From the legal issues related to case of rural house circulation

Zhejiang Ming Sheng law firmZhang Yazhen

 

Abstract: the circulation of rural houses in real life is more and more frequent, today, because the law of fuzzy, contradictions mainly rely on the policy documents are solved, policy documents are published, they not only do not Every order is executed without fail., resulting in difficulties in judicial handling this kind of case. With the accelerating process of the city in recent years, commercial housing prices is abnormal high not because of interest, village collective tend to its own development, because of the interests of farmers tend to self sale, but because of various practical needs of farmers will be owned houses sold, the corresponding citizen doubt on the utility and decree life because of the urgent need for various kinds of consider, resulting in a large number of rural housing transactions phenomenon, is from south to north, omnipresent, need as soon as possible to the solution from the legal level. A case study based on the run^[1]Starting, and case analysis, in order to identify, solve some practical problems.

Keywords: one of a house; rural housing land; the small property right house

A,            Case synopsis

"In 1987, the development of new street Xiangshan County construction crane town government, collective (properties) land for housing land open to the public auction. The plaintiff (Zhu) to the crane Pu government bought a (piece of) Crane Road 6, homestead, covers an area of 49.4 square meters, and neighbors built a house of three storeys, the total construction area of 138.51 square. In 1991 July the defendant (Zheng) to buy the house to the plaintiff, the agreement of housing registration and the sale of housing costs are borne by the defendant. The plaintiff to the defendant after the delivery of housing use, and requires the timely processing of transfer procedures, but it has not been handled. By 2005, the housing made collective land certificate and collective property cards. Then the registration of alteration due to policy failed to transfer. In 2009 May, the plaintiff to the village to the town government approval of housing, urban construction and the village collective land housing procedures, because the plaintiff has enjoyed one of a house can not re approval, also found that the relationship between the plaintiff through a registered permanent residence to the crane Pu Zhen Crane Village, ready for the sale of the village of housing registration, the plaintiff found himself rights being violated, report to the public security department, after mediation defendant compensate the plaintiff loss Lu Qianyuan integration, the plaintiff a hukou restitution." Based on the above facts, the plaintiff argues that: "the relationship between the sale of housing in violation of state policies and regulations, system invalid trading relationship, and because the defendant fails to apply for transfer to the plaintiff can not enjoy the housing approval, in order to maintain the legitimate right of residence, now put forward: 1, to confirm the original, the defendant between crane Pu crane West Road No. 6 building the sale is invalid; 2, sentence the defendant to the plaintiff immediately leases housing; 3, the litigation costs to be borne by the defendant."^[2]

Two,            Case background

The case of disputes involving land property, the Department in 1986 to the name of the government for he Pu Zhen He Pu Zhen Huang Jin Tan Cun collective all land, the examination and approval by the county government to the homestead in the name of block to auction, buyers no identity, geographical restrictions,^[3]Purchase of land, construction of houses by, or two or three layers, according to the required. The plaintiff Zhu Department of the purchase, he Pu Zhen Huang Jin Tan Village, purchase building three layer. 1991, the plaintiff for children, to avoid the family planning policy, intends to build this controversy after buying out the sale of the property; Zhu housing defendant zhengmou, Department of fan Aoxiang screw reef Bay Village (1992, crane Pu and fan Aoxiang and town after the merger to crane PU), because in the remote mountain village to change the living conditions, to sell only to his own village, rural housing financing proceeds, the savings of many years in payment after the family purchased the property dispute case. The two sides in July 5, 1991 signed a "housing transfer agreement", the transaction price of 21100 yuan,^[4]A man in the middle (two) contract, Party A (Zhu), B (Zheng) seal. Since 1991, the defendant began to occupy, use the disputed property so far.

The self built housing to sell to the dispute, have not made any real estate warrants. The sale of real estate after the controversy, from the family planning a thing, lost contact with the village people and family. To handle the disputes property of matter, the defendant for the plaintiff failed for many years. 2005, the plaintiff's relatives and friends that the plaintiff through backward, contact the plaintiff and the identity of the plaintiff for the disputed property, for which the two countries in March 25, 2005 signed the "agreement" for the property permits, agreed: B (Zheng) now need to do house property card, by a party (Zhu) agree, to assist Party B do all the formalities for license required (mainly the identity card, account of this, ID delivery certificate to Party B), Party A unconditionally provide Party A Party B; a one-time payment of 8000 yuan as compensation fee; Party B makes the card, Party A shall provide free of charge card formalities, not plus other conditions. April 18, 2005Will the housing property, Zheng ban Zhu is a name for yourself, to change, due to the policy changes,^[5]Failed to change. Since then, real estate has been controversial in Zhu name (dispute has property by Zheng possession, use). In 2009 May, Zheng because disputed property transfer, without informing the Zhu circumstances, will Zhu account from the crane Pu Zhen Huang Jin Tan Cun He Pu Zhen crane moved into the village, and plans to make your account from the crane Pu screw reef Bay Village moved to crane Pu Zhen crane after entering the village, the dispute will be property management transfer Zheng, was found, was forced to sign "mediation agreement", both sides agreed to a one-time compensation: Zheng Zhu 6000 yuan, and the family moved back to Zhu Mou account he Pu Zhen Huang Jin Tan cun. Due to the transfer of real estate related preparation work is not yet complete, therefore the dispute of housing still in Zhu. In April 18, 2010, Zhu sued Zheng, the reasons and demands such as the. Another check: Zhu four brothers, Zhu's fourth. In 1978, the village will be a divided into three households, Zhu and have a family (family housing land use). In 1979, the village also allocates a block of Zhai Ji to Zhu and have two people, after consultations, the new Zhai Ji GUI Zhu Zhi, family property (Zhai Ji) GUI Zhu^[6].

