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| 文章编号：1672-3104(2017)02-0034-09 |
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“小产权房”规制路径新探——以存量“小产权房”的调控为突破口 |
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张素华，张鑫 |
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（武汉大学法学院，湖北武汉，430072） |
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| 摘 要： “小产权房”屡禁不止、存量居高不下，仅靠国家政策难以有效规制，存量“小产权房”何去何从正困扰各级政府。“完全商品化”会对商品房市场造成毁灭性冲击，完全拆除也不现实，而补缴土地使用权出让金或转归保障房更难以推进。这些解决路径都是基于“同地同权”这一理论基础的，实践证明均难以有效地解决“小产权房”问题。调整存量“小产权房”须基于“同地不同权”的社会现实与法律现状。有条件地确认“小产权房”的合法地位并不违反现行宪法和有关法律的意涵，构建独立的“乡产权房”市场是令“小产权房”走出困境的最优路径，这并不与“建设城乡统一的建设用地市场”相冲突，反而有助于该目标的实现和城乡统筹发展。 |
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| 关键词： “小产权房”；集体建设用地使用权；比例原则；用益物权 |
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Exploration of new approaches to regulate “houses with limited property rights”: With regulating the stock as the sticking point |
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ZHANG Suhua, ZHANG Xin |
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（School of Law, Wuhan University, Wuhan 430072, China） |
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| Abstract: “Houses with limited property rights” are repeatedly prohibited but still widely exist, which is difficult to be effectively regulated by national policy alone. The problem has long troubled governments at all levels. In fact, being “fully commercialized” may have a devastating impact on commercial housing market, while completely compulsory dismantlement is unrealistic, and making up the assignment fees of the use right of land or turning it into the indemnificatory housing is even more difficult to carry out. These solutions are all based on “each ownership with equal rights”, but practice has proved that they cannot solve the problem reasonably and effectively. And regulating the stock of “houses with limited property rights” should be based on the social reality and current law that “the same ownership of the land does not mean equal rights”. Maybe the optimal and best strategy to lead “houses with limited property rights” out of the dilemma is to conditionally regulate “houses with limited property rights” without violating the connotative meaning of current constitution and applicable law and to construct the independent market of “rural commercial residential housing.” This, rather than being in conflict with the goal of “establishing a unified urban-rural construction land market,” rather contributes to realizing the goal and effecting balanced urban and rural development. |
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Key words: “houses with limited property rights”; the right to use collectively-owned construction land; proportionality principle; usufruct rights |
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