宅基地管理与物权法的适用限度

对土地管理制度的既有讨论,通常是从宪法第10条出发,没有考虑宪法第6条对"生产资料的社会主义公有制"的规定,将"国家所有"与"集体所有"片面理解为民法所有权而忽视其所有制内涵。物权制度是所有制关系的法律反映,"生产资料的社会主义公有制"是超越新中国历部宪法和其它具体法律的基本宪法原则,运用物权规则完善宅基地管理制度,需以公有制为大前提。忽视公有制前提的物权化改革建议,陷入"私法‘宪法中立",的认识误区,加上对宅基地经济社会属性的误会,所提出的改革方案缺乏法理与现实依据。现有制度在实现社会财富公平分配、公共资源有效管理和农民权利保护等方面基本有效,下一步改革只需做局部调整而无需全盘重建。

Structure of Homestead Administration System and Limits of Application of the Property Law

In China, the discussion on the land administration system is usually conducted on the basis of Article 10 of the Constitution, but without taking into consideration of Article 6 of the Constitution, which provides for the "socialist public ownership of means of production". As a result, "ownership by the state" and "ownership by the collective" are understood as ownership under the civil law and the connotation of the ownership system is ignored. The ownership system is the reflection in law of ownership relationships, and the socialist public ownership of means of production is the basic constitutional principle which transcends the several constitutions adopted since the founding of the People''s Republic of China and all specific laws. Therefore, public ownership system should be taken as the precondition for the improvement of the homestead administration system through the application of rules of property rights. The reform proposals that treat the rights related to rural homestead as property rights and ignore the premise of public ownership of land will lead to misunderstanding about "the constitutional neutrality of private law". Because of this misunderstanding and misunderstandings about the economic and social attributes of homestead, such proposals lack jurisprudential and practical bases. The existing system is basically effective in the realization of fair distribution of social wealth, in the administration of public resources, and in the protection of farmers'' rights, and is compatible with the current stage of urbanization in China. Therefore, at the next stage of reform, China should adhere to and improve, rather than complete demolish and rebuild, the existing system.