Three,            The legal arguments

This case is not complex, contradictions and disputes due to changeable and the existing rural land policy of our country flaw, in this case parts, the law not only failed to settle disputes, stabilizing the social function, instead of the contradiction in real life. I accept this defendant commissioned is a trial after the trial, the author has commissioned a lawyer commissioned in the case, because the case lack of confidence and make effort to arrest thinking.^[7]The analysis in the investigation of the case, the relevant evidence to the application of law, but also communicate with the judge, the case summary procedure to the ordinary procedure of first instance, conducted second sessions. According to the facts of the case and the plaintiff in the lawsuit in question, the author clearly inform the defendant loses little risk, and on the part of the plaintiff and the judge's view on the question, get the trust of the parties. In the case of the defendant without losing under the reason and tell easily cause confusion in concept form to identify, traceThe source, and puts forward some personal views on legal problems in the transfer of rural housing.^[8]

(a), effective, legitimate the original defendant housing transactions

Law of non retroactivity principle, decided the verdict should apply to the original, accused both sides traded when (in 1991) effective laws and regulations, laws and regulations, rather than the case when. "Legislative law" the eighty-fourth regulation, laws, administrative regulations, local regulations, autonomous regulations and separate regulations, rules of non retroactivity, but except for special regulations to better protect the rights and interests of citizens, legal persons and other organizations for. Although the law of non retroactivity principle has multiple understandings, this case was broken does not exist without the use of the principle except reason, therefore, relevant regulations need to watch this case the original, the defendant transactions. One, because the housing transaction agreement signed in 1991, so there should be revised in 1988 "land management law", the law prohibits the sale of rural housing is not, and according to the law the forty-first regulation, urban non-agricultural population accounts for residential, all require the use of collective land, must be approved by the people's government at the county level, the land area shall not exceed the provisions of the province, autonomous region, municipality directly under the central government, standards, and referring to the national construction standards for land compensation and resettlement fees, so a law on the real estate transaction not prohibit, two to the town of agricultural population is non prescribed use of collective land, this case can be a real estate transaction do not break the law;^[9]Two, according to the Zhejiang province by the people's Court on the trial of cases of disputes "housing seminar" (ZG [1992]82 documents) regulations, the sale of rural private houses, such as the voluntary and contract, the buyer has been delivered to the limit, and the actual use and management of housing, and no other illegal acts, not only the sale procedures perfect, should be recognized trading relationship, but should go through the relevant formalities; three, according to the "general rules of the civil law" eighty-fifth is a contract between the establishment, change, termination of civil agreement. The contract established according to law, shall be protected by law. Eighty-eighth contract shall, in accordance with the contract, fulfill their obligations. Accordingly, in this case the transaction does not exist invalid reason.

(two) the legal concept of the plaintiff lawsuit clarification

1, one of a house --From the original show like "because the plaintiff has enjoyed one of a house can't again for approval"

Any regulations, must have a purpose, but a house rule, but easy to misleading. One of a house, language understanding is a family can only have one homestead, which started in the land management law revised in August 29, 1998 through the "". The act sixty-second provisions of the first paragraph, one rural household can own a house, the homestead area shall not exceed the provisions of the province, autonomous region, or municipality directly under the central government standards. Subsequently, the relevant departments of the State Council issued "almost to a one house" this article summarized and used for the local.^[10]In 1986, after the 1988 revised "land management law" was not a one house rules.^[11]However, no provision does not represent the rulingWithout the regulation of land use,In 1986 1988, "land management law"ArticleArticle 37, the provisions of Article 38, township (town) village construction should be in accordance with the reasonable layout, the principle of land conservation planning approved by the people's government at the county level, implement. Residents of rural residential, should use the original and the village of vacant houses. The use of farmland, audited the Township People's government, the approval of the people's government at the county level; the use of the original homestead, village of vacant land and other land, approved by the people's governments at the township level. Residents of rural residential land use, shall not exceed the provisions of the province, autonomous region, or municipality directly under the central government standards. Sold, rented houses after application, shall not be approved.^[12]This shows that, for a long time, the ruling on the homestead question has enough attention, but or because of contradiction does not exist or is not pressing reasons, some countries have no provisions on one of a house. However, one of a house in 1998 though not explicitly stipulated, does not represent the executive is condoned or even hope that the farmer land unrestricted has, but has been actively to the homestead of strong intervention.^[13]The strong pre intervention and post proclaimed one of a house in mind, can be summed up as the economical use of land, land use and protection of the rural social order and stability. Refer to "a house" the relevant provisions, including the 1998 "land management law" and made comments [2004]234, "on the strengthening of the management of the rural homestead" (the provisions of one rural household can own a house, the area shall not be more than the province (area, city) standards. All localities should be in combination with the local actual situation, formulate a unified rural homestead area standards and land conditions apply. Do not meet the conditions for application shall not be approved homestead. The countryside will sell original housing, rental or gift others, to apply for the fund, shall not be approved. In the rural housing construction using the free base, old and unused land, by the village, township (town) stage by stage, batch and submitted to the county (city) approval, by the township (town) by Pope to households. Using the free base, the old residential building, must also be consistent with the planning of the "more than one house" and vacant residential, all localities should establish incentive mechanism, encourage rural homestead leases excess). We can draw a conclusion that a house meaning is not mandatory for a family can only have a house, but only provides for the application to the competent authority in the new residential restrictive conditions and methods, where the existing residential households, as long as there is a house, the relevant authorities are no longer on their application approved. But for the purchase of residential housing or the form to the village for residential, this is not limited to. A house is a door, every household there is not a house, can be obtained by application of a house, and not the provisions of other explanation or as deprivation has enjoyed other residential outside the house of a house.^[14]

