NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION(五)
|
he building area of both mini-high housing and high housing should be controlled within 100 square meters. 4. Mobilizing the Social Forces to Participate in the Public Housing Construction. — Chinese government should encourage large enterprises, enterprise associations, social groups, mass groups and society elites to establish the social housing cooperatives, and the non-profit and the public interest institutions of house building, so that they can compete with the developers, and take part in the public housing construction together the developers. 5. Carrying Out the Access System of One Family with One House. — In order to achieve the social fairness and satisfy the housing demand of middle income families, the public housing can only be sold to domestic families that meet the conditions to buy a second house for own use, and those individuals who have worked in full time for two years but without housing ownership. The access system of one family with one house should be implemented strictly. It is noted that the purchase of public housing is not yet applicable to the withdrawal system, for simplifying the procedures and reducing the societal management cost. After purchasing the public housing for two full years, the owner will be allowed to sell the house or to purchase commercial housing. 6. The Distinction between the Public housing and the Capped-Price Housing. — Although the target consumers of both the public housing and the capped-price housing are middle income families, the differences between them are obvious: (1) Their quotas of land provision are different. Currently, the quota of land provision for capped-price housing is very limited. However, it requires that 60% of the land outside the land provision quota for the low income housing to be used for the public housing. (2) The bidding methods of land provision are different. The National People’s Congress build capped-price housing can be achieved by means of invitation to bid, auction and open consultation. Therefore, there are no land prices, construction standards, tax rates and profit rates available for capped-price housing, which leave a large gap of uncertainty. On the contrary, the right to build public housing will be achieved by using the bidding method of “four decisions and two biddings,” which guarantees that the construction standards, tax rates, profit rates and housing prices are open, transparent and stable. 2012] CHINA’S HOUSING LEGISLATION 309 (3) The teams of developers are different. The bidding methods of the capped-price housing exclude the possibility of participation of the housing cooperatives and non-profit and public interest institutions of house building, which will cause the formation of the monopolized operation of real estate developers. By comparison, public housing provides the opportunities to the housing cooperation and the non-profit and public interest institutions of house building. Moreover, fierce competition among developers, democratic management and transparent costs will help the public housing to win the trust of house purchasers. (4) The target consumers are different. The level of capped-price housing supply is limited. In addition, there are many restrictions on the target consumers. Therefore, the requirements of middle income families cannot be satisfied. However, as mentioned above, public housing is designed for individuals who have worked in this city for two full years but without housing, and domestic urban families who meet the conditions to buy a second house for their own use, and no other restrictions are placed. Therefore, public housing satisfies the basic need of serving the public. C. Establishing the Habitation Right System Presently in China, some ambiguous provisions of the right of habitation embedded in the Marriage Law, Law on the Protection of Rights and Interests of Women, Law on the Protection of Minors, Law on the Protection of the Elderly, and some relevant judicial interpretations. These provisions are essentially made from the perspective of providing the support for the elderly or foster care for children. Therefore, these provisions neither clarify the characteristic of residential right, nor regulate the methods of establishment and the specific contents. Thus, in legal practices, the protection of the right of habitation is difficult in practice. For instance, article 27(3) of the Supreme Court’s Interpretation on Several Issues of the Applicability of the Marriage Law of the People’s Republic of China (I) stipulates that “at the time of divorce, one party may help the other party who has difficulties in life by offering the dwelling right or ownership of the house out of his (her) personal properties.” However, this article does not clarify the methods, contents and limitation. Consequentially, it will be difficult to apply the right of habitation in legal practices. With respect to the establishment the system of habitation right in China, it is believed that, (a) From the aspect of value orientation, it is important to consider China’s actual conditions and to emphasize the social security of protecting vulnerable groups; (b) from the aspect of system design, the emphasis should be 310 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 the nature of social security, and the provisions that the development of the right of habitation has been seen as a means of investment should not be introduced blindly from other countries, such as Germany; (c) from the aspect of legislative process, since the Real Right Law is not expected to be amended within a short time, enacting the proposed housing act or establishing the provisions on the right of habitation in the Housing Security Law will be a realistic choice. In the meantime, China’s civil law is also in the process of establishment. Therefore, in the future, on the basis of summarizing the experiences and lessons in applying the right of habitation, it should be adopted in the chapter of real right chapter in the civil law. It is insisted that specific contents of the system of habitation right must be taken into account: 1. The Establishment of the Habitation Right. — Based on other countries’ legal experiences, the right of habitation can be divided into (a) the legal-based model and (b) the will-based model. Under the legal-based model, natural person’s right of enjoying the right of habitation is regulated by law, and anyone shall not restrict or deprive this right. 11 Under the will-based model, by comparison, natural person’s right of habitation generates from the will of involved parties. The will-based model includes three situations, i.e., (a) the right established in a testament, (b) the right established as gift after death, and (c) the right established by contract respectively. It is noticed that, as a real right, the right of habitation can be effective only after being noticed. Moreover, registering the right by the relevant authorities is also necessary for the involved parties to establish the will-based model of habitation right. Otherwise, the efficacy of property right cannot be generated. The unregistered right of habitation is only effective between the involved parties and may not challenge any bona fides third parties. 2. The Subject and Object of the Habitation Right. — With respect to the subject of the right of habitation, most of Chinese scholars hold the view that the right of habitation is most generated from marriage and family relationship. This right is originated from the needs of providing support for the elderly or foster care for children. Therefore, the right of habitation is closely related to daily life, and the legal subjects of this right are mostly natural persons who have specific relationship with the house owners. The legal subjects of this right usually include parents, a party in a divorce who temporarily have no living place, the nurses who live in for a long time and the house owners’ relatives who live in because of living difficulties.12 11 Id. at 533. 12 Xiaochun Teng, 讵.埚钴扉愚汤署..塑瘳.黏峪钴.鸲 (A Defect in the Real Right Law: Elimination of the System of Habitation Right), (3) .霞哝埚. (Postgraduate Law Review) 132, 136 (2007). 2012] CHINA’S HOUSING LEGISLATION 311 It is believed that, although natural person mentioned above is the subject of habitation right, the owner should also allow certain persons (such as the family members of the owner) to live together in the house. In accordance with the aims of the system of habitation right, the scope of such natural persons should not be too broad, but limited to the right holder’s spouse, underage children and necessary nurses. 3. The Content of the Habitation Right. — The right of habitation are the right holder’s rights and obligations. The rights of right holders mainly include three aspects, which are the right of using the house, the right of claiming for the property right and the right of requesting compensation respectively. The right-holders’ obligations include: (a) The right- |
我来说两句
已有0评论 点击全部查看
