A Study Of The Public Right Of Way In Contemporary China Cities

The paper,taking the public right of way as object of study,road passage practices in contemporary China cities as range of study and research of right theory as basic paradigm,reflects defects of legal system for public right of way in China and its causes by comprehensively employing legal sociology and methods of comparative analysis.Presents that legal system of the public right of way and theoretical research in China shall be established in the public right of way;specific theoretical analysis on legal and establishment on relevant legal system shall be developed based on the public right of way.Research under such paper aims to integrate current research theories on the public right of way in China,and establish theoretical system on the public right of way to provide theoretical foundation for legislative problems such that interpret and solve the “public right of way” and“priority” of passage,tamp theoretical basis,further enrich philosophy research on department law in China,and enrich and refine type of right and its connotation in China.Meanwhile,the paper keeps a foothold on human's specific rights,works in concert with the topics on livelihood issues concerned and safeguarded by China in its transitional period,and settles theoretical basis for legal institutions improvement on road transport field in China.The paper conducts jurisprudence analysis on relevant problems of the public right of way from perspective of analyzing right,defines connotation of the “public right of way”,introduces and explains why and how the public right of way become a kind of right and become a newly-developing right.As basic instinct need for natural person,road passage shall be reflected as natural rights,legal rights and fundamental rights.Body of the public right of way is natural person;legal person and other right groups could not be the body of the public right of way.Natural person could go through safely,conveniently,comfortably and smoothly.Natural person rightfully and appropriately occupy road when they walk on the road.Subjects of duty of the public right of way are nation and natural person.Nation has obligation to respect,realize and guarantee the public right of way.Natural person has the obligation to observeII traffic regulations,and do not violate prohibitive and restrictive provision of “shall not impede”.Object of the public right of way are order,safety and efficiency,which are the foundation for subject of the pubic right of way to realize road passage behaviors,and the purpose pursued by road passage behaviors;their realization could promote the interests and values of road passage required by subject of the public right of way,and coordinate the relationship among three factors to reach social civilization road passage status.Conflict of the public right of way is a kind of right conflict,which happens among the subjects who have the right to use pubic road when they use it due to ambiguous stipulation on border of rights.Primary cause of conflict of the public right of way is the conflict of public road passage interest,and its direct cause is the ambiguous stipulation on the border of the public right of way.Allocation of the public right of way is one of the ways to solve conflict of the public right of way.Allocation of the public right of way has hierarchy;department taking the responsibility to allocate the public right of way is department with public power;object of the public right of way allocation is right of use of road resources;allocation of the public right of way is conducted under the guide of legal right,legal obligation and legal liability regime.Allocation of the public right of way shall follow priority principle of road passage habit,principle of equilibrium of resource-right-order,and principle of acting according to circumstances.Priority and restriction of the public right of way are the inevitable results of allocation of the public right of way.Right of way could reflect object's demands and subject's rights and interests on road passage,and maintain rights and interests on road passage for society and nation.Right of way could be divided into absolute right of way and relative right of way based on different contents of right of way and through different legislation ways.Absolute right of way will not only enjoy priority of road passage,but also could exempt some legal liabilities on road passage.Relative right of way will enjoy some priority right based on specific road passage situations.Restriction of the public right of way is the inevitable requirement to solve conflict of road passage,and is the system to reach the right of way,which could realize rights and interests of society and nation on road passage.Restriction of the public right of way could be conducted from two aspects of qualification of the public right of way and behaviors of the public right of way.Restriction of the public right of way shall follow principles of legitimacy,legality and appropriateness.Right without remedy is not right.From macro claim for rights to micro infringement damage compensation application on the pubic right of way,all decide that remedy of the public right of way is not a kind of close and unitary remedy method.For right groups formed based on the public right of way,their rights of road passage or remedy for rights and interests shall be realized by different remedy methods.When the public right of way is infringed,legal remedy shall be used to solve disputes of the public right of way,and to recover the public right of way which has been infringed;when rights and interests of road passage are damaged,legal remedy or self-protection shall be adopted to recover the rights and interests of road passage.When the public right of way is not safeguarded,relevant public opinion expression mechanism shall be used to express appeal on the rights and interests of road passage,realize the translation from relevant legitimate interest into legal rights,and reach the transform from legal rights of road passage to realistic power.Predictable innovation under such paper is the choice of research approach at first.Research on the public right of way could be general study which meet the character of road passage behaviors only basing on paradigm of theoretical research on right and starting from the perspective of human nature,human demand and human rights;then logical theory introduction on the “public right of way” could be conducted;study and establishment on theoretical system for the “public right of way” could be developed;current road traffic institution could be interpreted;and scientific security system for the public right of way could be built on this basis.