农村宅基地流转的困境与出路

The Difficulties and Outlet for Circulation of Countryside Homestead

宅基地属于集体所有,但农民享有宅基地上的房屋之私有产权,农民理应当然有处分之权利,但是鉴于我国房地一体的原则,加之现行土地管理制度、国家政策等对宅基地使用权的转让限制,农宅所有权的残缺动摇了宅基地上房屋买卖合同的有效性。农宅流转受千百年来传统观念的牵制和制度的困囿,运行阻滞不畅。但笔者认为,无论是出于物权所有权的法理考虑,还是为了维护社会正常的交易秩序,推定租赁合意、肯定合同效力符合实际生活,对于处理实际问题尤多裨益,实现农宅流转的必要性自不待言。

The homestead is owned by the collective. However, farmers enjoy the private property rights over the houses on the homestead and ought to have the right of dealing with them. However, given considera- tion to the principle that Chinese houses and land are integrated and the restrictions of the current land man- agement system and national policies on the rights of using the homestead, the lack of the homestead＇ s owner- ship has shaken the validity of the housing selling and buying contracts on the homestead. Due to the contain- ment of traditional concepts and the restriction of systems in the past thousands of years, homestead faces ob- stacles in its operations. Given considerations to the property ownership and to safeguard the society＇ s normal trading order, the author thinks promoting the renting consensus and affirming the contract＇ s validity meets the reality in life and is favorable for dealing with real problems. Moreover, the necessity of realizing the home- stead transfer is self- evident.