“三权分置”下农民宅基地流转的机制研究

On the Mechanism of the Circulation of Peasants’ Homesteads under the “Separation of Powers”

摘要: 我国农村发展政策和农村发展历史变迁，使农民对于农村形成了“守宅耕种”的农耕模式，其要求宅基地发挥“居住保障”的功能。宅基地对农民具有的“保障功能”和“福利性”，决定了宅基地权利(无论是物权还是债权)不能单独流转。“房地分离”理论不符合房屋与土地的天然附合，“房地一体”的天然属性决定了房地权利必然一并流转。房带动地流转成为“三权分置”下宅基地流转的路径选择。以对浙江省象山县宅基地改革的实践调研为基础，明确了“确权是基础、赋能是核心、机制是关键、保障为根本”的理念，并以此为基础对农民宅基地流转进行了规则建构和机制完善。

Abstract: China’s rural development policy and the historical changes of rural development have made farmers form a farming model of “keeping their homes and cultivating” in rural areas, which requires homesteads to play the function of “housing security”. The “guarantee function” and “welfare” of homestead land for farmers determine that homestead rights (whether property rights or creditor’s rights) cannot be transferred independently. The theory of “separation of premises and land” does not conform to the natural attachment of houses and land, and the natural attribute of “integration of premises and land” determines that the rights of real estate must be transferred together. Housing driving land circulation becomes the path choice of homestead circulation under the “separation of powers”. Based on the practical investigation of the homestead reform in Xiangshan County, Zhejiang Province, the concept of “right confirmation is the foundation, empowerment is the core, mechanism is the key, and guarantee is the foundation” is clarified, and on this basis, the rules for the circulation of farmers’ homestead are constructed and the mechanism is improved.