农村宅基地使用权抵押的立法嬗变与制度重构

Rural Homestead Use Right Mortgage: Legislative Evolution and Systematic Transformation

宅基地能否抵押及如何抵押是学界争议之焦点。基于宅基地立法之嬗变及相关法律机理证成宅基地使用权有限抵押的成立,其制度设计上应坚持公平与效率的辩证统一,并在内部法权结构上体现实质正义和保护农民的倾斜性救济原则。宅基地抵押本质上为土地使用权之抵押,其可通过抵押合同和登记公示而设定,农民集体成员和非集体成员皆可成为抵押权主体。抵押权实现时,在同等条件下应赋予集体成员优先回赎权,或本集体成员无意购买时,可由农民集体优先有偿收回。立法上应赋予农民宅基地使用权之抵押权能,构建宅基地有偿使用制度和期限制度,并修订《物权法》等法律以确保宅基地有限抵押制度的有效运行。

The issue whether farmers are able to mortgage their homestead use right indicates the conflict between legislative principles and policy orientation. Research method used is based on the evolution of the homestead legislation and relevant legal mechanisms,and the establishment of the mortgage with the use right of rural residential lands certificates. The design of rural land mortgage system should aim at a dialectical unity of fairness and efficiency with the purpose of achieving common wealth,and the internal law structure is supposed to operate on both the principle of substantial justice and the principle of relief on the farmer. Essentially homestead mortgage land use rights is collateral which can be set through the mortgage contract and registration,and the members of the collective farmers and non-class members can all be eligible to apply for the mortgage principal. When a mortgage is made legally possible,either the family members of the community should be conferred with the preferential purchase rights,or the community conferred with the preferential right of compensated requisition on some terms when the individual members of this community are not willing to purchase. The legislative power should endorse the mortgage land use right on the part of farmers,build homestead paid system and deadlines system,and revise the ‘Real Right Law'and other laws in order to ensure the effective operation of the homestead limited mortgage system.