In view of this case, the plaintiff in 2009 due to "have enjoyed a house can't again for approval" Homestead ", which has enjoyed" specifically in 1979 for "inherit their parents house for the land" and " has enjoyed" and shall not be granted approval authorities think? "In 1987, Xiangshan county government to develop new crane Pu street construction, the plaintiff had to crane Pu government bought a (piece of) Crane Road 6, homestead", it is the authorities consider "enjoy" and shall not be granted approval? No "enjoy" and was in charge of mistaken "enjoy" and shall not be granted approval or? Needs analysis: according to the 1989 National Bureau of land management "several opinions about " determine land ownership of the provisions of article thirty-fourth, has inherited through the housing of the homestead, heirs have the right to use. If the successor has the homestead, the total area of more than the prescribed standard, can according to the actual area of the collective construction land use rights. In 1995 the state land administration "to determine land ownership and use right of certain provisions of the" provisions of article fifty-first of this is part of the amendment, has inherited houses homestead, can determine the collective construction land use rights, but must be registered more than the standard size of the note card and land certificate in the land. After household housing or housing demolition, alteration, renovation now or government implementation planning to construction area, according to the standard prescribed by the local government to determine the right to use, the excess return of collective. Combined with the land and resources [2004]234 "on the strengthening of rural homestead management opinions" provisions of the relevant provisions of the spirit, that is aimed at the existing homestead farmers due to inheritance and other reasons again won the house of explanation, but also expressly provides "inheriting the housing after the housing base, can determine the collective construction land right to use", visible inherit housing made of homestead, homestead is the door. In this case the plaintiff has inherited the ancestral home and land conditions, has met the "one of a house" conditions, the examination and approval authorities in accordance with the provisions of no longer approve. For the plaintiff in the "1987, Xiangshan county government to develop new crane Pu street construction the plaintiffs had to crane Pu government bought a (piece of) Crane Road 6, homestead", because of its income no identity restriction, not collective distribution income, so it does not meet the characteristics of farmers access to land, farmers "the laws and regulations of the homestead" has the obvious difference in concept, so there is no "Homestead" and can not be used as the examination and approval authorities as "a house" and refused to approve the reason. The plaintiff in the lawsuit in confusion together put on a par with, just as to confirm the contract null and void of the strategy, but the judiciary must be clear, so as not to be misguided.^[15]

In view of the defendant, the purchase of property for dispute, will own the only housing (land use right) transfer to the village, is no longer the homestead state? Due to the controversy or purchased property at sites list? In 1961 the "Regulations of rural people's commune work (Revised Draft)" the provisions of article forty-third, members of the house, always belong to all members. Rotarians have the sale or lease of housing rights. Members of rental or sell houses, through the intermediary appraisal fair and reasonable rent or house prices, by both the sale or lease contract. In 1982 the State Council "rural housing land management regulations" provisions of article fifteenth, due to the sale of housing and the transfer of homestead right of use, should go through application, review, approval procedures in accordance with the provisions of article fourteenth. And in 1986 formulated and after repeated revision, the revised "land management law", which in the different clauses of villagers sell, rental housing, and then apply for homestead, shall not be approved. Thus, according to the situation, because the sale of its housing and no longer apply to the collective land, not in the grounds of the plaintiff purchased and dispute, as "a house" reason not to the defendant may have the homestead application.^[16]

2, rural house circulation prohibitedPlaintiff's complaint -- "housing sale in violation of state policies and regulations, the sale of the invalid argument"

