A case:The villagers Li Mou has the homestead, and then made a homestead. Li went with fellow Wang signed a contract of assignment of land use right, Li Mou of this land to the transfer price of 50000 yuan to Wang Mou, Wang Mou will pay the money to the lee. When Wang started building, was neighbour Zhang stop, causing Wang not building. Wang Mou to infringement on the grounds, the neighbor Zhang to the court, the request to stop infringement, eliminate the obstruction. Neighbor Zhang to Wang shall not be entitled to the homestead right of use on the grounds, to dismiss Lee litigation request.

Evaluation opinion:

The legal issues involved in the case:

 1, Lee could obtain the land use right. "Land management law" sixty-second article: "one rural household can own a house, other land area shall not exceed the provisions of the province, autonomous region, or municipality directly under the central government standards. Rural villagers to build residential township (town), shall comply with the overall land use planning, and to use the original and the village of vacant houses. The use of land for building houses, by the township (town) people's government audit, approved by the people's government at the county level; wherein, relates to the occupation of agricultural land, go through the formalities for approval in accordance with the provisions of article forty-fourth. Villagers sell, rental housing, and then apply for homestead, shall not be approved." According to the legal provisions, Lee in has the homestead situation, obviously can not achieve the homestead right of use.

2Effect of transfer contract, Lee and Wang the homestead right of use. According to the "contract law" provisions of article fifty-second, the violation of mandatory rules of law, administrative regulations of the contract as invalid contract. Looking from this case, the land use right transfer contract for violation of the land administrative law as invalid contract.

3King, a request can be supported. For Li and Wang Mou of land use right transfer contract is invalid contract, Wang can not get the right to use, then Wang housing equity is not protected by law. Obviously, the neighbor Zhang can not constitute infringement of wang. Therefore, the people's court shall dismiss the claims of wang. At the same time, it should also be issued judicial proposals to the land management department, as reflected in the case of the situation to investigate treatment.

Two, the countryside homestead right of use:

1The ownership, land to peasants' collective. "The constitution" stipulates that the tenth:"...... House sites and private plots, remain mountain oneself, also belong to the collective." Therefore, ownership attribute homestead, is to use the form of fundamental law fixed for the collective. "Land management law" eighth paragraph second:"...... House sites and private plots, hilly, belongs to peasants' collective ownership." It is further clear the land belongs to the collective of farmers.

Subject of the right of use 2, homestead is the collective economic organizations.

3In principle, the use right of homestead shall not sell, transfer or mortgage.Meet the following conditions at the same time can accompany the homestead building transfer: transferring the right to use the transfer of the use right of homestead, homestead built with houses and other buildings ownership of land; two, the transferee must be members of the collective economic organization.

In 4, the homestead right of use of welfare. Farmers get the homestead right of use basically is free. So the homestead right of use to the members of the collective economic organizations to care and preferential, with welfare.

