A Review of Research on Rural Homestead Issues in China: A Synthesis of Core Viewpoints

With the rapid development of China's economy and the continuous acceleration of urbanisation, urban construction land has been continuously expanding. Urban construction land resources are becoming increasingly scarce, and the expansion of urban scale has incorporated the rural collective land on the outskirts of cities into urban land. After the reform and opening up in 1978, farmers' incomes continued to increase and their living standards improved significantly. Coupled with the large rural population base and the continuous growth of the new population, improving housing conditions became farmers' primary demand. Village scales continued to expand, and village collective construction land resources became increasingly scarce. In the early 1980s, the situation arose in which farmers occupied their own cultivated land to build houses, wasting a large amount of cultivated land. In order to ensure national food security, hold the red line of 1.8 billion mu of cultivated land, and conserve and rationally utilise land, the State Council proposed in 2004 to encourage the consolidation of rural construction land, and that the increase in urban construction land should be linked to the decrease in rural construction land, which is what we now often refer to as the “increase-decrease linkage”.

In 2005, the Central Committee of the Communist Party of China and the State Council proposed advancing the building of a new socialist countryside, strengthening the planning and management of homesteads, and vigorously conserving village construction land. Against the background that local governments' fiscal revenue mainly relied on selling land, homesteads became the government's next revenue target. Driven by economic interests and political achievements, local governments actively promoted land consolidation and the policy of moving farmers into apartments, and the phenomenon of farmers being “forced upstairs” appeared in various places. Many contradictions also emerged in the process of expropriating farmers' homesteads. The situations of petitioning, self-immolation and conflicts between officials and the people caused by the forced demolition of farmers' houses became increasingly serious, and also attracted the attention of the Central Committee of the Communist Party of China, the State Council and the broad masses of the people. With the promotion of the building of a new socialist countryside and the “increase-decrease linkage” of construction land, the homestead issue once again became a focus of public attention.

I. Homestead-related concepts

After the founding of the People's Republic of China, China's land system underwent a change from private ownership to public ownership, and homesteads also underwent an evolutionary process from private to public ownership. Since land and homestead policies and regulations underwent multiple adjustments after the founding of the People's Republic of China, it is necessary to clarify the relevant concepts.

(1) Collective land. Collective land refers to land owned by rural collective organisations. China's land can be divided into two categories according to its nature: one is land owned by the state, and the other is land owned by collectives. Article 10 of the 2004 Constitution stipulates: “Land in cities is owned by the state. Land in rural and suburban areas is owned by collectives except for those portions which belong to the state in accordance with the law; house sites and privately farmed plots of cropland and hilly land are also owned by collectives.” Collective land is jointly enjoyed by all members within the collective organisation.

(2)(2) Collective construction land. Collective construction land refers to land used for various non-agricultural construction projects invested in or funded by township (town) village collective economic organisations and rural individuals. It mainly includes: land for township (town) village public welfare undertakings and public facilities, as well as residential land for rural residents.

(3)(3) Homestead. Homestead has both broad and narrow senses. In the broad sense, homestead refers to all land used for building houses for residence and use, including residential land on both state-owned land and collective-owned land. In the narrow sense, homestead refers only to rural residents' residential land on collectively owned land, which is residential land and ancillary land allocated by rural collective economic organisations to their member households to meet the living needs of members within the collective economic organisation and the needs of engaging in household sideline production. At present, domestic scholars generally use the narrow concept of homestead in their research. According to the narrow definition, homestead includes three types: land on which houses have been built, land on which houses were once built but which can no longer be lived on because there is no superstructure, and planned land prepared for building houses.

(4)(4) Homestead use right. Rural homestead use right refers to the right enjoyed by members of rural collective economic organisations in accordance with the law to build residences and ancillary facilities on homesteads collectively owned by farmers and to directly control and exclude others from them.

(5)(5) Transfer of homestead use right. The transfer of rural homestead use right refers to the act by which farming households possessing a valid rural homestead use right and ownership of the houses on that rural homestead transfer the homestead use right together with the house ownership to others in accordance with the law. The transfer of homesteads includes various forms such as mortgage, lease, sale, exchange, inheritance and contribution as shares.

