我国房屋限购令的民法审视
发布时间：2018-09-09 14:39
【摘要】：随着我国经济的飞速发展，我国人民日益增长的物质需求也日益强烈，而使“居者有其屋”也成为国家科学发展中民生保障的重中之重。然而从2007年起由于房地产交易量和交易价格均异常增长，我国随即出台了多项旨在控制楼市房价的房屋调控政策，它们多以户籍或者社会保险缴费年限以及名下已购房套数作为限制标准，这些被统称为房屋限购令。这是为了更有效和及时地对房价进行国家调控，从而抑制上涨过快的房价和投机性房地产投资行为所出台的一项政策。虽然房屋限购令对解决问题的作用短期内产生了一定作用，但却未切中问题的要害。该政策的合理性值得商榷，限购令的功效与局限性也需要反思。目前学界多是从法理学或者法经济学角度阐述对此问题的看法，本文试从民法角度以房屋限购令为例进行审视，以期更好的对今后我国的各种限购令进行规范。 本文的民法视角包括物权限制并深入到所有权的限制方面。除了前言部分共分为五部分。 第一部分，先介绍一下房屋限购令的出台背景和基本内涵，房屋限购令是对购房主体以居民家庭为单位，以有无本市户籍居民家庭为区分条件；非本市户籍居民家庭能够提供本市1年(或2年)以上纳税证明或社会保险缴纳证明的采取限购一套；本市户籍居民家庭无法提供1年以上本市纳税证明或社会保险缴纳证明的采取限购两套或停售的措施。明确房屋限购令的本质是一项民事政策。 第二部分，将目光投向物权法领域，首先对物权的取得限制和行使限制的含义、原因以及方式进行分析说明，明确本文中所讨论的物权限制概念的定义范围，之后对所有权限制进行合理性分析，明确了文章所讨论的所有权限制理论的含义内容，提出所有权限制具有复杂性、多样性、差异性的特点。最后文章论及物权取得的限制与房屋限购令的关系问题，从比例原则、法律保留原则和必要原则三个角度予以论述，对房屋限购令的合理合法性进行分析和解读。 第三部分，房屋限购令作为一项房地产市场的重大政策，不但需要考虑其合法性，更需要考虑其经济性。笔者通过帕累托效率理论和成本分析法分析房屋限购令的可行性和恰当性，同时以现实生活中的民法问题冲突作为焦点来综合考虑房屋限购令的可行性以及优缺点，提出，房屋限购令的颁布实施并不符合帕累托最优的选择，人为地提高非法律成本，从社会经济生活中看，其违法成本大于守法成本，短期内限购令一定程度上抑制了房价过快上涨，但是长期来看，房屋限购政策不具有合理性和效率性。 第四部分，文章首先对房屋限购令的合法性进行分析，说明房屋限购令违反物权登记制度的各种表现，提出限购令因忽视法律而导致执行效果和政策稳定性上不够理想，存在诸多问题需要解决；之后，笔者针对社会生活中的种种规避限购令的现象进行分析介绍，进一步阐述房屋限购令的不完善导致公民违法成本大于守法成本的问题，，根据这些社会现象，笔者提出社会成本和社会效果是评判房屋限购令问题的关键标准。 最后一部分，笔者在前文分析结论的基础上，从民法角度审视房屋限购令，重新思考自由与限制、效率与正义关系的现实取舍问题，提出限购令应以市场交易为前提，以公共利益为原则，控制交易成本，兼顾物权支配的自由。最后，笔者针对目前房屋限购令所出现的问题，提出合理化建议，认为应当尽快从法律上完善限购令，使其符合形式正义的要求；通过房地产行业、社会市场调节和政府适当管控来共同完善房屋限购令，确保房地产市场的健康发展。
[Abstract]:With the rapid development of our country's economy, the increasing material demand of our people is becoming increasingly strong, so that "home ownership" has become the top priority of the people's livelihood Protection in the national scientific development. However, since 2007, due to the abnormal growth of real estate transaction volume and transaction price, China has introduced a number of measures to control housing prices. Housing control policies, which use household registration or social insurance payment years and the number of purchased housing units under their names as restrictive criteria, are collectively referred to as housing restriction orders. The rationality of the policy is questionable, and the efficacy and limitations of the order need to be rethought. At present, most scholars expound their views on this issue from the perspective of jurisprudence or economics of law. This paper tries to discuss this issue from the perspective of civil law. Take the housing restriction order as an example to examine the situation in order to better regulate the various restriction orders in the future.
The civil law perspective of this article includes the limitation of real right and goes deep into the limitation of ownership, except the preface is divided into five parts.
The first part introduces the background and basic connotation of the house purchase restriction order. The house purchase restriction order is the restriction on the adoption of the tax or social insurance payment certificate for the non-city household household households. Purchase of one set; the city's households can not provide more than one year of the city's tax certificate or social insurance payment certificate to limit the purchase of two sets or suspend the sale of measures. Clear house purchase order is a civil policy in nature.
The second part focuses on the realm of real right law. Firstly, the meaning, reasons and ways of restriction of acquisition and exercise of real right are analyzed and explained. Then the definition scope of restriction of real right discussed in this paper is defined. Then the rationality of restriction of all rights is analyzed and the implication of the theory of restriction of ownership discussed in this paper is clarified. Finally, the article discusses the relationship between the restriction of property right acquisition and the house purchase restriction order from three angles: the principle of proportionality, the principle of legal reservation and the principle of necessity, and analyzes and interprets the rationality and legitimacy of the house purchase restriction order.
