小产权房的利益冲突与对策研究
发布时间：2019-03-07 12:46
【摘要】：本文以小产权房为研究对象，以我国特有的土地用途管制制度和社会现实为基础，分析了与小产权房相关的各利益群体之间的利益冲突，试图寻找到小产权房及其利益冲突产生的法律和社会原因，从而提出解决的途径和办法。 本文包括引言、正文和结语共六个部分。第一部分引言中，笔者通过分析我国小产权房出现的历史背景，以及目前法学界对小产权房问题的争议讨论，来引出下文的基本内容。第二部分小产权房概述，介绍了小产权房的相关定义和学界对其的界定，并以北京市具体的小产权房案件为例，通过对小产权房现状的分析，提出笔者的观点，即“堵”不如“疏”，应该对其进行合理的引导和规制。第三部分为小产权房产生的原因。首先从法律制度的角度对小产权房定位，利用《宪法》、《土地管理法》等相关法律规定对小产权房的解释进行对比来揭示现行规定的不合理性，然后分别从我国的社会结构、经济发展等方面入手，对我国特有的土地制度进行分析，指出不合理的土地制度才是我国小产权房产生的深层次原因。第四部分是小产权房问题所引发的利益冲突。主要从法经济学的角度，分别分析了城市与农村之间的利益冲突、政府与农民之间的利益冲突、农村集体与农民个体之间的利益冲突、农村集体与购房者之间的利益冲突、房地产开发商与农村集体之间的利益冲突以及房地产开发商与普通公众之间的利益冲突之后，得出将小产权房界定为非法是法律在利益分配中的一种失衡的表现。房地产开发商和地方政府是其中的既得利益者，而普通城市民众和农民则是利益被牺牲的一方。从而进一步提出法律制度的设计应当符合资源分配的利益均衡性原则，应对当前不合理的法律制度进行修正，使其能够更合理的分配社会资源。第五部分是小产权房相关利益冲突的解决途径。笔者在前面几章的基础上，通过小产权房合法化的必要性与可行性分析、明晰集体土地所有权主体、合理化土地用途管理、加强土地交易的管理与引导等方面来提出建议，试图解决目前存在的各方利益冲突。最后一部分结语里，作者提出文章的最终观点，即小产权房是中国特有的土地制度、经济形势、不完善的法律制度、多方利益不平衡博弈等多方面原因综合的产物。禁止小产权房交易，不仅违反宪法中国有土地与集体土地所有权平等的规定，也不符合市场经济交易自由的原则，更不利于我国社会经济的健康发展和资源公平分配，所以应该多方共同作用，，赋予小产权合法的地位。
[Abstract]:Based on the special land-use control system and social reality, this paper analyzes the conflicts of interest among various interest groups related to small-property-right housing, taking the small-property house as the research object, and on the basis of the special land-use control system and social reality in our country. This paper tries to find out the legal and social reasons of the small property right house and the conflict of interest, so as to put forward the ways and methods to solve it. This article includes the introduction, the text and the conclusion altogether six parts. In the first part of the introduction, the author analyzes the historical background of the emergence of the small property right house in China and the dispute discussion on the small property right house in the legal circle at present, so as to draw out the basic content of the following. The second part summarizes the small property right house, introduces the related definition of the small property right house and the definition of it by the academic circles, and takes the concrete small property right house case in Beijing as an example, through the analysis of the present situation of the small property right house, puts forward the author's point of view. That is, "clogging" is not as good as "sparse", it should be reasonably guided and regulated. The third part is the reason of the small property right house. First of all, from the point of view of the legal system, the author compares the interpretation of the small property right houses with the relevant legal provisions, such as the Constitution and the Land Administration Law, to reveal the irrationality of the current regulations, and then separately from the social structure of our country. From the aspects of economic development, this paper analyzes the special land system of our country, and points out that the unreasonable land system is the deep-seated cause of the small property right house in our country. The fourth part is the conflict of interest caused by the problem of small property right house. From the angle of law and economics, this paper analyzes the conflict of interest between the city and the countryside, between the government and the farmer, between the rural collective and the individual farmer, and between the rural collective and the buyers of the house. After the conflict of interest between the real estate developer and the rural collective and between the real estate developer and the general public, it is concluded that the illegal definition of the small property right house is an unbalanced performance of the law in the distribution of interests. Real estate developers and local governments are vested interests, while ordinary urban citizens and farmers are the ones whose interests have been sacrificed. Therefore, the design of the legal system should conform to the principle of balance of interests in the distribution of resources, and the current unreasonable legal system should be amended so as to make it more reasonable to allocate social resources. The fifth part is the way to solve the conflict of interest related to the small property right house. On the basis of the previous chapters, the author puts forward some suggestions by analyzing the necessity and feasibility of legalization of small property right houses, clarifying the subject of collective land ownership, rationalizing land use management, strengthening the management and guidance of land transaction, and so on. Trying to resolve the current conflict of interest between the parties. In the last part of the conclusion, the author puts forward the final point of the article, that is, the small property right house is the product of the special land system, the economic situation, the imperfect legal system, the multi-party interest imbalance game and so on in China's unique land system, the economic situation, the imperfect legal system and so on. The prohibition of small property right housing transactions not only violates the constitutional provisions on the equality of ownership of land and collective land in China, but also does not conform to the principle of free trade in the market economy, and is not conducive to the healthy development of China's social economy and the fair distribution of resources. Therefore, we should work together to give the legal status of small property rights.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.29
