“三权分置”政策下宅基地流转方式运行机理的剖析和思考

Analysis and Thinking on Operation Mechanism of Homestead Circulation Modes Under Policy of"Three Rights Separation"Policy

中央提出完善农民闲置宅基地和闲置农房政策,探索宅基地所有权、资格权、使用权“三权分置”,深化宅基地制度改革。以中央政策之宅基地“三权分置”内容为背景,重点剖析“三权分置”政策下宅基地“转让”“互换”“出租”“赠与”“入股”“抵押”等流转方式运行遇到的问题,对宅基地使用权双重性认知存在的误区,宅基地使用权无法被分解为宅基地资格权和“宅基地使用权”,宅基地使用权上设立另一用益物权其理论依据不足或创新法理未成就,“三权分置”格局下宅基地房屋财产权和房屋使用权新两权界定之困惑,依据法理和良法界定宅基地使用权物权变动,以及依据债权产生法则为宅基地使用权流转创造条件等宅基地使用权流转的若干理论与现实问题展开分析。期望引起学界多视角和深层次关注,为未来创建宅基地使用权流转良法制度献计献策。

In order to deepen the reform of the homestead system,the central government has put forward a policy to improve the policy on idle homestead and unused rural housing for farmers,and explores to improve"separation of three rights"that means the separation of the ownership,qualification and use rights of homestead.This paper was developed against the backdrop of the central policy of the house site"three rights separation",and focused on the analyses of its embarrassing operation problems containing the"transfer","exchange","lease","gift","share","mortgage"and some other circulation modes.Finally,theoretical and practical problems on the transfer of homestead use right were put forward,which contained wrong duality cognition of housing land use right and the right to use the homestead could not be broken down into the homestead eligibility right and"the right to use the homestead".There were also some problems needed to be solved,such as setting up another usufructuary right on the right to use house sites without theoretical basis and legal theoretical innovations to believe it.In addition,defining two created rights which contained house property and usufruct of house under the"three rights separation"and delimiting the rule of property changes and creditor's rights to produce on the right to use the homestead to create conditions for the land circulation right to use house sites,jurisprudence and good law were also two problems worthy of thinking.The purpose of the research was to call the academic community to further study the proposition from multiple perspectives,and to offer solutions to the future establishment of the homestead use right transfer system.