Rural housing transactions, from all over the court rules and judging, basically on the real estate transactions between group members agree,^[17]But to the collective farmers to buy the collective economic organizations of the rural housing generally recognized as invalid.^[18]For the mentioned in this case two rural housing transactions, real estate transactions with relevant disputes, the original, the defendant and the village is trading on private housing. According to the existing judicial state, in between the defendant and the Village real estate transaction, much as effective;^[19]The case for the original defendant at different rural collective, controversial real estate transaction may be recognized as invalid.^[20]But in view of the case of disputes real estate homestead is the purchase of income rather than collective distribution caused by the small property right house, so the case disputed property is more similar to today dispute rather than a general sense of rural houses (land), so the judicial application of top to consider effective policy law; two the dispute of this case is different from the general farmers housing distribution to the homestead property construction. In the case of the legitimacy of transactions mentioned earlier, and considered state of the city residents buying rural housing limit to prohibit the restriction of file, which began in 1999 the "Office of the State Council on strengthening the management of land transfer is prohibited land speculation notice" (Guo Ban Fa No. [1999] 39).^[21]The laws and regulations not to farmers housing transactions restrictions, in this case the two sides of the transaction is not against the law, the plaintiff said "housing sale in violation of state policies and regulations, the sale is invalid" cannot be established.

Combined with the reality of today, the prohibition of different members of the collective rural housing transactions and identity within a group of real estate transactions, and the actual cause "a house" and the relevant provisions of a long homestead gross fixed (household and other legal requirements of distribution of homestead circumstances) case, there is a households and more houses or there are households without housing. From a practical point of view, the circulation of rural houses, the fundamental problem relates to the circulation of homestead. A view is, homestead and other collective land together, constitute the subsistence and social security of the farmers,^[22]This is the main basis against the land, including the rural land circulation. Another view on the contrary, that agricultural land and farmers' social security, should be abolished collective ownership right peasant private.^[23]From the first point of view, in this case to investigate, obviously paradox; and on the second point of view, one is Professor Qin Hui's argument for reference, two is also in line with legal and human rights: from the gist to observe, first of all, the sale of real estate disputes since 1991, has not been in succession property (the house) to live in, so there is no land to its security theory; secondly, on 1991, the plaintiff is forced by the family planning policy (for other possible for life have a significant impact on such as disease important reason does not need capital differences), to migrate to raise as much money, real estate sale disputes, is the necessary preparation for the future survival, development of. This put in, is no Nai move and wise (1991 to the present, it can live in my hometown twenty years, 21000 yuan, then sold property income is controversial plays a vital role in. As in other concerns are of vital importance, homestead house can not play any role, security theory, is a paradox); finally, apart from the family planning policy under pressure, the defendant has the right to choose their own way of life, for the good and the bad, the right of freedom, not in power their consideration, actually interferes. From the point of view, the sell their house, looking for a better living environment, from the remote mountain village, moved to port towns, which rely on the purchase of the controversial housing business for many years, compared with the original residential village life, whether vertical or horizontal comparison, living standards have significantly improved; secondly, the defendant as a normal rational citizens, in the sale of rural housing only when, inevitably in the other residential premises are available only after the decision, saying the homestead farmers has guarantee, and cannot therefore deny other houses of farmers security; finally, the survival status of their own in self, freedom of choice of cases, will be prudent to, and this is the respect for the human rights of individuals. The plaintiff was through the sale of real estate disputes, get rid of the predicament; the defendant for the purchase of property disputes, to change the living state of the dream. In the absence of such transactions, the plaintiff's room may (including family planning) or remove or sign, the defendant may still in the remote mountain village. With China's implementation of household registration management, many farmers the freedom of migration, occupation restrictions limit the choice of system, the author thinks that the prohibition of circulation of rural houses intention in the setting of early or possible land security the most scholars and experts on,^[24]But today, may form because of social need to control or land leasing system of interest and the rights of farmers deprived.

(three) the nature of the small property right room -- the case of disputes of property  

From the disputed property characteristics, in the case of housing land is the source of the town government unified collection, collection to the town on behalf of the government of the land sold, the plaintiff purchased block (after the self built housing).^[25]Therefore, the case of disputes of real estate is not a general idea of the area of land, and should belong to the category of collective construction land.^[26]The traditional sense of the homestead and set construction lies in the fundamental distinction is the homestead is unpaid allocated to farmers to use, with welfare; use of land is only limited to the farmers to build houses and other facilities; the right to use the circulation (alone may not transfer, transfer or lease), but the law of sell, rental housing to the homestead right of use passive transfer does not prohibit, but not approved the transfer of homestead application; for the homestead housing object, law makes no restrictions.^[27]On the contrary, the control over the nature of property, the housing of small property right and controversial in recent years intense properties more similar. The small property right room, refers to the construction of collective land and the State prohibits such as commercial housing as the normal flow of housing. It is a noun and the rise of the commercial housing development boom, is a real estate commercial housing, although it is a legal fact, but not a legal concept, rural houses in the quiescent state, or only in the internal flow of collective farmers, could never produce the small property right room said. It is certainly in the state of the real estate transaction attitude, while the rural collective or individual self denial in the sale of housing, the housing of small property right will appear a word. Commercial housing and the housing of small property right of land is land for construction, but the former construction of the state-owned land, the latter in the collective construction land, according to the "property law", the former is the complete property right, can be normal use, possession, income, punishment, and the latter, is not normal to the transfer, income, punishment. The author believes that there is a reasonable, the rise of the small property right room, possession of days, geography, and then, day: in the commercial housing development like a raging fire, high profits, real estate transaction way of producing low technology, land policy is not rigorous; location: the small property right house building land in urban and rural areas, is not divided, the combination of urban and rural areas, city near, industrial and agricultural area adjacent points (such as simple areas between the farmer in the area of real estate transaction, does not produce the scale of construction and high volume transaction); and the price and labor: commercial housing high dynamic gap of income the real estate industry, the long-term high profits and other industry's long-term downturn, state-owned and collective all two land properties in the property should be equal and the inequality in the legal dispute, the contradiction between high corruption and people's existence commodity housing development in the area of reality to hate, land finance in countries rich and people have therefore produces long-term debt pressure, all of these, careful treatment to people in the purchase of small property room disregard for the law and the government behavior has its own consequences. As long as the resources he bring higher returns than their "own" the right to use, always in one way or another, evolution is the transfer right, and through the transfer to obtain higher returns.^[28]Therefore, the small property right room, has its historical inevitability. The housing of small property right risk be known to all, but not Every order is executed without fail., contains the buyers a on the future situation of self judgment and distrust of legal policy.

