小产权房法律问题的困境与出路

发布时间：2018-09-04 13:07

【摘要】：小产权房作为我国土地二元制度下所特有的产物,从法律层而上看,它并不是一个规范的法律概念,只是人们相对于城市商品房而言对其形成的一种约定俗成的叫法。近年来,随着城市商品房价格的飞涨,价格低廉的小产权房越来越成为城市中低收入群体所追捧的对象,各地小产权房也开始呈现出蓬勃发展的态势。根据我国现行的法律法规,对小产权房合法性地位的认可存在一定的法律障碍,而其存在又确实具有一定的合理性,这就引发了学界对小产权房问题的热烈讨论。而且,随着小产权房规模的越来越大,其所凸显的矛盾也越来越尖锐,对小产权房问题的处理显得刻不容缓,国土资源部也将“清理小产权房”问题列为今年工作的重点之一,并且将选择几个城市作为清理小产权房的试点城市。因此,研究小产权房问题既具有一定的理论的意义,更具有很强的现实意义。本文主要分为三部分：第一部分主要阐述了小产权房的内涵及其类型。从区分“小产权”与“乡产权”的不同之处入手明晰了小产权房的内涵界定,指出了判断小产权房的基本标准,然后在此基础上,依据不同的角度,对小产权房进行了不同的分类,并且阐述了对小产权房进行类型划分的意义。第二部分主要论述了小产权房产生的背景原因以及学界对小产权房法律地位的争论和评析。小产权房实际上是在我国城镇化快速发展、土地价值不断凸显的背景下而产生的,由于促使小产权房产生的原因很多,因此本文将这些原因分别归纳为现实原因、重要原因和根本原因三个方面,由此进行深入地分析,为下文从根源上解决小产权房问题进行了铺垫。同时,本章还归纳总结了学界对小产权房法律地位的主要争论观点,并且提出了自己的看法。第三部分主要阐述了小产权房所面临的法律困境并对如何合理地解决小产权房问题进行了深入地探讨。依照我国现行法律制度,小产权房所面临法律困境主要有：立法上的冲突、物权方面的问题、债权方面买卖合同的效力问题以及对小产权房的继承、监管等其他方面的法律问题。小产权房之所以存在如此之多的法律困境,主要在于其一直游离在我国法律制度的边缘之处,并不违宪但又违反了某些法律制度,既有其存在的合理性又具有一定的危害性,因此,对于尽快处理这样一个处在法律灰色地带的事物是势在必行的,这便是本章第二部分所进行的探索,即在基于前文对小产权房类型、产生背景原因等的分析、论述上,探讨解决小产权房问题的路径。为了在处理小产权房问题的过程中不走弯路,首先依据我国的基本国情结合小产权房的现状,提出了四项基本原则,并在这些原则的指导下对如何合理的处理现有小产权房进行了分析,最后从法律制度层面上探索了解决小产权房问题的根本措施。
[Abstract]:As a special product of the dualistic system of land in our country, the small property house is not a standard legal concept from the legal level. In recent years, with the rapid rise in the price of urban commercial housing, low-priced small property houses have become more and more popular among low-income groups in cities, and small property houses in various places have also begun to take on a vigorous development trend. According to the current laws and regulations of our country, there are certain legal obstacles to the recognition of the legal status of the small property right house, and its existence has certain rationality, which has aroused the heated discussion of the problem of the small property right house in the academic circles. Moreover, as the scale of small property houses becomes larger and larger, the contradictions highlighted therein are becoming more and more acute. It is urgent to deal with the problem of small property houses. The Ministry of Land and Resources has also made the issue of "cleaning up small property houses" one of the key points of this year's work. And will choose a few cities as a pilot city to clean up small property rights. Therefore, the study of the problem of small property rights has a certain theoretical significance, but also has a strong practical significance. This paper is mainly divided into three parts: the first part mainly expounds the connotation and types of small property housing. Starting from the difference between "small property right" and "township property right", this paper clarifies the definition of the connotation of small property right house, points out the basic standard of judging small property right house, and then on this basis, according to different angles, This paper classifies the small property house differently, and expounds the significance of the classification of the small property house. The second part mainly discusses the background reason of the production of the small property house and the controversy and analysis of the legal status of the small property house in academic circles. In fact, the small property house is produced under the background of the rapid development of urbanization and the continuous prominent land value in our country. Because there are many reasons to promote the production of the small property house, these reasons are summed up as realistic reasons in this paper. Three aspects of important causes and root causes are analyzed, which pave the way for solving the problem of small property right. At the same time, this chapter also summarizes the academic community on the legal status of small property rights main points of view, and put forward their own views. The third part mainly expounds the legal dilemma that the small property house faces and probes into how to solve the problem of the small property house reasonably. According to the current legal system of our country, the legal difficulties faced by small property houses mainly include: conflicts in legislation, problems in real rights, the validity of contracts of sale and purchase in creditor's rights, and the inheritance of small property houses. Other legal issues such as regulation. The reason why there are so many legal dilemmas of small property right houses is that they have been on the edge of our country's legal system. They are not unconstitutional but also violate some legal systems, which have both rationality and harmfulness in their existence. Therefore, it is imperative to deal with such a legal grey area as soon as possible. This is the exploration carried out in the second part of this chapter. To explore the solution to the problem of small property rights of the path. In order not to take a detour in the process of dealing with the problem of small property houses, firstly, according to the basic conditions of our country and the current situation of small property houses, four basic principles are put forward. Under the guidance of these principles, the author analyzes how to deal with the existing small property right house reasonably, and finally explores the basic measures to solve the problem of small property right house from the legal system level.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.3;D923

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