本文编号：2436135
[Abstract]:Based on the special land-use control system and social reality, this paper analyzes the conflicts of interest among various interest groups related to small-property-right housing, taking the small-property house as the research object, and on the basis of the special land-use control system and social reality in our country. This paper tries to find out the legal and social reasons of the small property right house and the conflict of interest, so as to put forward the ways and methods to solve it. This article includes the introduction, the text and the conclusion altogether six parts. In the first part of the introduction, the author analyzes the historical background of the emergence of the small property right house in China and the dispute discussion on the small property right house in the legal circle at present, so as to draw out the basic content of the following. The second part summarizes the small property right house, introduces the related definition of the small property right house and the definition of it by the academic circles, and takes the concrete small property right house case in Beijing as an example, through the analysis of the present situation of the small property right house, puts forward the author's point of view. That is, "clogging" is not as good as "sparse", it should be reasonably guided and regulated. The third part is the reason of the small property right house. First of all, from the point of view of the legal system, the author compares the interpretation of the small property right houses with the relevant legal provisions, such as the Constitution and the Land Administration Law, to reveal the irrationality of the current regulations, and then separately from the social structure of our country. From the aspects of economic development, this paper analyzes the special land system of our country, and points out that the unreasonable land system is the deep-seated cause of the small property right house in our country. The fourth part is the conflict of interest caused by the problem of small property right house. From the angle of law and economics, this paper analyzes the conflict of interest between the city and the countryside, between the government and the farmer, between the rural collective and the individual farmer, and between the rural collective and the buyers of the house. After the conflict of interest between the real estate developer and the rural collective and between the real estate developer and the general public, it is concluded that the illegal definition of the small property right house is an unbalanced performance of the law in the distribution of interests. Real estate developers and local governments are vested interests, while ordinary urban citizens and farmers are the ones whose interests have been sacrificed. Therefore, the design of the legal system should conform to the principle of balance of interests in the distribution of resources, and the current unreasonable legal system should be amended so as to make it more reasonable to allocate social resources. The fifth part is the way to solve the conflict of interest related to the small property right house. On the basis of the previous chapters, the author puts forward some suggestions by analyzing the necessity and feasibility of legalization of small property right houses, clarifying the subject of collective land ownership, rationalizing land use management, strengthening the management and guidance of land transaction, and so on. Trying to resolve the current conflict of interest between the parties. In the last part of the conclusion, the author puts forward the final point of the article, that is, the small property right house is the product of the special land system, the economic situation, the imperfect legal system, the multi-party interest imbalance game and so on in China's unique land system, the economic situation, the imperfect legal system and so on. The prohibition of small property right housing transactions not only violates the constitutional provisions on the equality of ownership of land and collective land in China, but also does not conform to the principle of free trade in the market economy, and is not conducive to the healthy development of China's social economy and the fair distribution of resources. Therefore, we should work together to give the legal status of small property rights.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.29
【参考文献】
相关期刊论文 前1条
1 周安远;;小产权房问题思考[J];上海房地;2008年12期
本文编号：2436135
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