The reason of small property right dispute, that the state land management functions and land owner function confusion, countries use management function and farmers for profit, to seek the interests of owners of property rights; farmers, rural collective ownership has legislative loopholes, lead farmers without law of right to use land and to safeguard their own rights and interests. The government through the establishment of land development policy, the level of development of land market monopoly, must turn rural land into state-owned land, the national land transfer or sold to the land use. Although the state has established the level of the land market monopoly, but in fact the exercise of the right to the use of land transfer power mechanism is the city (county) people's government level, thus achieve land ownership and land market level of income is the local people's government. Because local governments through land acquisition land market gains, rejected the legitimacy of farmers land development.^[29]

In view of this case, the government can collect He Pu Zhen He Pu Zhen Huang Jin Tan Cun collective ownership of land and the examination and approval by the county government to the homestead in the name of block to the society should be based on the 1982 auction, "Rural Housing Land Management Ordinance", "Zhejiang Province in 1983 of urban and rural construction land management measures" for, but no matter what how to operate, we can only infer the behavior from the fact that, as there is no strictly in accordance with the provisions, the author doubts.^[30]But there was no commercial housing said, since there is no more the small property right house ", the collective spontaneous land policy, the agent said: by the development zone policy effects from Guangdong's. So, compared with the commercial housing development, is a collective land housing (to) walk in the front of the state-owned land. As for the small property rights illegal and commercial housing legalization, just because of the legal and policy settings are different and produce different results, it is not illegal and commercial housing born small property room born legitimate, in the interests of the game, interests and guarantee on how to really take into account all the people's justice, fairness it is the right way.^[31]

Four,            Future legal analysis of establishment of rural housing transactions

In the case of a house, and a prohibition of the transfer of rural, rural housing of small property right and other related regulations are associated, by comparing the case with some perspectives, namely can feel the insufficiency of the existing laws and policies in the rural housing provisions of the state, from the case and the management of land in the historical evolution,^[32]And the 2007 law on the relevant provisions of the homestead right of use, put forward some suggestions on the current situation of rural house circulation:

(a), for individual farmers built from the sale of real estate transaction, the transaction contract validity of approval, the housing area is the collective property, but the property buyers can use life time housing the right to use state-owned land for years, after the state of the collective land way more mature after trying to handle. This is a matter of expediency, but it helps to maintain the integrity of the community, to avoid social moral deficiency of using legal policy and further decay (now requires that the contract avoided a party, many farmers party for real property value for customer service; on the contrary, if house prices fall, will lead to property buyers request on the grounds that contract law and policy. Both sides signed the contract when take an oath devoutly in front of the interests, honesty lost, such as national condone such behavior, it leads to corruption risk people's moral); two helps maintain social stability (as mentioned before, farmers in the sale of property, will have no alternative against one's will or have an circumstances for sale; the buyers for legal policy risk to buy more things, is also required to), to avoid the contract invalid affirmation to bring significant change suddenly one family; three for the use right of state-owned land in life, if not specified buyers use right life, may lead to the right to use in an unstable state.

(two), for the small property right room mass development, transaction, which is in violation of the provisions of the state on land management, but given its wide range, conflicts of interest, suggestions will be real estate occupied land to the state after the transaction, pay the land use fee, issued warrants, recognize the legitimacy of. With the construction of housing on the housing and the homestead on the trading rules of collective construction, should be different, homestead housing transfer, the transaction is subject to many individual farmers and buyers of housing; land circulation of collective construction, buyers side relates to many people, the sale of a party is the collective.^[33]Problems in collective land there is the small property right land collective construction construction, which covers a large, involving a wide range of social existence, the deeper reason, easy to sharpen the contradictions, the interests of the overwhelming majority of citizens is, it should be solved properly.

(three), both city residents or farmers, almost to a one house (a real) as the principle, multi room houses for exception (charge more houses many housing high taxes). It accords with the present situation of land resources in China is extremely scarce; two may contribute to the solution of many years hoping to solve but not solve the land finance and real estate bubble; regression three helps the government. The reason mentioned earlier, this does not repeat.

