“小产权房”面临的法律难题及其破解

"小产权房"是我国近年来出现的社会现象,然而其在建设及交易过程中面临着诸多法律上的难题。这些难题表明我国集体土地所有权被虚置,建设用地使用权流转机制亦不健全。要破解这些法律难题,应当赋予农村集体建设用地使用权以完全用益物权效力,构建城乡平等的建设用地使用权流转制度;创新集体土地所有权和使用权主体制度,确保所有权权能的实现;完善土地征收制度,禁止为"商业利益"而征收;构建科学的城乡土地利用规划制度,同时政府应当让利于民。

On Surmounting the Legal Difficulties for Housing Without Real Estate Ownership

As a social phenomenon, housing without real estate ownership has come up in China in resent years. But it faces many legal difficulties during the process of construction and transaction. These legal difficulties indicate that collective land ownership is emptied, and the alienation of right to use construction land is unsound. In order to surmount these difficulties, we should endow rural collective right to use construction land with complete effect of usufructuary right to construct equal system of the alienation of right to use construction land between urban and rural areas. We should create subject systems of collective land ownership and collective right to use land to implement rights of ownership. Systems of requisition lands should be improved and the requisition for business benefit should be prohibited. The planning system to use land should be constructed in urban and rural areas scientifically. Government should give civil subjects opportunities for benefit.