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A Study on the Legalization of the Qualification Right in the “Separation of Three Rights” of Rural Homesteads in China

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2020, (28), pp.43-70
  • DOI : 10.31839/ibt.2020.01.28.43
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : December 17, 2019
  • Accepted : January 20, 2020
  • Published : January 31, 2020

LI, YUANYU 1

1China Research Center for Agroeconomy-Related Laws and Innovations of Southwest University of Politi

Accredited

ABSTRACT

The “separation of three rights” reform of rural homesteads in China was proposed for two reasons. On the one hand, the right system of homesteads needs to be improved; on the other hand, changes have been recorded in respect to the environment in which the homestead system operates. The corresponding expression of the newly proposed qualification right cannot be found in legal texts, which poses a reform dilemma that needs to be resolved. In terms of the function of the qualification right, a view shared by most researchers is that farmers’ basic living interests are realized through it. However, in regard to the realization of the qualification right, different theories have been developed, including “the theory of surplus right”, “the theory of membership right”, “the theory of independent right”. In this light, the path of the legalization is diversified. Based on the basic logic in which it was created, the qualification right should be a new and comprehensive right. It overlaps with some contents found in the membership right and the use right, yet differing considerably from them. Due to its nature, the following suggestions are put forward: the qualification right be named independently; its content be established in a reasonable way; the conditions for obtaining it be clarified; the circumstances in which it extinguishes be investigated; its registration be carried out; the methods for its relief be explored.

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