(four), to solve the state-owned land and collective land in the property of inequality, straighten out the relationship between the city and countryside, allowing the collective construction land for commercial housing development. The state-owned land and collective ownership in legal nature are ownership, man-made to distinguish and impose collective land only to the state to the development of real estate, is a kind of technique of country with civilian dispute benefit, because from a legal not convincing, it led to the so-called "small property room" development boom, led to have order status can't stop, can't stop.^[34]

Five,            Conclusion

This decision is not difficult, the problem is the effective judgment after trading warrants for problems, this is the consequence of the judicial, administrative intervention economy too much, but how to solve it as soon as possible. This controversy is suspended, as far as I know, in judicial organs and government consultation and communication, Xiangshan county government intends to collective land property disputes housing occupied land and similar disputes on property occupied (about two hundred households) together into state-owned land property, the court to make the case. The author thinks, this is one of the solutions to the housing of small property right problems left over by history, the many contradictions can be used for reference to resolve many disputes, the future, stability and interests of both transactions, maintain social moral integrity, has a positive significance.^[35]  

 

   

Notes.

[1]The case has the certain representation, similar to the case of Xiangshan County, he Pu Zhen (South Island) has nearly 100 households, most of them spent his life savings, is only the property, so the trial results, a large number of parties involved, involving the interests of great interests.

 [2]The plaintiff in civil indictment content.

[3]In this way sold plots have hundreds, according to the mayor is responsible for the sale of land expropriation, inquiry, on the part of data verification, to now similar property verification, learned that the purchase of all the rural household staff South Tajima crane Pu, fan Aoxiang, also has the city accounts, including Taizhou. And returned to Taiwan, also proved to have no identity at the time of purchase, geographical restrictions, this is also in line with the prevailing laws, regulations.

[4]For tax avoidance, the two sides signed another contract provisions is Yang, transaction price for 15000 yuan, there are two original contract.

[5]Here the plaintiff that the policy is unknown. With the issued since 1999 policy provisions, including the "notice on strengthening the management of land transfer is prohibited land speculation" (issued [1999]39), "on deepening reform to lattice land management decision" (of the [2004]28), "on the strengthening of rural homestead management advice" (made of [2004]234 number) and other related provisions, throughout the land, housing management departments for the transfer of housing trafficking not original, the defendant, for policy not only refers to a specific policy.

[6](2008) as people early word no. 1117th "civil mediation book" have detailed records. 2009, the plaintiff Zhu and three Geyin torts (interference) dispute case, the people's Court of Xiangshan County in April 25, 2008 to.

[7]In view of the local judicial is not rigorous, the case before the court trial judges have more clearly inform the defendant in this case it will bear the possibility of losing the results, and suggested that the defendant in the trial of former countersued in order to ensure the economic compensation in the judgment, the defendant the plaintiff's original housing transactions after the agreement is invalid, and the lawyer like this prepare and recommend to the valuation of the dispute. The general situation to anyone if the defendant, will hard to calm down and be indignant. According to the words and the support for the law, legal and moral integrity, so that the contradiction, will make people lose confidence in the law and then generates suspicion to social justice.

[8]The author thinks the accused without risk of losing reason is sufficiently clear, but the judiciary often because of similar understanding original told some confusing problems like and lose direction. This problem has no clear judicial interpretation, but also caused the losing their ability to think because of administrative intervention in judicial practice, not only resulted in reduced the social good faith, make law is disgraceful.

[9]In accordance with the provisions of city population can use the collective land to build residential, combined with earlier today and policies related to land use, the collective land by law at the time and had no of the farmer trade ban, in this case, between the parties to the transaction should be legal, such as compared to push that, with bright light like weightlifting more appropriate.

[10]Such as land and capital [2004]234 "on the strengthening of rural homestead management opinions" proposed strictly homestead application conditions, resolutely implement the "law of a one house". One rural household can own a house, the area shall not be more than the province (area, city) standards. All localities should be in combination with the local actual situation, formulate a unified rural homestead area standards and land conditions apply. Do not meet the conditions for application shall not be approved homestead. The countryside will sell original housing, rental or gift others, to apply for the fund, shall not be approved.

[11]Early in 1982 the State Council issued the "including rural housing land management Ordinance", "1963 the CPC Central Committee on members of homestead make some additional advice notice", in 1962 the Central Committee of the Communist Party "rules of work of rural people commune", "the draft amendment of 1954 1950 constitution", "land reform law" with the land related important file.

[12]In 1982 the State Council issued the "rural housing land management regulations" provisions of article third, in our country, to cherish and the rational use of every inch of land is our policy. Rural housing must be unified planning, land conservation, and can use the land, shall not occupy arable land; who can make use of sloping land, soil, shall not occupy ground, well, in situ transformation garden; usually, should make full use of the original homestead and village of vacant land. The provisions of article ninth, members of housing land, by the provincial people's government according to the mountain, hills, plains, pastoral area, city, town effect in different situations, respectively for limit, people's governments at the county level according to the provisions of the provincial people's government land quota, combined with the local per capita arable land, household sideline production, national customs, family planning, etc. homestead area standards, regulations. "On the 1963 central members homestead question some supplementary provisions of the notice" third, four,Also have similar provisions.

