论小产权房屋买卖合同的法律效力

Discussion on the Legal Force of Sales Contract to Houses with Limited Property Rights

在我国,依据两种所有制形式的划分,土地被人为分割为国有土地和集体土地,同属于用益物权的国有土地使用权和集体宅基地使用权地位大相径庭,国有土地使用权可以自由转让,宅基地使用权却受到严格限制。针对农村房屋买卖合同效力问题,学界和司法实务界一直存在"有效说"和"无效说"的不同观点,采用相同的法规却得出了相反的结论。其中严格依照《合同法》以及相关行政法规而产生的"无效说"已成主流之势,并得到广泛的认可。然而依据司法实践,"无效说"适用中的缺点也逐渐显露。文章结合北京宋庄案例,从《合同法》《土地管理法》《物权法》等多个部门法角度分析"无效说"自身的局限性,尝试证成"有效说"的合理性和实践价值,以期对于现实生活中大量的小产权房屋的买卖合同纠纷提供理论借鉴,探寻解决进路。

In China,according to the two for ms of ownership,the ownership of land is artificially divided into state- owned and collective- owned. The right to use the state- owned land and collective homestead both belongs to the usufruct right,but they actually show great differences. The right to use state- owned land can be freely transferred,but the right to use the homestead is strictly limited. In view of the effectiveness of sales contract for the rural housing,the academic and judicial circles have always held different views of＂ effective ＂and＂ invalid ＂. In this case,followed by the same regulation,it obtains adversary conclusions. Among them,the ＂ invalid ＂strictly follows the Contract Law and its relevant administrative regulations has became the main trend and obtained the widely recognition. However,according to the judicial practice,the shortcomings in the application of ＂ invalid ＂ are gradually revealed. Linking with the information of the case of Songzhuang in Beijing,this paper analyzes the limitation of ＂ invalid ＂in several aspects such as the Contract Law,Land Management Law and Property Law. It offers sufficient proof and reasons for the rationality and the practical value of the＂ validity ＂.To that end,this paper aims to provide theoretical reference for the dispute on sales contract for majority of uncompleted- right houses in practice.