(6)(6) Increase-decrease linkage of urban and rural construction land. The increase-decrease linkage of urban and rural construction land refers to the designation, in accordance with the overall land use plan, of several rural construction land parcels to be consolidated and reclaimed as cultivated land and parcels to be used for urban construction, of equal area, to jointly form a project area of building new and demolishing old. Through measures such as building new and demolishing old and land consolidation and reclamation, on the basis of ensuring the balance of various types of land areas within the project area, the ultimate goals are to increase the effective area of cultivated land, improve the quality of cultivated land, conserve and intensively utilise construction land, and achieve a more rational layout of urban and rural land use. That is, rural construction land is directly linked to urban construction land: if the consolidation and reclamation of rural construction land increases cultivated land, the town can correspondingly increase construction land of a corresponding area.

II. Domestic research on homesteads

Domestic research on homestead issues is mainly concentrated in the fields of economics, legal systems and management. Research in the economic field is mainly concentrated on the study of property rights relations, clarifying the ownership of rural homestead property rights and promoting homesteads' entry into the primary land market for transfer. The legal field mainly involves the acquisition, protection and transfer of homestead use rights, as well as studying homesteads as a type of usufructuary right to determine how to safeguard farmers' rights and interests within the existing legal and regulatory framework. Research in the field of management is mainly concentrated on the problems existing in the homestead system and how to improve it, such as the homestead registration system, the homestead acquisition system and the homestead transfer system.

(I) From the perspective of economics

Works by economics scholars on the rural land system mainly include: In the book Three Rural Issues and Reflections on the Century, Wen Tiejun argues that the more strained the human-land relationship, the harder it is to fully privatise land. If the overloaded rural population on the land cannot be reduced, this incomplete property right is a feasible and reasonable institutional arrangement. Incomplete property rights also provide institutional conditions for governments at all levels to infringe on farmers' interests in the name of state power. In the book Property Rights and Politics: Village Experience from the Perspective of the Relationship between the State, the Collective and Farmers, Liu Jinhai points out that with the urbanisation of rural areas and the expansion of cities, a process of “re-collectivisation” has emerged in rural collective assets, and this process of “re-collectivisation” has expanded the autonomy of the collective, forming a new type of perspective in rural society———all-encompassing collective power. In the book Research on China's Rural Land Property Rights System, Ye Jianping and others argue that China's rural homestead property rights system is the sum of the relationship between farmers' residential land ownership and use right, and is, under the rural land collective ownership system, a series of rights centred on farmers' residential land use right, the essence of which is rural land property rights with land use right as the main content.

(II) From the perspective of the legal system

At present, research on homesteads is mostly concentrated in the field of legal systems, so there are relatively many research results in this field. The research perspectives are mainly concentrated in the following aspects:

1. Research on homestead ownership. Regarding the reform of the rural homestead system, there are roughly three different viewpoints in theoretical circles. The first is to maintain and improve the existing collective ownership of rural homesteads. Li Changping believes that the current rural land system does not affect the transfer of land use rights. He Xuefeng believes that collective ownership of land, with ownership belonging to the collective and use right belonging to farming households, is a very clear property rights structure that conforms to the current reality of rural China. The current agricultural land institutional arrangement is quite reasonable, is the biggest secret of China's rapid economic growth and the basic condition for China's future development, and we should cherish it. The second is to advocate state ownership with permanent tenancy for farmers. Zhou Tianyong believes that the rural land system should implement “state ownership + a 999-year use period”, abolish collective ownership of land in rural areas, nationalise all land, and, taking the last round of contracting as the basis for homestead land and cultivated land, and already contracted operations as the basis for farmers' contracted wasteland, desert, mountainous land, forest land, fish ponds, etc., have farmers reside on, use and operate them for a future period of 999 years. The third is to advocate that land be owned by farmers. Chen Zhiwu believes that the rural collective land system is a product of history, and that as long as land rights remain public, farmers' interests will continue to be infringed upon; he advocates achieving farmer ownership of farmers' land. Yu Jianrong believes that it is precisely collective land ownership that limits the exercise of ownership, and advocates returning land rights to farmers. Cai Jiming believes that private ownership of agricultural land can improve the long-term stability of agricultural land property rights, that mortgages can provide funds for production, that it can improve the liquidity of property rights, promote the effective allocation of labour and provide social security for farmers. Ma Lixin points out that the rural homestead system's change from farmers' private ownership to collective ownership does not conform to farmers' wishes, that collective ownership of rural homesteads is discrimination against farmers, and that the homestead system is a remnant of the people's commune system and a remnant of the planned economy system. He proposes that collective ownership of rural homesteads should be changed to farmer ownership.

