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| From “Personal Servitude” to “Superficies”——Reshaping the Right to Use the Homestead |
| Wen Shiyang Han Fuying |
| Law School， Zhongnan University of Economics and Law， Wuhan 430073 |
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Abstract The right to use the homestead under the usufruct system is engraved with the character of personal servitude. Although the social security function has been realized， it is difficult to realize the property value and financing function of the land. The policy of separation of three rights relating to rural homestead is a subdivision of the private rights of the land， expanding the right to use the homestead. Firstly， the compilation of property rights in the civil code should adopt the shaping path of superficies， respond to the policy guideline of separation of three rights，break through the institutional barriers of the personal servitude， and improve the corresponding system design. Secondly， the circulation of the right to use the homestead should be properly lifted， so as to retrieve the nature of property rights and promote the realization of financing function. Thirdly， taking advantage of the opportunity of the completion of registering the rights of contracted land， we should adopt the rules of registration effectiveness to realize the publicity of the change of real right. Fourthly， exploring the rewarding acquisition mechanism and adopting the approach of different treatment to construct， we should adopt the withdrawal and compensation model on a voluntary basis and perfect the multiple compensation mechanism to protect peasants’ interests. Lastly， we should strengthen the collective land ownership， prevent it from weakening and being void， and fulfill the collective member right，so as to realize the protection of peasants’ rights.
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Received: 21 May 2019
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2019, Vol. 58 
