A Study On The Sestem Of Land Space Right

In recent years, China has entered a period of rapid urbanization. With rapid urban population growth, the city expands exponentially. Sharp contradictions between demands of rapid urbanization on land resources and scarcity of them are difficult to reconcile. Because of the rapid expansion of urban areas, a large amount of agricultural land was diverted, which has become a serious threat to national food security and ecological safety. Therefore, there is a need to change from traditional extensive land use methods and epitaxial urban development models to intensive, sustainable development model. In fact, with the economic and social development and construction technology, the stock of a huge land space has become important natural resources and social wealth of human being. Reasonable development and effective use of land space is bound to play a positive role in promoting the efficiency of land use and conservation of land resources so as to achieve sustainable development of urban intensification. However, the development and utilization of land space require a sound system as a safeguard. Nowadays, developed countries and regions have put the development and utilization of land space as an important solution to the contradiction between land and human being in the economic and social development and on this basis, established a relatively complete legal system of land space right. In recent years, although several large and medium-sized cities in China have started on the right to development and utilization of land space, lack of complete legal system of land space right system and academic consensus of land space right has seriously hampered the development and utilization of land space. Therefore, a study on theory and practice of land space right is of important theoretical and practical significance.Since ancient times, the land is undoubtedly the most important means of production, "the source of all production and all that exists." Land system changes, which have profound impact on political, economic, cultural and social development of human society, have piloted all social system changes. Land system is rich in content, with land rights as the core. Based on the careful study on and in-depth analysis of historical evolution of land rights system, the dissertation summed up the basic principles of evolution of land right. Such principles are expressed as follows:land rights system is one the most important basic system, whether in political, economic, or sociological sense; in the development process land rights system gradually change from "possession-centered" to "utility-centered"; types of land rights change with social economic development. The paper points out that establishment of land space right is in conformity with historical principle of land rights changes.Land space right refers to the right to the real property established within a certain range above or beneath the ground. Any new rights or regime change are arising in or derived from the practical needs of economic and social development, and land space right is no exception. The rapid development of industry and commerce since industrial revolution has led to the rapid expansion of urbanization and urban population, and hence the rapid expansion of urban construction land. To solve this problem, humans have sought the tridimensional use of land, that is, to seek space both above and beneath the ground. Improvement of construction science and technology provides a realistic possibility for large-scale utilization of land space resources, which is the realistic motivation for the establishment of land space right. Socialization of land ownership, the value conversion of the object of property rights and modern theory of property rights system which values the change of property from "possession-centered" to "utility-centered" constitute the legal basis of land space right system. After the examination of the realistic motivation for the establishment of land space right and legal basis, a comprehensive summary is presented on the establishment process and main content of land tenure systems in both carding civil law and common law countries and regions. Through a comparative study, we can draw the conclusions as follows. First, whether in common law countries or civil law countries, the legal system of land space right is established with the rapid development of industrialization and urbanization, and the prominent contradiction between people and land. Secondly, in those countries and regions, land space right system is established in the context of socialization of land ownership, in which land ownership is under strict restriction. Thirdly, the two legal systems have attached great importance to the statute of land space rights, but the specific names of space right and the legislative system are different. China should learn from two legal systems in the legislation experience of space land rights, and build our country’s own land space right legal systems totally with the actual situation of china’s land space right. For a long time, the development of China’s urbanization is of "pie" type outward expansion, which leads to the drastic reduction of cultivated area. The extreme scarcity of land resources forces us to seek connotative urbanization, actively making use of space both above and beneath the ground to expand our living space, and finding land resources for future use is an important task in China. Since 1949, China’s use of space both above and beneath the ground has been very common practice. Space development and utilization of land before 1979 took underground civil air defense construction as the main form. Over the last decade, in addition to civil air defense projects, other forms of land use of space forms are becoming increasingly abundant. Beijing, Shanghai, Guangzhou, Shenzhen and other major cities have begun to take the city subway, underground Commercial Street as the main land space development and utilization. Development and utilization of land space requires sound legal system as the protection of rights, but China’s current legal system concerning the land space development and utilization is seriously lagging behind, far from meeting the requirements of the tridimensional use of land. So it is an urgent task in the legal construction of China’s land resources to accelerate the land space rights system construction, so as to standardize our land space development and utilization in the light of the promotion of economical and intensive use of land resources, and to achieve sustainable development economy and society.There are three guiding principles for the construction of land space rights. First, the land space right system construction should meet the requirements of intensive use of land conservation and sustainable development; secondly, the land space right system construction should conform to the trend of modern property law; finally, China’s land space rights system should not only absorb legislative experience of developed countries and regions, but also consider the reality of circumstances. Land space right as a bundle of rights is composed of various categories of rights, some belonging to property rights, some belonging to properties creditor rights, and therefore, different kinds of rights should be involved in different legal provisions. Those involved in land claims can be resolved by party autonomy through the adjustment of contract law, so the land space rights system should be provided primarily by property law. In the specific legal rights structure, because space ownership is only of theoretical significance, with no legislative Ontological significance, there is no need to establish space ownership in China’s land space right institutional system; besides, because space easement is relatively simple, and can be adjusted through Property Law easement regime, our land space rights legislation should provide space usufruct of construction land. In the subject of rights, there is no substantial difference between space usufruct of construction land and general usufruct of construction land. There is no restrictions on the subject of the usufruct in Property Law, so like in general usufruct of construction land, natural persons, legal persons and other organizations can legally obtain space usufruct of construction land. The object of space usufruct of construction land is space, and object of general usufruct of construction land must occupy the space outside the scope of other spaces. Overlap is not permitted in principle. As a real property, space usufruct of construction land requires registration, and due to its special object, its registration is also different from the general usufruct of construction land. Effect of pace usufruct of construction land is actually the legal content of pace usufruct of construction land, namely, rights and obligations. Rights mainly include space usufruct, property claims, neighboring rights and disposal. As far as the obligation is concerned, there are obligations to pay premium space, to use space in accordance with the contract obligations, and to protect the environment. The elimination pace usufruct of construction land refers to the loss of rights by law. Space usufruct of construction land is a type of usufructuary, with the same reason for its elimination of the right as that of general usufruct of construction land, namely, expiration of rights subsisting, revocation of the right and the right to abandon by the rights of the subject.In recent years, with the development of the tridimensional use of land in China, disputes and cases around the vertical space development and utilization of land have occurred. Lack of relevant legal system results in unsatisfactory cognizance:on the one hand, the legitimate rights are not upheld; on the other hand, case verdict did not play perspective guidance and normative role to land use. In the empirical research, this dissertation selected three influential cases in the field of land space utilization in recent years, through anatomical analysis of each specific case, to verify the legal system of the land space right established in the dissertation. Meanwhile, through case studies, the dissertation further reveals the necessity and urgency for the construction of legal system of land space right.