“三权分置”背景下宅基地资格权的法律性质与制度实现

Legal Nature and System Realization of Homestead Qualification Right under the Background of “Separation of Three Powers”

作为中央政策性文件所创设的一个新概念,目前“宅基地资格权”并无现行法上的规范表达和制度设计。对于资格权的法律性质,学界上存在宅基地剩余权说、成员权说和用益物权说等观点。通过对学界观点进行分析梳理,再基于“三权分置”改革目的及宅基地资格权生成路径的分析,认为资格权应是兼具身份属性与财产利益的成员权性质的权利。成员权的性质定位不仅符合宅基地资格权的生成逻辑,有利于保障农民居住权益,更有助于宅基地流转权能的实现。在制度实现方面,为了落实宅基地“三权分置”改革思路,建议从明晰资格权权利主体、健全资格权权利内容、建立资格权登记制度等三个方面展开。

As a new concept created by the central policy document, there is no normative expression and system design of “homestead qualification right” in the current law. Regarding the legal nature of qualification right, there are some viewpoints in academic circles, such as the theory of residual right of homestead, the theory of membership right and the theory of usufructuary right. Through the analysis of academic viewpoints, and based on the analysis of the reform purpose of “separation of powers” and the generation path of homestead qualification right, it is considered that qualification right should be a member right with both identity attributes and property interests. The nature orientation of membership right not only conforms to the logic of the generation of homestead qualification right, but also helps to protect farmers’ living rights and interests and realize the right of homestead circulation. In terms of system realization, in order to implement the reform idea of “separation of three powers” in homestead, it is suggested to clarify the subject of qualification right, improve the content of qualification right and establish the registration system of qualification right.