[13]In the way of [1999]39, "the general office of the State Council on strengthening the management of land transfer is prohibited land speculation notice", in order to prevent new "speculation geothermal", maintain rural stability, protect the interests of farmers, strict control of urban and rural construction land, and resolutely put an end to the illegal occupation of Land Non-agricultural Construction; strengthen the management of rural collective land transfer, collective farmers against the illegal occupation of land for real estate development; comprehensive cleaning up the land transfer, land speculation, and resolutely investigate and deal with illegal transfer of land use rights and the collective land illegal transactions and six measures, the paper is due to prevent already signs of another round of speculation geothermal and hair, for the first time put forward the "farmers residential shall not be sold to city residents, city residents may not approve the occupation of peasant collective land to build houses, the relevant departments shall be illegal construction and purchase of residential land use permits issued and real estate certificates." Since then, the [2004]28 under the State Council, "on deepening the reform of strict land management decision" proposed "to strengthen the rural homestead management, prohibited the purchase of urban residents in the rural villages."

[14]The homestead is associated with residential farmers, the farmers involved in personal property rights, such as inheritance, gift, purchase and other reasons to obtain multiple dwellings, such as hard as a house rules and deprivation, it is difficult to make in the legal and moral rational explanation. The laws and regulations just put forward the opinion, but not to solve specific problems make good. Because the city of urbanization, hollow village problem is becoming more and more serious fact, presumably countries will make some measures to. Because of uneven economic development throughout the country, all solutions can also have large difference.

[15]Wrong understanding of court, both facts, there are legal. One is for the case do not understand completely, the law study is not deep and; one is the intentional. Deliberately, some lawyers as a strategy, in some professional strong case can sometimes play slip by results.

[16]I agree with the law set up a house, but do not agree with no rural housing transactions: both advocates of real equality of farmers, or self punishment will respect, the law shall be recognized in the trading behavior of voluntary, equality condition. The abnormal development of commercial housing in recent years, the author has even agreed to commercial housing problem can learn from "a house" and the provisions of "a one bedroom". Because, the living needs of people, is a basic condition, but not excessive, accumulated over the years the real estate bubble, not as the rumors said speculation which caused by greedy behavior, but with the existing land policy is unreasonable and the local government and real estate developers combination. A one room of the gauge, can let more social wealth for innovation, to ensure the social welfare, highly corrupt and not cultivated land has been disguised misappropriation, not official, business caused by the combination of. Of course, a real exception, is to have the ability, the conditions of the people, the high policy of the two suite, a few people can solve the demand, two can solve social welfare issues, the basic rules and a one room, also does not conflict.

[17]In this case the original complaint "by the plaintiff accused a registered permanent residence to the crane Pu Zhen Crane Village, ready for the sale of the village of housing registration" is the reflection of the reality of this judicial state. ,

[18]Such as the Shandong Provincial Higher People's court enacted the civil trial "seminar" (lugao Law No. [2005]201) regulations, effect of rural private housing sales contracts shall be null and void to the principle, in order to identify effective for exceptions. Only the parties to the sale of housing are members of a collective economic organization, can be found valid contract. "The Shandong Provincial Higher People's court in 2008 the civil trial work conference summary" (lugao Law No. [2008]243) regulations, in addition to the collective economic organizations of the village to buy the members of the collective economic organization of the homestead and house, in principle should also be recognized as invalid. And the Shanghai Municipal Higher People's court "on hearing the rural homestead housing sale contract dispute cases the principle ideas" (Shanghai high Famin one (2004) No. 4), the subject is not divided into trading, made the following provisions, as occurred in the township (town) between the members of the collective economic organizations within the scope of the sale of rural housing, the housing sales contracts deemed valid. For the sale of housing to the township (town) people outside, if obtaining the approval of relevant departments and organizations, can be found valid contract. For the sale of housing to the township (town) people outside, without the approval of relevant departments and organizations, if the contract is not the actual performance or the purchase is not the actual living use of the housing, the contract shall be invalid. For the sale of housing to the township (town) people outside, without the approval of relevant departments and organizations, if the contract has been performed, and buyers who have lived in the house, not to comment on the validity of the contract, the actual treatment should be based on respect for the status quo, keep the stability principle, recognize the status quo on housing purchase and the right to continue to occupy and use the building, residential.

[19]For the same group of real estate transaction contract, the actual trials are not deemed to be valid, such as Cixi City People's court 2007 Tzu Chi people at the beginning of characters 3599th "civil judgments", the party is not to sell the house in the sale of housing, the provisions of the contract in violation of the "land management law" article sixty-second "one household one house", the transaction contract is null and void. However, this decision, I think it is the "stretch of a house": the law does not expressly prohibit real estate transaction within the collective, also not the "one of a house" judicial interpretation, the judge to "a house" is the guarantee that the sale because of the sale of property and not have any other property that a decision null and void the contract, easy to cause the lack of social credit, two did not respect the true will of trading parties at the time of the transaction, the three do not meet the Cixi City as a market economy status is very developed in the land of.