Case two:The plaintiff and the defendant Huang Zhihui Zhang Jianqiang respectively in 2002 and 2003, the purchase of land each piece, the residential status in Qing Shan Zhen Huan Cheng Lu, two pieces of land are separated by 20 meters, 8 meters wide, 10 meters long, covering an area of 80 square meters, the purchase price of 40000 yuan. In 2004 March, the plaintiff and the defendant Zhang Jianqiang Huang Zhihui were made of collective land for Construction issued Donghong City Land Bureau of land use permits, on February 8, 2005, the plaintiff and the defendant Zhang Jianqiang Huang Zhihui, the two sides signed a "housing swap agreement", the agreement content is: "for the convenience of life, the two sides give and take, the cooperation principle, nail, B after friendly consultations, the parties decided to swap adjustment homestead position (from north to south of Party A, B from the south to North), held by both the land use permit the size invariant." However, the exchange after the signing of the agreement, Zhang Jianqiang and Huang Zhihui are not go to Rainbow City Land Bureau for registration of land use rights. October 8, 2005, the defendant Huang Zhihui a two lattice three layer height, construction area of 300 square meters of buildings built in the Zhang Jianqiang homestead exchange position. The plaintiff Zhang Jianqiang listen to others to say (exchange ago) homestead from good feng shui the original position, and Huang Zhihui exchange homestead position himself a. Therefore, go back to the original homestead requirements change. Huang Zhihui in the house has been built, to re position replacement of homestead with 30 million on and signed a "Protocol" homestead exchange the position on the grounds, refused to exchange. March 10, 2006, the plaintiff Zhang Jianqiang to Rainbow City People's court homestead infringement proceedings, request the people's court to order the defendant Huang Zhihui to remove the obstacles, withdraw from the occupied 80 square meters of land, restoration to the original state; in the trial, the plaintiff Zhang Jianqiang change the litigation request, requests the defendant Huang Zhihui for the purchase of 40000 yuan and interest. Rainbow City People's court think, the defendant, for exchanging homestead, the two sides have made a collective construction land use permits, both legally owned land use right. The original, accused both sides agreed to make their own legal homestead exchange, is the original, the defendant to dispose of their civil rights. But the original, accused both sides should follow the "management law" land of people's Republic of China, to the land management department for land title change procedures. The defendant in no legal access to the plaintiff all the homestead right of use cases, the plaintiff legally own homestead building, the use right of the plaintiff's damages the homestead, the plaintiff requested the defendant to compensate 40000 yuan of the purchase request is reasonable, and should be supported. Accordingly, Rainbow City People's court in accordance with relevant laws and regulations judgment: defendant Huang Zhihui in this decision within fifteen days of purchase for 40000 yuan and interest to the plaintiff Zhang Jianqiang takes legal effect.

Evaluation opinion:
   First of all, the civil liability of Rainbow City People's court decree the defendant Huang Zhihui shall bear tort behavior, because in this case the defendant Zhi Hui Huang in civil activities, is not appropriate to exercise their civil rights, violation of a series of national law, administrative regulations and civil law, there are many fault.

(a) this case to both parties Qing Huan Cheng Lu Shan Zhen homestead in Rainbow City, are paid by the parties to buy, and for the collective land for construction of legal land use permit, shall be protected by the laws of the state; however, whether state-owned land and collective land, state or collective, are based on the land needs and the status of land resource, paid or unpaid allocated to the transfer of land, land is specified legal persons, other organizations, individual citizens, land may not be in the transfer, embezzlement, sale. "Management approach" land of people's Republic of China stipulates that the twelfth: "to change the land ownership and use, shall go through the formalities of registration of changes to land." According to the above provisions, although the original, the defendant signed the "house parties swap agreement", but this is the parties of private action, Zhang Jianqiang and Huang Zhihui agreed to swap land position in the Rainbow City Land Bureau, before the collective land for construction of new land use permits issued to the parties, neither party shall have the right to use each other legally owned land, so, the building built Huang Chi Hui arbitrarily Zhang Jianqiang homestead, both in violation of mandatory national land management laws and regulations, but also against the Zhang Jianqiang legal homestead use right.

(two) the plaintiff and the defendant Huang Zhihui Zhang Jianqiang in February 8, 2005 signed the "housing swap agreement", is actually a kind of transfer behavior, is not allowed for prohibition of administrative regulations. "Management approach" the PRC Land twelfth stipulates: "in accordance with the change in land ownership and use, shall go through the formalities of registration of changes to land." "Contract law" of the people's Republic of China article forty-fourth paragraph second also clearly stipulates: "the law, administrative rules and regulations shall apply for approval, registration as, in accordance with the provisions of." Both the party only signed a trade agreement, although the agreement is the true meaning of the parties, but they are not mandatory in accordance with the administrative regulations, the requirements of the law, the registration of alteration related, so the exchange agreement is not binding on the parties, therefore, the defendant Huang Zhihui boards the plaintiff Zhang Jianqiang homestead the ground buildings, illegal behavior is a violation of the national implementation of the administrative activities of land resources, and is deprived of the plaintiff Zhang Jianqiang cannot exercise using the homestead's legitimate rights and interests of the tort behavior, of course, in this case, the plaintiff has fault, the court shall consider this.