On Space Superficies

Superficies are an important usufructuary right in the civil law of the continental law system and space superficies is one of superficies established on the space or the land. During the legislation of Chinese Property Law, scholars have done some researches on the related space right which are not, however, deep-going in general. The dissertation tries to make a thorough study on the right, reveal the special complete picture of types of the right and offer useful reference for the construction of Chinese space usufruct of construction land. The fundamental viewpoints of the dissertation are as followings. Space superficies refer to the right to use space for having buildings and other constructions in a certain spatial scope upon or under other's land. Introducing space superficies in the course of urbanization has practical significance. In the system of the space right, "space utilizing right" is a universal concept which should be given definite classifications. The object of space superficies is "space". As long as the using spaces do not overlap, several superficies can be set up on one land that can not disobey the principle of one ownership on one res.Up to now, the pattern of the land ownership goes through three variances. But serious urban problems and the characteristic of urban lands bring forward the space right. Legislative models of different countries are divergent. Which model the country chooses depends on the legal tradition and social reality. We should establish the system of our space superficies in the correspondent chapter of usufructuary right of Chinese property law. The character of space superficies is not a single usufructuary right but a category of superficies which is not different from common superficies in quality but different in quantity. The essence of space superficies is "the right of using other's space" but not of having buildings on other's space. The application purpose of our space usufruct of construction land should be defined as "having buildings and other constructions". The particularities in the enactment and acquisition of space superficies are as following: the spatial scope should be defined, the enactment purpose is subject to buildings and other constructions, special agreements should be made to the part outside the defined scope and the third party's consent who has the use usufruct right in the defined scope should be asked for. The register of space superficies should be on the premise of the mensuration of the spatial scope. Its registering procedure and proceedings are the same as the common superficies, which must include the register of special stipulations of the spatial scope and the land use however. The rights of the obligee of Space superficies mainly consist of the use usufruct right, the adjacent right, the right of disposition, the preemptive right, the petition right on property and so on. The obligations mainly comprise paying ground rents, using the space according to the stipulations and so forth. Space superficies would be extinguished both by the same reasons as other real rights and by its own special reasons. The legal effects will be followed such as the recall right of the obligee of space superficies, the purchasing right of the space owner, the petition right for compensation of the obligee of space superficies, the petition right for repaying useful expenses and the legal renovation of the existing period of space superficies. Results of the tridimensional use of land will lead to a phenomenon that several rights coexist within one space and disposal principles should be established. Interests conflict between adjacent spaces can not be resolved completely by using the principles on traditional plane adjacent relationships. The problem should be resolved by the application of analogy of the principles on traditional plane adjacent relationships, establishing and developing of new principles, setting the space easement, making a contract between spatial adjacent related persons and other various approaches. Finally the dissertation suggests that the space usufruct of construction land should be accepted in Chinese Property Law; the public nature of Chinese land should not preclude the establishment of the right; the legislative expression of the right should be "individuation"; the object of the right should be defined to "a certain spatial scope"; the user should be granted a necessary spatial scope to excise the right normally; registering principles of the right and disposal principles of coexisting relationship of space rights and spatial adjacent relationships should be setting up etc.