“三权分置”下宅基地收回权的法理钩沉与制度续造

The Right to Repossess the Homestead Use Right and Its Legal System Expression from the Perspective of Three-dimensional Interpretation

对宅基地收回权的认知不应拘泥于《土地管理法》第66条的字面意思,不能简单套用传统公法的权力阐发逻辑,而应从历史、体系以及目的维度探寻本源。宅基地集体所有权由物权权能和管理权能组成。宅基地收回权作为宅基地集体所有权管理权能的权利转化,是“三权分置”下落实宅基地集体所有权的制度体现。面向权利法定要求,应以《土地管理法》第66条为基础,提取《土地管理法实施条例》第36条相关内容后单设宅基地收回权专条。宅基地收回权应由村农村集体经济组织代表村、组成员集体统一行使,适用情形仅限于基于集体利益需要,违反法律或行政法规关于节约集约利用的规定,因撤销或迁移等原因停止使用宅基地,非本集体农户在原有宅基地上房屋拆除后未获批重建,以及法律、行政法规规定的其他情形,且需引入“六步”程序,将原批准用地的政府批准作为宅基地使用权收回行为生效依据。

We should research the essence of the right to repossess the homestead use right from three angles of history,system and purpose,instead of staying in the literal meaning of Article 66 of the Land Management Law,nor simply applying the power theory of traditional public law.The collective ownership of homestead consists of property rights and management rights.As the right transformation of the management rights of the collective ownership of homestead,the right to repossess the homestead use right is the Important contents of the implementation of the collective ownership of homestead.According to the requirements of the rights legislation,the relevant research should be based on Article 66 of the Land Management Law.After the relevant content of Article 36 of the Implementation Regulations of the Land Management Law is extracted,a separate special law article on the right to repossess the homestead use right should be set up.The right to repossess the homestead use right should be exercised by rural collective economic organizations at the village level.Its application should be determined as follows:withdrawal based on the needs of collective interests,violation of laws or administrative regulations on intensive and economical use of homestead,termination of use of homestead due to cancellation or relocation,the legal subjects other than the collective farmers failure to obtain approval for reconstruction after demolition of houses on the original homestead use tight,and other situations stipulated by laws and administrative regulations.In addition,it is also necessary to establish a“six step”procedure,and take the government approval of the original approved land as the effective basis for the withdrawal of the homestead use right.