债权物权区分视角下处理小产权房问题的法律分析

发布时间：2018-03-27 06:14

本文选题：小产权房　切入点：物权　出处：《渤海大学》2017年硕士论文

【摘要】：小产权房问题,是长久以来我国独特的土地二元化制度下的产物,反映出我国经济高速发展的繁荣背后不协调的另一面。特别是随着房地产市场的蓬勃发展,小产权房规模也在不断扩大。小产权房对外流转主要是通过租赁和买卖两种方式进行,而小产权房的买卖行为由于严重违背我国土地二元化政策,更是被国务院各部委明令禁止。从实务角度而言,审判过程中如何处理小产权房纠纷成为了各地法院的难题。由于缺少相关法律规定的指导,各地法院对于以小产权房作为标的物的合同的效力认定存在很大争议。不仅如此,物权层面依然无法解决小产权房流转。随着城乡一体化建设的不断加深,从制度改革角度而言,解决小产权房问题是势在必行的,也是符合当前市场经济发展潮流的调控手段。然而想要完全解决,还必须考虑由此而引发的耕地流失、土地滥用等一系列问题。关于小产权问题的解决方案主要分为两个层次的问题。浅层次问题是从债权角度关于承认当事人双方签订的围绕小产权房的合同效力的问题,这涉及到双方之间的意思自治及合同利益,需要比较承认合同有效与无效两种情形,通过法条解读及法理分析,并结合两种情形下导致双方之间结果发生的不同而予以具体分析。深层次问题是物权层面处理小产权房问题的方式。从物权平等原则入手,并过渡到政策层面对小产权房的解读,引导出分类处理小产权房的解决方式。对于小产权房问题不能“一刀切”,必须考虑土地用途管制与农村土地规划问题,我国一直没有放开农村集体建设用地使用权,是考虑到一旦放开,会造成大量集体土地滥用,从而对十八亿亩土地红线产生极大冲击。若允许小产权房流转,一来必须对小产权房进行评估登记,保证其占用土地必须是符合土地用途管制与农村土地规划的土地。二来必须考虑到农民、小产权房购买者、政府之间的利益取舍。在债权与物权两个层面互相配合之下,方可标本兼治,保障农民更多的土地权利,让农民真正实现依靠土地来致富,同时发挥出农村土地应有的价值。
[Abstract]:The problem of small property rights houses is the product of the unique land dualization system in China for a long time, reflecting the disharmony behind the rapid economic development of our country, especially with the booming development of the real estate market. The scale of small property houses is also constantly expanding. The external circulation of small property houses is mainly carried out by means of leasing and buying and selling. However, the purchase and sale of small property houses is seriously contrary to the land dualization policy of our country. From a practical point of view, how to deal with disputes over small property rights in the trial process has become a difficult problem for local courts. Due to the lack of guidance from relevant laws and regulations, There is a great dispute in local courts about the validity of contracts on small property houses as the subject matter. Not only that, the property rights level is still unable to solve the problem of the circulation of small property houses. With the deepening of urban and rural integration construction, From the perspective of system reform, it is imperative to solve the problem of housing with small property rights and is also a means of regulation and control in line with the current trend of market economic development. However, in order to completely solve the problem, we must also consider the loss of cultivated land caused by it. A series of problems such as land abuse. The solution to the problem of small property rights is mainly divided into two levels. The shallow problem is the problem of recognizing the effectiveness of the contract signed by the parties around the small property right house from the perspective of creditor's rights. This involves the autonomy of meaning and the interests of the contract between the two parties. It is necessary to compare the recognition of the validity and invalidity of the contract, and interpret it through articles of law and legal analysis. The deep problem is the way to deal with the problem of small property right at the level of real right, starting with the principle of equality of real right. And transition to the policy level to the interpretation of small property houses, leading to the classification of small property housing solutions. For small property housing problem can not be "one-size-fits-all", we must consider land use control and rural land planning issues, Our country has not released the rural collective construction land use right all along, considering that once liberalized, it will cause a large amount of collective land abuse, which will have a great impact on the red line of 1.8 billion mu of land. If small property right houses are allowed to circulate, First, the small property houses must be assessed and registered to ensure that the occupied land must be in accordance with land use control and rural land planning. Second, the farmers and buyers of small property houses must be taken into account. Only when the creditor's rights and the real right cooperate with each other, can we deal with both the root and the root, protect more land rights of the peasants, let the peasants truly rely on the land to get rich, and at the same time bring into play the value of the rural land.
【学位授予单位】：渤海大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

【相似文献】