“城中村”土地改造中宅基地换房的法律探析——以天津市的做法为分析对象

Legal Analysis on the Changing Homestead for Housing in the Land Reclamation of “Villages in City”——Taking Practice in Tianjin as the Analysis Object

为破解农村城市化过程中土地、资金双重约束的难题,加快城市化进程,天津市在"城中村"土地改造中,采取了宅基地换房的做法。此种做法具有行政权力主导性、土地征收伴随性、宅基地收回无偿性的特点。虽然取得一定成效,但是在实践中还存在着主体错位、农民的选择权、房屋所有权和宅基地使用权受到侵害,农民的利益难以得到保障、不能分享土地增值收益等诸多法律上的障碍和问题。要解决上述问题,必须依法确定农民集体行使宅基地换房权利的组织机构,通过修改相关法律条款和充分发挥政府的公共管理职能来依法保障农民合法财产权利,同时还应当依法保障农民"宅基地换房"的知情权和参与权,建立和完善保护农民合理的利益分配法律制度。

In order to solve the difficult problems of double restriction of land and capital in the process of rural urbanization and speed up the process of urbanization, the measure of changing homestead for housing has been taken in the land reclamation of'villages in city'in Tianjin. This measure has the characteristics of the leading of administrative power, the concomitant of land expropriation and free charge of the withdrawn homestead. It has made great achievement, however, in practice, there are also some problems and obstacles in law, such as the subject dislocation, the farmers' rights to choose, the housing ownership and the right to use homestead being invaded, farmers' interests cannot be guaranteed and the land value-added benefits cannot be shared. To solve the above problems, it is necessary to determine the organization of farmers' collective exercise of the right to change homestead for housing, to amend the relevant provisions of laws and make the governments to play a major role in the public management functions in order to protect the farmers' rights of legal properties by the laws. At the same time, the farmers' rights to learn the truth and to participate in changing homestead for housing should be guaranteed by the laws and the legal system should be established and improved to protect the farmers' reasonable interest distribution.