Research On The System Of Right Of Way

"Travel" is one of the basic needs of human being, which expressed as "the traffic demand "in the whole social organizational systems. From the standpoint of the "subjective-objective" relationship,the satisfy to the demands is the interests of subjects. Therefore, the reification of interests shall be available for public access uses on a variety of "Road". Lacking of motivation and capacity, effective supply of public road transport resources must mainly rely on the State and Government. The concept of "right of way" and the system right of way start to rebuild, which aim to reflect and regulate some basic relationship such as the rights to demand for "travel". However, when we view the development of transport and transport rule of law, we will find expound the legitimacy and feasibility of the "right of way" become the red line in the article.After we define the concept of right of way, explain a type of right become a basic clues. Legal principle of right of way, rights pedigree position and, basic framework of the legal system display the characteristics of interpretation.The full text of the chapters are divided into five parts:"Introduction","rebuild the concept of right of way","the construction of jurisprudence in right of way","the right of way in rights system","Empirical review:Type of Thinking ",and the specific contents are as follows.In the chapter of "Introduction ", firstly, the reason it prompt the right of way research is that the study is belong to the theory of "case studies "and "itself studies" rather than the simple value study and washy study. At the same time,the study also belong to Traffic (Administration) Act Study which known as fad-ministrative law and administrative department or special administrative law research.In the two areas, the "right of way" study has an important worth. Secondly, made a detailed literature review, On the one hand, reveal the deficiencies in both form and substance-oriented in right of way study. On the other hand,reveal right of way study the similarity and difference about between "public trust doctrine" in Common Law and "public property theory" in Civil Law. Thirdly, because of the particularity of department Administrative Law, this article adopt a multidisciplinary or interdisciplinary research strategy. Digest nourishment on the traffic engineering, traffic sociology, transportation economics, as well as transportation planning and management disciplines as much as possible. In the chapter of "rebuild the concept of right of way", made two theoretical preparations for the concept of right of way. On the basic of concepts defined on right theory(two traditional,two approach, and two type of the concept) and important related concepts ("Travel","transport","transportation","Road","TDM:Transportation Demand Management","traffic law","public property law"), it definite the right of way as the right to use a variety of public road transport resources, and the core in "reasonable traffic demand", Specifically, it’s a Collection of benefits, rights or privileges in the premise of limited public resources, we must meet the traffic demand, protection the passer’s life, property safety, and free, equality to use public road.The third chapter of "the construction of jurisprudence in right of way" is an important chapter, That is, from the internal perspective we analyst the legal principle of "right of way" in four main components. First of all, object of right of way "road" is a variety of public road transport resources, specifically, provide the public use of the various transport line facilities,and Minimum of public transport and essential services. Second,"passers-by "is the main natural person or a natural person groups.Third,the system of the obligor of the right-of-way, which composed by National-all levels of government-the traffic departments, transportation pass and institutions or other NGO organizations, road and bridge and urban rail operating companies, transport enterprises, and passers-by itself."Passers" refers to a natural person or a natural person groups as traffic demand subject, which possess four characteristics. Third, the right-of-way obligor system, which Composed by National-all levels of government-the traffic departments, transportation pass and institutions or other NGO organizations, road and bridge and urban rail operating companies, transport enterprises, and passers-by itself.Fourth, Specific rights in the system,which divided into four groups of the broadest sense of the right of way, the broad right-of-way, narrow right-of-way, with the most narrowly defined right of way.In the fourth chapter, expedite from four aspects of external perspective, first of all,from the between liberty and social right we can pointed out that the properties of the social rights is significantly more than the properties of the freedom right,that is, Country and the government needs to take action, take the initiative to supply, but also has the property of the freedom.Second, another joint that pointed out a typical representative of the traffic as the payment for administrative and welfarism,and it has the conditions for passers-by to entitled, so,that why it become an important form of property, has the property of a part of the property.Third,compare the figure between right of way and right of housing, the article pointed out that the basic needs of both rights-based man "live" and "travel" can be derived from "the right of adequate standard of living" in International Charter of Human Rights,but The institutionalization of the right to housing and the level of attention is much higher than the right of way. Fouth, from the substantive comparison between right of way and right of freedom to movement, Find out the most biggest commonality is that we can find foundation in basic needs, and can be derived from the right of personal liberty, however, the right of freedom to movement is more significant in property of freedom right and the right of way is more significant in property of social rights.In the chapter of "Empirical review:Type of Thinking", Firstly, Combing transportation history and traffic legal, utilize Weber’s means of "idea type", build a "politics-rule type ","economic-security type" and "Human-free type".Secondly, inspect our current legal situation transportation from static and dynamic, In the static point of view pointed out some insufficient.In the dynamic investigation, pointing out that China’s current traffic law, through a comprehensive analysis of more than one hundred typical cases of right-of-way retrieved from the "the Chinalawinfo judicial cases", Base of CNKI and Net Resource, Again, as a result of the investigation and analysis, the article pointed out that China’s current legal system in right-of-way, remains a few "politics-rule type" characteristics, emerges some idea of "Human-free type",but Generally speaking, China’s current legal system in right-of-way is on the stage of "economy-safe type", and have much room to develop.