| 摘要: |
| 农村宅基地资格权的性质在现行法律规范中尚无明确表达,学者对此各抒己见,提出诸如“剩余权说”“配给权说”“宅基地使用权说”“成员权说”等不同的观点。综合考虑农村宅基地资格权提出的政策意蕴与功能定位,资格权应定性为一种成员权。在法权构造方面,资格权内含身份属性与财产属性,其中前者包括宅基地初始取得的分配请求权,随身份的得丧变更而变化；后者包含土地征收补偿权、资格退出补偿权等,属于事实占有的可期待利益。 |
| 关键词: 三权分置 资格权 成员权 宅基地使用权 |
| DOI：10.13216/j.cnki.upcjess.2020.06.0012 |
| 分类号:D912.3 |
| 基金项目:山东省社会科学规划项目(18BSPJ03) |
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| Ownership Orientation and Legal Structure of Rural Homestead Qualification Right |
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QIN Yong, HAN Shipeng
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(School of Humanities and Law, China University of Petroleum (East China), Qingdao, Shandong 266580, China)
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| Abstract: |
| The qualification right of rural homesteads has not been clearly expressed in the current laws and regulations. There are various views among scholars, such as, "residual right" "ration right" " right of use of rural homestead "and "member right", et al. In considering the policy intentions and practical function of the "Three Rights Seperation" policy, "qualification right" should be defined as "member right". In the aspect of legal structure,"qualification right" should be characterized as a composite right with both identity and property. The former includes the right to obtain homesteads and changes with identity. The latter includes "the right to levy homesteads" "the right to withdraw from homesteads" and so forth, and belongs to expected benefits that are based on the fact of possession. |
| Key words: Three Rights Separation qualification right member right right to the use of homestead |