[20]The premise is the traditional homestead built housing transactions occurred in today, rather than in the case of property transactions, apparently does not belong to.

[21]Dai Mengyong: "the judicial regulation" of urban residents buying rural housing disputes,:Http://www.360doc.com/content/11/0111/18/359978_85800908.shtml. A detailed regulations related to the culture of the urban residents purchase housing in rural areas.

  [22]Liu Shuhe: "the theory and practice of" the rural old-age security system, China SocietySciencePress, 2005 edition, page twenty-sixth

 [23]Qin Hui: China "land reform" crossroads,:Http://view.news.qq.com/a/20081007/000009.htm.

[24]The land security theory, expert opinion is not consistent, the author does not agree with the views of the said land security, land security on social security and land the government functions be confused as human nature condition guarantee.

[25]See note[2].

[26]The land itself, construction land, but from the view of the existing legal policy, land is not included in the collective construction land use rights.

[27]Song Zhihong, "the collective construction land use rights transfer legal system research", Renmin University of China press, published 2010, 163rd pages.

 [28]Wang Ying, Yang Xu: "small property room" on the way out, research, construction of new countryside legal China Law Press, 350th pages.

 [29]Cui Wenxing, "China farmland property rights system theory", Law Press, published 2009, 153 pages.

 [30]The author to the land management department to verify the relevant approval documents fail, only about the general condition from the time of handling the land approval procedures for staff in. The land source is illegal can make nothing of it, but when the person in charge of matters in the end things when land approval are subject to criminal penalties for the givens.

[31]In June 18, 2007, the Ministry of Construction issued "about the risks that" to purchase new commercial housing, the city residents not to buy land in the collective construction of housing. December 30, 2007 issued [2007]71 "Office of the State Council on the strict implementation of the rural collective construction land legal policy notice", the rural residential only allocated to the village, the villagers, urban residents do not have to buy house sites in rural areas, farmers residential or "small property room". Even so, but did not substantially affect the small property sales and purchase, but caused by experts and scholars and the citizens of the small property right legal and illegal big discussion on the network, the support and opposition, with the interest distribution related, but rational said, holding the small property right house legal views., far more than the small property rights illegal point of view, this can not but arouse people's reflection on the. According to ShengHong"First house into a" problem ", then to" solve "the " (http://aisixiang.com/data/41668.html): 1998 revised "Regulations for forty-first of urban residents in the rural collective land to housing land management law" is deleted, but in 1998 of the "land management law" revision, only after the National People's Congress Standing Committee vote. But Congress has no less than 170 members, current situation of the National People's Congress and its Standing Committee to represent them without a view, rural collective, is more administrative officials.

 [32]In 1950 June promulgated the "land reform law" put forward the goal is: to abolish the ownership of feudal landlord class exploitation of land, the realization of farmer land ownership, to the liberation of the rural productive forces, the development of agricultural production, pave the way for a new Chinese industrialization. "In the winter of 1952, except Taiwan province and ethnic minority areas, national land reform basically completed, the three hundred million peasants with no or little land received about 700000000 acres of land and other production data " (Deng Xiaoping "anthology", people's publishing house, 1993 edition, volume third, 399 pages. The early implementation of farmers' land, all Chinese new business, but because of the agricultural cooperative movement, to 1962 "rural people's communes regulations (Revised Draft)" so far, the system of land ownership and collective ownership thoroughly into the soil and to. In 2007 the "property law" the thirteenth chapter "the homestead right of use to a chapter, provisions of the land use right of people to enjoy the right to occupy and use the land owned by the collective, have the right to use the land for the construction of residential and ancillary facilities. The acquisition of land use right, exercise and transfer, the law and relevant state regulations apply to the land administration law. Therefore, the legal treatment of homestead use right by the induced rules, namely "land management law and other applicable laws and the relevant provisions of the state".

 [33]According to Cui Wenxing said: there is a conflict of collective land ownership and farmers' personal rights, their performance in a single individual farmers in the collective member rights and collective rights conflict, individual farmers of the right to the contracted management of land and collective land ownership conflicts. And the proposed reconstruction of the collective land ownership, collective farmers in the reconstruction of individual members of the right advice. See Cui Wen Xing "Chinese farmland property rights system theory", Law Press, published in 2009, 164-181.

[34]In addition to[5]The policy stipulated by the state, and subsequently issued a series of policy documents, such as the "risk on the purchase of new commercial housing tips" (Ministry of construction in June 18, 2007), "on the strict implementation of the rural collective construction land laws and policies of the notice" (Guo Ban Fa [No. 2007]71), "CPC Central Committee on promoting the rural reform to develop certain major issue decision" (October 12, 2008), "urban and rural construction land linked to the pilot management approach" (made [2008] 138) (March 2, 2009), but it did not effectively prevent citizens to buy a small property room enthusiasm, also not effective situation hindered local investment and other abuse the land.

[35]In this space, I cannot hope to clear views through this to all the problems all of their own, but hope that the transfer of rural housing, a house, a small property room, level land development in a variety of arguments in this case to be positive, which reflect some viewpoints. Of course, the author also indirectly or directly expressed their views, although only in the circumstances of the case, but from an instance, also have certain representative.