宅基地资格权的权属定位及其制度实现

The ownership orientation and system realization of the qualification rights of homestead

宅基地资格权目前并无现行法上的规范表达和制度设计。对于资格权的性质,学界存在宅基地使用权说、剩余权说和宅基地分配请求权说等观点,但都无法全面体现资格权的制度价值。对学界观点进行梳理与分析,认为资格权应是具有可期待利益的成员权性质的权利,可赋予其宅基地分配请求权和受让权等权能,以保障农户基本居住权益。可完善资格权取得机制,构建资格权的登记颁证制度等,以便于资格权的制度实现。

There is no normative expression and system design in the current law for the qualification rights of homestead.As for the nature of the qualification rights,here are some viewpoints in the academic circles,such as the theory of the right to use the homestead,the theory of the right to surplus and the right to claim for the distribution of the homestead,but it cannot fully reflect the system value of the qualification.Through sorting out and analyzing the academic viewpoints,it is concluded that the qualification rights should be a member right with expectable interests,and by granting the right of claim for homestead distribution and the right to assign the homestead etc.,we can guarantee the basic residential rights and interests of farmers.Through perfecting the mechanism of obtaining qualification rights and establishing the registration and certification system of qualification rights,we can perfect the implementation path of qualification rights.