Abstract：In the right group of homestead, which right of rights can be transferred? There are a lot of
arguments over this question in both academic and practical areas. It seems that the question of the
inheritance of the ownership of rural house buildings on the homestead and the right to use them is
imminent, although the question of market circulation (such as sale and mortgage) can still be
suspended. Some scholars insist that the right to the use of homestead cannot be inherited due to its
nature of social security and social welfare. But it is not true. This paper reflects and criticizes this
cliché, and tries to point out that the essence of the homestead system is not based on social security, but
on the economic management in the planned economy. The focus of homestead is not “every household
has a residence”, but “households will have solid residences”. By determining the residence of farmers,
it maintains the urban-rural dual system. Whether to restrict or to liberalize the circulation of the right of
homestead does not depend on the nature of social security of the rule of homestead system.
In this regard, the Ministry of Natural Resources issued a document to clarify that the ownership of
rural houses on the homestead can be inherited, and determine that the use right to rural houses can be
inherited by urban residents. The principle of this doctrine is the rule of integration of real estate and
land. However, the integration of real estate and land aims at urban houses, and the purpose is to clarify
the integrated transfer of land use right and the ownership of house. There is no such context in the
homestead problem, and the law should not rashly accept the integration of real estate and land as the
basic logic of homestead. In the context of rural revitalization, the development of the homestead system
should be emphasized on the actual use of homestead. Therefore, taking inheritance as the starting-point
to open the circulation, although taking into account custom and tradition, it is still relatively extensive
and less precise: the key is to estimate whether the use of homestead is conducive to the development of
collective economy and the construction of agricultural countryside, and whether the use value of
homestead as land is really brought into play.
For the above reasons, the author believes the ownership of rural houses and the right to the use of
the homestead should be separated at the level of right. The ownership of rural houses comes from the
construction of farmers at their own expense, which should be attributed to property rights, while as a
management system, the right to the use of the homestead emphasizes on economic controls. Although
the right to the use of the homestead is included in the usufructuary right in the civil code, it does not
mean that it equals to the general property. Therefore, the two should be seen and treated completely
differently. In the current situation, under the guiding ideology of “major reform must be based on the
law”, it has institutional legitimacy and economic rationality to separate the ownership of rural houses
on homestead from the right to the use of the homestead. In the institutional structure of house land
separation, the ownership of rural houses is an inheritable property right, while the right to the use of the
homestead restitutes to collective economic organizations as an “vacuum” right, and applies to the
model of legal lease. The person who obtains the ownership of rural houses takes the legal lease right of
homestead use right as the right basis, which can not only ensure that the use right of homestead is
retained in the hands of collective economic organizations, but also realize the separation of three rights
of homestead in a better way. In practice, when making a distinction, it should not address to the
distinction of “inheritance” or “transaction”, but should focus on “house” and “right to use”, and ensure
that collective economic organizations hold the right to use. In this way, the transaction market of rural
houses (including rental and transaction) can be liberalized, while the basic instruction of
the rule of homestead can be kept.
张凇纶. “房地分离”：宅基地流转之钥——以“宅基地继承”之困局为切入点[J]. 浙江大学学报(人文社会科学版), 0, (): 1-.
Zhang Songlun. “Separation of House and Land”: The Key to Homestead Transfer,
Taking the Dilemma of “Inheritance of Homestead” as the Starting Point. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.
