小产权房问题的法律思考

发布时间：2018-08-01 17:10

【摘要】： “小产权房”是房地产供求关系严重失衡,普通商品房供不应求、奇货可居情况下,产生的与普通商品房具有相似使用价值,但在法律上具有瑕疵,购房者不享有完整物权权能的房屋。本文中,“小产权房”专指在农村集体所有土地上建设,未缴纳国有建设用地有偿使用费(土地出让金),无法取得国家有权部门颁发的权利证书,具有商品房功能的房屋。“小产权房”问题的出现,是现行土地城乡二元结构和法律对农村地权不合理限制造成的,与法律规定不完善、职权部门疏于监管和农民利益被忽视等问题息息相关。小产权房虽然突破了法律限制,成为“违章建筑”,却又不可遏制地遍地开花,走入“禁不住、管不了”的两难境地,正揭露出我国现行农村集体土地制度的弊端。虽然《宪法》赋予了农村集体与国家平等的土地所有权,但长久以来,农村土地资产处置农民集体作不了主,所有权人无法享受所有权权能,农村土地不能合法流转,导致农村与城市同地不同权、不同价的不平等现象。本文以“小产权房”为切入点,系统分析小产权房的概念、特点、分类、产生原因和发展现状,从法律角度思考我国现行农村土地制度存在的问题及改革建议。现行农村集体土地制度未按照产权的基本特征和规律进行合理安排,存在产权主体缺失、产权内容模糊、激励功能不明显、有很大外部性等突出问题,致使农村土地实际上丧失了作为不动产的产权经济功能,导致“农民真苦、农村真穷、农业真危险”的“三农”困局。前两章通过历史和现状考察,简述小产权房问题及农村土地制度的变迁,探讨小产权房涉及利益群体的法律保障。后两章透过小产权房分析农村土地制度改革,尤其是土地征收制度、城乡一体化和产权经济改革等方面的问题,并对小产权房合法化进行思考,综合分析小产权房合法化的利弊和途径,提出有步骤有计划地推进小产权房合法化和城乡一体化改革,逐步探索建立农村集体土地流转制度,打破政府对土地供应市场的垄断,促进城乡均衡发展,让城市化和经济发展真正惠及农村、农民。
[Abstract]:"small property right" is a serious imbalance between the supply and demand of real estate, the supply of ordinary commercial housing exceeds the supply, the rare goods can live in the situation, the produce and ordinary commercial housing has similar use value, but has the flaw in the law. A house that does not have the right to complete real right. In this article, "small property right house" refers to the house that is built on the rural collective-owned land without paying the paid use fee of the state-owned construction land (land transfer fee), and can not obtain the right certificate issued by the state authority department, and has the function of commercial housing. The emergence of the problem of "small property right" is caused by the current dual structure of urban and rural land and unreasonable restriction of rural land rights by law, which is closely related to the imperfection of legal provisions, the neglect of supervision by competent departments and the neglect of farmers' interests. Although the small property right house has broken through the legal restriction and become a "illegal building", it cannot be stopped from blooming everywhere, and it has entered the dilemma of "cannot help but manage", which is exposing the malpractice of the present rural collective land system in our country. Although the Constitution gives the rural collective equal land ownership with the state, for a long time, the rural land assets disposal farmers' collective can not be the master, the owner can not enjoy the ownership power, and the rural land can not be legally transferred. It leads to the inequality of different rights and different prices in rural areas and cities. In this paper, the concept, characteristics, classification, causes and present situation of the small property house are systematically analyzed, and the problems existing in the current rural land system of our country and the reform suggestions are considered from the legal point of view. The present rural collective land system has not been arranged reasonably according to the basic characteristics and laws of property rights. There are some outstanding problems, such as the absence of property rights, the vague content of property rights, the indistinct incentive functions, the great externalities, etc. As a result, the rural land has actually lost its economic function of property right as real estate, which leads to the "three rural difficulties" of "farmers are really bitter, rural areas are really poor, and agriculture is really dangerous". The first two chapters, through historical and present investigation, briefly describe the problem of small property right and the change of rural land system, and probe into the legal protection of small property house involving interest groups. The last two chapters analyze the reform of the rural land system, especially the land expropriation system, the integration of urban and rural areas and the economic reform of property rights through the analysis of the small property right house, and consider the legalization of the small property right house. This paper comprehensively analyzes the advantages and disadvantages and approaches of legalization of small property houses, and puts forward that the legalization of small property houses and the reform of urban and rural integration should be carried out step by step, and the system of collective land circulation in rural areas should be gradually explored to break the monopoly of the government on the land supply market. Promote the balanced development of urban and rural areas, so that urbanization and economic development really benefit rural, farmers.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.3;D922.181

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