2. Research on homestead institutional change. Regarding the division of stages in homestead institutional change, different scholars divide the time differently and from different perspectives. Jiang Ailin and Chen Haiqiu divide homestead system legislation into five stages: the period of private homestead legislation (1949-1956); the people's commune period legislation (1956-1978); early reform and opening up legislation (1978-1985); the stage of unified urban and rural land management (1986-1996); and the period of transition of the urban and rural land management system (1996-2006). Ding Guanliang divides the process of China's homestead institutional change into four stages: 1949-1962, rural homesteads were privately owned by farmers, and farmers enjoyed homestead ownership; 1962-1981, homesteads belonged to the production team collective, and farmers enjoyed homestead use rights; 1982-1996, homesteads belonged to farmers' collectives, and rural residents and urban residents enjoyed homestead use rights; 1997 to the present, homesteads belong to farmers' collectives, and farming households enjoy homestead use rights. Xu Zhenyuan and Kong Xiangzhi divide it into three stages: 1978-1985: the stage of regulating and managing land by administrative means; 1986-1996: the stage of unified urban and rural management; 1997 to the present: the stage of transition of the urban and rural land management system. Han Lida and Li Manning divide the homestead system into two stages: 1949-1958, farmers enjoyed homestead ownership and homesteads were allowed to be freely transferred; 1959 to the present, homesteads changed from farmers' private ownership to collective ownership, farmers enjoy free use rights, and free transfer of homesteads is restricted.

3. Legal research on homestead use rights. In the book Research on Property Law (Revised Edition), Wang Liming makes a specific definition of the concept of China's homestead use right, and at the same time conducts in-depth analysis and discussion of the characteristics, content, acquisition, transfer and extinction of homesteads from the perspective of property law. In the book Research on the Rural Land Legal System, Chen Xiaojun conducts research on the actual situation of rural land by means of empirical investigation, proposes the problems existing in reality in China's current rural construction land use right system, and provides theoretical analysis and evaluation of the relevant systems and laws. In the book Research on Basic Issues of the Rule of Law in Rural China, Ding Guanliang proposes that China has no specialised legislation on rural homesteads, and that rural homesteads have long been regulated and adjusted jointly by laws and policies. Guo Mingrui expresses his own views on the concept and scope of homestead use rights in property law legislation, the number of homesteads occupied by farming households, and the transfer of homestead use rights, and suggests specialised legislation on homestead use rights. Liu Jun points out that a single institutional value concept cannot adapt to the needs of society, and that the lack of unity in legislative basis, concepts and standards leads to contradictions and conflicts in current provisions. He proposes several core issues of the legal system of homestead use rights: whether the guarantee attribute leads to the non-transferability of the right; whether a right acquired free of charge can be transferred for consideration; whether homestead use rights can be sold to urban residents; and whether allowing transfer will produce a large number of homeless farmers. Han Yubin believes that the design of rural homestead use rights in property law should demonstrate the pursuit of the legal values of justice and efficiency. According to the requirements of legal values, rural homestead use rights should be propertised and can be disposed of relatively freely. Han Shiyuan believes that the Property Law has not solved the problem that rural homestead use rights can only be transferred within collective economic organisations. He advocates establishing a land leasehold right for homestead use rights to solve the problem of instability of rural land use rights after large-scale transfer of rural homesteads. Jiang Ailin and Chen Haiqiu believe that China's current homestead laws and regulations are incomplete, the legislative content is rough, regulations conflict with each other and the level of regulations is relatively low, and propose that specialised legislation should be established for homesteads.

4. Research on the original acquisition system of homestead use rights. After reviewing the current initial acquisition system of homestead use rights, Gao Shengping and Liu Shouying point out that China's current homestead use right system places excessive emphasis on the role of administrative examination and approval in the initial acquisition of homestead use rights, and propose that the homestead use right acquisition system should be reconstructed according to the principles of acquisition of real rights other than ownership, clearly stipulating the subject and procedures for acquiring homestead use rights. Chen Xiaobo points out that the acquisition of rural homestead use rights is relatively chaotic, and that current legislation defines the concept of household rather vaguely. He believes that the law should stipulate a certain time limit between the acquisition of homestead use rights and the construction of houses. Cai Lidong believes that, with the rural collective as the subject of land ownership, villagers acquire homestead use rights in the form of a contract with the collective in their capacity as collective members, using this method to replace the current administrative examination and approval. Shen Xinxin believes that collective land has both public welfare and private interest characteristics, and that the government's management of homestead use rights should transition from the current administrative department's administrative licensing to mainly ex officio confirmation supplemented by confirmation upon application.