宅基地使用权取得的法律结构

关于宅基地使用权的取得,《物权法》存在法律漏洞。填补这一漏洞的方式为类推关于土地承包经营权的法律规则,设定该权利取得的法律结构。农户取得宅基地使用权的法律结构以农村村民的成员权为逻辑基点,以合同机制为逻辑线索,具体构成为:农村村民行使成员权与其所属集体经济组织签订的宅基地使用权合同,该物权合同以行政审核与审批为生效要件,宅基地使用权因合同生效而当然设立,不需要履行登记等其他程序。

Legal Structure of Acquisition of the Using Right of Rural Housing Land

There is a legislative deficiency in the Property Law concerning acquisition of the using right of rural housing land.The method to make up the deficiency is to set up the legal structure by drawing an analogy with that of the acquisition of the contracted land management right.The legal structure of the acquisition of the rural residential land-using right which is based on the membership right of the rural residents and follows the mechanics of concluding and performing a contract consists of that the rural residents enter into the contract of the using right of rural housing land with collective economic organization by exercising the membership right which will not take effect unless the procedure of approval by the government is followed.The rural residential land-using right is set up automatically due to that the contract for transferring property right becomes effective and the procedure of registration is not required.