制度变迁视野下的小产权房

Restricted Property Right Housing under the View of Changing Systems

小产权房现象一直是近年来社会关注的焦点问题。面对立法的"暧昧"、政策的限制、执法的放任,小产权房如星星之火般燎原发展。理论界和实务界在考虑立法对策时,不能仅从"就法论法"的角度细化立法、完善法律实施机制,法律毕竟是基于人性而构建的制度,从制度变迁的视角深入剖析小产权房产生的内在动因、利益诉求,通过立法和司法实务的进一步考察可知,"失范"的小产权房应借助自下而上的诱致性变迁动力转变为自上而下的强制性变迁的规范内容。

The issue of restricted property houses has been the focus of social attention in recent years. They have been expan- ding rapidly in face of ambiguous legislation, policy restrictions and slacken law enforcement,. In this respect, circles of theory and practice should go beyond the attitude of law for its own sake in discussing legislative measures, such as to further refine re- lated legislation and to perfect the implementation mechanism, as law is a kind of human nature - based system construction. This paper makes an in - depth analysis of tbe intrinsic motivation and interests demands involved in housing with incomplete property right from the perspective of system changes, and then further investigates the related legislative and judicial practice. Finally, it is proposed that the runaway restricted property right housing should be regulated by the top - down mandatory forces rather than the bottom - up induced ones.