“户有所居”的法律实现路径探究——以《土地管理法》第62条第2款为视角

A Research on the Legal Implementation Path of"Residence for Each Family of Rural Villagers"——Taking Article 62,Paragraph 2 of the Land Administration Law as a Perspective

法教义学视野下“一户一宅”与“户有所居”之间存在主次关系,且“户有所居”的现行法律实现路径有待构建。实践中可归纳出单一“一户一宅”、“一户一宅”和“一户一居”并存、单一“一户一居”三种广义的“户有所居”实现模式,而狭义的“户有所居”则主要表现为“一户一居”。“一户一居”的实现方式主要是“集中安置”,包括村民自治安置和政府组织安置两种类型。当下,前者需对农村集体宅基地规划与监管、宅基地使用权适度放活、集建房屋及土地的产权明晰三方面内容进行制度建构;后者除前述制度外,还需构建“集中安置”融资监管制度、宅基地置换制度和集体收益民主管理制度;而长远之道在于制定专门的《农村宅基地管理法》。

There exists a primary and secondary relationship between"one family with one house"and"residence for each family of rural villagers"under the perspective of legal doctrine,and the current legal path to guarantee"residence for each family of rural villagers"is yet to be constructed.The practice can be summarized in a single"one household with one house",coexistence ofone household with one house"and"one residence for one household",and a single"one residence for one household".There are three broadly defined modes of realizing"residence for each family of rural villagers",while"residence for each family of rural villagers"in the narrower sense is mainly manifested in"one residence for one household".The main realization mode of"one residence for one household"is"centralized resettlement",which includes two types of resettlement,namely,resettlement by villagers'self-governance and resettlement organized by the government.At present,the former type is required institutional constructions in three aspects,namely,the planning and supervision of collective-owned rural land as a residential lot,appropriately activating the right to use rural land as a residential lot,and the clarification of property rights for collective housing and land.While the latter one,in addition to the systems aforementioned,is also required institutional constructions of a system for monitoring the financing of "centralized resettlement",a system for residential land-for-apartment exchange,and a system for the democratic management of collective income.And the long-term solution lies in the formulation of a specialized"law related to the administration of rural land as a residential lot"