rights’house and the last chapter discusses the proper systems aiming at making the quasi property rights’house legal. The first chapter gives a brief introduction of the quasi property rights’house. The writer compares different concepts of quasi property rights’house and extracts the concept discussed in this article. Then this part introduces some brief descriptions about production and development of quasi property rights’house. And we know that the quasi property rights’house becomes an influential problem while the government has to face it. In fact the quasi property rights’house is a kind of social problem.The second chapter begins with the illegal status of the quasi property rights’house and comes to the conclusion that the irrational land management system should be reformed. The writer studies the case of artist Li Yulan to analyze the illegal status of the quasi property rights’house. According to the existing legal system, the object of land market transactions is limited to state-owned land use right, the construction of collective land use rights can not be included in the current Basic Law of the land market transactions. Then this part analyzes the reasons for the illegally status of the quasi property rights’house. The government bans quasi property rights’house for two reasons. Firstly, it provides protection of the peasants themselves and secondly it guarantees the national food security. Whether to protect the farming land or the farmers, the country not only has the power but also has the duty to pursue the legitimate purposes. After the analysis of the quasi property rights’house on the current legal system, this part concludes that either from the national policy level or the existing legal system level the quasi property rights’house is prohibited. However, in the sympathy understanding of the quasi property rights’house the land management system is discriminatory about village land’s right. So it is important to reconsider our present land management system. This will do some good to the quasi property rights’house and the following discussion.The third chapter discusses the legitimacy and systemic arrangement of the legalization of the quasi property rights’house. First of all, this part analyzes the legitimacy of legalization from two views. One view is the basis of the legalization. Firstly, there is the basis for its legalization in the party’s policy level. The Third Plenary Session of the party’s 17 passed the "CPC Central Committee on rural reform, development and a number of major issues" and the "decision" suggests the reform of rural land system. It also suggests that a unified market of construction land be gradually established. Moreover, the Constitution and the Property Law also has its legitimacy. The Constitution and the Property Law leave room for the land reform. Secondly, in the real level, the legalization is also has the legitimacy of requests. The quasi property rights’house is the product of the imperfection of our land legal system and relevant regulations. So the quasi property rights’house should be made legal. And the land both in city and village should be equal at price and in right. At last, the system arrangements are provided. This part reflects the collective land ownership system and suggests that in the framework of the existing system, the implementation of the privatization of rural land can not be carried on. And we have to set aside the system of collective land ownership, by establishing and perfecting the system of usufructuary. Finally, this part constructs the transferring system of the rural collective land use rights.更多还原