UM E-Theses Collection (澳門大學電子學位論文庫)
Title
宅基地使用權流轉制度的法律分析 =The analysis of circulation of right to use house sites
English Abstract
In the legal system of rural land in our country, the system of the right to use house sites plays an important role. The rural house sites are an important property of the peasants, which is related to the vital interests of the peasants. Due to the special historical reasons, the rural house sites have been given a strong administrative color; people pay more attention to the social security function of the house sites and neglect its important property. By 2007, "property law of People’s Republic of China" sets up a special chapter to the provisions of the usufructuary right. However, the circulation land use rights on the house sites, or apply to the land management law and other laws and regulations. In our current legal framework, the rural house sites use right circulation system still is not perfected, and appears more and more land disputes. The courts face that how to deal with the land use right circulation disputes. Combining with the previous research results, the author uses the method of combining theory with practice, analyzes and discusses the related problems of the rural house sites use right circulation system in our country. This paper, apart from the introduction and conclusion, mainly consists of the following four parts: The first part: the historical evolution of the system of the right to use house sites. First of all, combining with what I learned, the author will has an overview of the concept of the right to use house sites, and characteristics of right. The essay will sort out the theory of the legal nature of house sites, analysis the characteristics of right to use house sites. Secondly, the essay will analyze the China's legislative provisions of the circulation of right to use house sites in different periods of China’s history, sum up the characteristics of the circulation of right to use house sites in various historical stages. The second part: the theory of the transfer of the right to use house sites. First of all, the article sorts out the theoretical disputes of the rural residential land can transfer or not, and compares and analyzes these three different theories. The third part: the Judicial Dilemma of the circulation of the right to use house 我国宅基地使用权流转制度的法律分析——以解释论为中心 4 sites. To begin with, the article will analyze the attitude of the court for the circulation of right to use house sites, sum up the characteristics of such cases around the court. Moreover, the article will start from the specific case, analyze the court's option and the legal basis for the court's judgment, and discuss the problem of court’s judgment. The fourth part: the construction of the circulation system of the right to use house sites. This part will focus on how to improve the circulation system of the right to use house sites, and put forward the author's views and opinions. First, improve the usufructuary rights of the right to use house sites, which is a prerequisite for the circulation of the right to use house sites. Besides, the author will put forward her ideas about the circulation of the right to use house sites, including the theoretical basis of the house sites circulation, circulation conditions, the design of the circulation of process, and other aspects of the content. Finally, in the framework of the system, the article will discuss how to improve the supporting facilities of the circulation system of the right to use rural house sites.
Chinese Abstract
From individual interests, national interests, here come diffuse interests. This is a category covering the underrepresented interests of groups of people who lack access to justice. In legal practices, this type of interests could be found in areas of environment pollutions, food safety, consumers’ rights and discriminations towards social minorities. With the rocketing development of society, the allocation of interests between different groups is way more diversifying and complicating than the old time. A guarantee of legal protection became essential to all, which made the mode of Class Action prevailing in a world scale. Class Action is by far the most economic and efficient litigation process of solving the cases of violations of large groups’ interests. In the meantime, it’s still in a quite complicated and struggling situation. One of the most controversial points among the scholars is how to qualify the plaintiff. The difficulty is caused by decentralization and massiveness of the interested parties. Besides, the level of damage for each one of them may be too delight to start a lawsuit, which is to say, even if you’ve won the case, the compensation may not cover the court’s cost. In order to avoid a second damage of personal interests, people are inclined to stay in silence. However, a Class Action that represents a large group of people has a great influence to the whole society and brings changes to unreasonable legislations and rule-making processes. Therefore, to ensure the development of Class Action, we must find its adequate plaintiff. In the United States, where the system of Class Action is relatively developed, NGOs and attorneys are the most common legal representatives for involved groups. To motivate more lawyers using their experiences and knowledge to help people, the court allow them to take the Contingent Fee, which gets criticized very often for the lawyers have earned all the money from their clients. But without doubt, this is also a good way to ensure the minority groups get helps from professional lawyers. On the other hand, even though Class Action is not yet a regular process in China, it starts to raise more and more attention. We realized that, a modern lawsuit mechanism is needed to deal with the increasing violations of public interests. Due to different legal systems, China can’t copy the American way directly by using the Contingent Fee system to motivate lawyers. However, in our history, there was a time when public procurators were representatives in the cases of large scale. Chinese Civil Procedure Law 2012 mentioned that a numerous party could recommend a representative. This change made great progress for the development of Class Action in Chinese litigation. And from 2015, 13 areas in China are set to be the experimental areas where procuratorial organs could function as plaintiff in the cases of Class Action.
Issue Date
2016
Author
陳少梅
Faculty
Faculty of Law
Degree
LL.M.
Subject
Land use -- Law and legislation -- China
土地利用 -- 法規 -- 中國
Residential real estate -- Law and legislation -- China
居住類房地產 -- 法規 -- 中國
Juridical Sciences (Chinese Language) -- Faculty of Law
中文法學 -- 法學院
Supervisor
稅兵
Library URL
b3588842
Files In This Item:
Full-text (Intranet only)
Location
1/F Zone C
Supervisor
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