In the third part, as an important policy of the real estate market, the house purchase restriction order needs to consider not only its legitimacy, but also its economy. The feasibility, advantages and disadvantages of the house purchase restriction order are pointed out. The promulgation and implementation of the house purchase restriction order does not conform to Pareto's optimal choice. It artificially raises the non-legal cost. From the social and economic life, the illegal cost is greater than the law-abiding cost. The short-term purchase restriction order to a certain extent inhibits the rapid rise of house prices, but in the long run, the house limit. The purchase policy is not reasonable and efficient.
In the fourth part, the article firstly analyzes the legality of the house purchase restriction order, explains the various manifestations of the house purchase restriction order violating the real right registration system, and points out that the enforcement effect and policy stability of the house purchase restriction order caused by neglecting the law are not ideal enough, and there are many problems to be solved; then, the author aims at the various evasive restrictions in social life. Based on the analysis and introduction of the phenomena of the purchase order, this paper further expounds the problem that the imperfection of the house purchase order results in the citizens'illegal cost exceeding the law-abiding cost. According to these social phenomena, the author puts forward that the social cost and the social effect are the key criteria for judging the problem of the house purchase order.
In the last part, the author examines the house purchase restriction order from the perspective of civil law, rethinks the realistic choice between freedom and restriction, efficiency and justice, and puts forward that the order should be based on market transactions, take public interests as the principle, control transaction costs, and give consideration to the freedom of property control. At present, there are some problems in the house purchase restriction order, and some rationalization suggestions are put forward. It is believed that the house purchase restriction order should be perfected in law as soon as possible to meet the requirement of formal justice.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923
本文编号：2232676
[Abstract]:With the rapid development of our country's economy, the increasing material demand of our people is becoming increasingly strong, so that "home ownership" has become the top priority of the people's livelihood Protection in the national scientific development. However, since 2007, due to the abnormal growth of real estate transaction volume and transaction price, China has introduced a number of measures to control housing prices. Housing control policies, which use household registration or social insurance payment years and the number of purchased housing units under their names as restrictive criteria, are collectively referred to as housing restriction orders. The rationality of the policy is questionable, and the efficacy and limitations of the order need to be rethought. At present, most scholars expound their views on this issue from the perspective of jurisprudence or economics of law. This paper tries to discuss this issue from the perspective of civil law. Take the housing restriction order as an example to examine the situation in order to better regulate the various restriction orders in the future.
The civil law perspective of this article includes the limitation of real right and goes deep into the limitation of ownership, except the preface is divided into five parts.
The first part introduces the background and basic connotation of the house purchase restriction order. The house purchase restriction order is the restriction on the adoption of the tax or social insurance payment certificate for the non-city household household households. Purchase of one set; the city's households can not provide more than one year of the city's tax certificate or social insurance payment certificate to limit the purchase of two sets or suspend the sale of measures. Clear house purchase order is a civil policy in nature.
The second part focuses on the realm of real right law. Firstly, the meaning, reasons and ways of restriction of acquisition and exercise of real right are analyzed and explained. Then the definition scope of restriction of real right discussed in this paper is defined. Then the rationality of restriction of all rights is analyzed and the implication of the theory of restriction of ownership discussed in this paper is clarified. Finally, the article discusses the relationship between the restriction of property right acquisition and the house purchase restriction order from three angles: the principle of proportionality, the principle of legal reservation and the principle of necessity, and analyzes and interprets the rationality and legitimacy of the house purchase restriction order.
In the third part, as an important policy of the real estate market, the house purchase restriction order needs to consider not only its legitimacy, but also its economy. The feasibility, advantages and disadvantages of the house purchase restriction order are pointed out. The promulgation and implementation of the house purchase restriction order does not conform to Pareto's optimal choice. It artificially raises the non-legal cost. From the social and economic life, the illegal cost is greater than the law-abiding cost. The short-term purchase restriction order to a certain extent inhibits the rapid rise of house prices, but in the long run, the house limit. The purchase policy is not reasonable and efficient.
In the fourth part, the article firstly analyzes the legality of the house purchase restriction order, explains the various manifestations of the house purchase restriction order violating the real right registration system, and points out that the enforcement effect and policy stability of the house purchase restriction order caused by neglecting the law are not ideal enough, and there are many problems to be solved; then, the author aims at the various evasive restrictions in social life. Based on the analysis and introduction of the phenomena of the purchase order, this paper further expounds the problem that the imperfection of the house purchase order results in the citizens'illegal cost exceeding the law-abiding cost. According to these social phenomena, the author puts forward that the social cost and the social effect are the key criteria for judging the problem of the house purchase order.
In the last part, the author examines the house purchase restriction order from the perspective of civil law, rethinks the realistic choice between freedom and restriction, efficiency and justice, and puts forward that the order should be based on market transactions, take public interests as the principle, control transaction costs, and give consideration to the freedom of property control. At present, there are some problems in the house purchase restriction order, and some rationalization suggestions are put forward. It is believed that the house purchase restriction order should be perfected in law as soon as possible to meet the requirement of formal justice.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923
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