Modern Development Of Servitudes System And The Perfection Of Legislation In China

The modern easement system originated from ancient Rome and is the oldest usufructuary right system.Because of its unique value in improving the use efficiency of real estate,it has been successively inherited by civil law system and common law system countries.The easement system has experienced ups and downs in the evolution of the last thousand years,and can still occupy a place in the laws of various countries,and constantly enrich and develop new contents in the economic and social changes.It is with its unique right structure and system security.It's inseparable.Easement can satisfy people's need to use other people's real estate to improve their own real estate efficiency,which is its most basic function.In modern society,easement also plays an important role in commercial competition,planning,environmental protection and other fields.The public easement system,which is in line with the traditional easement,plays an active role in the protection of ecological environment,food security,historical and cultural relics,and provides support in the form of property rights.Chapter one,the system reform and structure adjustment of modern easement.The easement system originated in ancient Rome has formed some basic rules: the easement can not be established on its own property,it must have the interests of servitude and servitude,and it can not require servicemen to assume the obligation of active action.However,with the rapid development of economy and society and the rise of urbanization,modern civil law has made breakthroughs and reforms in many aspects of the basic structure of traditional easement.On the subject side,the subject scope of easement is expanding: from owner to usufructuary,even to lessee;from two real property owners to the same real property owner.As for the object,the object scope of easement is becoming broader and broader,while the space easement and sea easement are in the ascendant.In terms of the content of easement,modern society pays more attention to spiritual satisfaction and enjoyment.The content of easement has developed from material interests to spiritual interests.With the adjustment of the structure of easement,the types of easement have changed,such as owner's easement,business easement,collective easement,protective easement,etc.Chapter II: Reconstruction of easement system.When modern countries succeeded to the easement system of Roman law,there were many innovations in the easement system.French Civil Law refers to the Ladder of Law,dividing the structure of easement into natural easement,statutory easement and intentional easement,in which the adjacent relationship is taken as statutory easement into the code,while the German model transfers the adjacent relationship from the easement system to the expansion and restriction of ownership,which is a great change in the modern easement system.The separation of adjacent relationship and easement contributes to the purity of the easement system and solves the drawbacks of the complex nature of easement under the French monorail system.Another important innovation of easement system is that with the decline of traditional easement and personal easement,public easement or statutory easement has flourished.Although scholars have much controversy about the nature of public easement,the main civil codes(law,Italy,Germany,Switzerland,Russia,etc.)have stipulated this system,which also exists in Anglo-American law and in Macao and Taiwan.Public easement is the upgrading of traditional easement,although it does not require it,it does not mean that it does not exist.The existence of public interest makes up for the lack of interest in the easement,so it still belongs to the structure of easement in general,but it should be regarded as a mixed right of public and private rights.The status of the right to benefit in the easement system in modern society is increasingly important because of the scarcity of natural resources.Although some countries still retain it in the easement,more and more countries stipulate it in the single law as a special or quasi-real right.Chapter III The value renewal of easement.Behind the reconstruction of easement system is the reconstruction of value.Benefit is the primary value of easement.The reason why easement can expand from private easement to public easement is that there has been a leap in its benefit value,that is,human beings pay more attention to social and ecological benefits than to economic benefits.The unique structure of easement can always play an important role in it,especially the role of public easement.Protective easement in the United States has played a win-win situation of public and private interests in environmental protection,ecological construction,and farmland protection,which can be used for reference and transplantation by many countries.Security and order have always been the basic value of law.Human beings never stop pursuing security,from transaction security to social security,from national security to ecological security.Private easement forms a stable long-term or even permanent real estate utilization relationship among the parties through contracts,naturally for the sake of security and order.The flourishing of ecological easement and natural resource easement in public easement provides a useful institutional framework and operational mechanism for food security,natural resource security and ecological security.It makes up for the drawbacks of the compulsory-obedient model of police power,and realizes the complementarity of public and private advantages and mutual benefit cooperation between public and private.Intergenerational equity based on public trust theory and Rawls' justice theory is a new development of traditional civil law equity.The value of easement lies in that it solves the short-sighted behavior of "eating ancestral food and cutting off offspring' grain" through easement of natural resources and preservation of historical relics.Chapter IV is the expansion of the concept of easement.The reason why it is placed in Chapter IV is to find out the "essence" of the long-term development and evolution of easement system and system.The concept of easement is rooted in its unique model of legal rights,and the expression of the right model of easement reflects the adjustment of the legal relationship between two real estates,essentially in order to improve the efficiency of the use of one real estate and limit the use of another real estate.This model of legal rights has formed a way and tool to think about problems,a legal technology,and a paradigm to solve problems.It is precisely because of the concept contained in easement that it has considerable expansibility and obvious transboundary nature.The transfer of land development right and volume ratio in the United States are linked with the increase or decrease of urban and rural construction in China and the transaction of land tickets,which are interpreted by scholars as the application of the logic and legal right model of easement.Su Yongqin,Xie Quan and other scholars also believe that under the condition that the law does not restrict the "servitude",easement can play the role of supplementing superficies and even agricultural rights.In fact,they believe that the easement model can serve as a general model of usufructuary rights.The concept contained in this model is win-win cooperation,that is,the real estate inter-subjects can cooperate through mutual benefit on the basis of mutual respect for property rights.Now we share a win-win situation,which is the most obvious in American protective easement(agricultural protection easement,historic preservation easement,environmental protection easement,etc.).The effect is very prominent,which can be used for reference by some countries.Chapter 5: Analysis of the current situation of easement in China.In the long-term development process,the social function of easement can be roughly summarized as the following: to enhance the economic utility of the best use of things,to make the use of the relationship between real rights,to reduce transaction costs and encourage transactions.Through the application of easement,we can make up for the shortcomings of adjacent relations and the shortcomings of urban and rural planning.The function of easement also lies in adjusting commercial competition,replacing the system of expropriation and tort liability,making up for the deficiency of the system of condominium ownership,and restricting and supervising public rights.China's easement system implements the principle of high degree of autonomy of will,which can fully realize the above functions.However,in practice,there is a double shortage: the system of people's needs is not stipulated,and the existing system is not fully utilized by the people,which makes the easement stay on paper as a normative right.The reasons for this situation are not only that the thinking of land in legislation but also that of real estate leads to the transformation of real estate servitude into "land" servitude,but also that the management thinking resulting from the government's substitution of the market for the decisive role of resource allocation in real estate control inhibits the thinking of rights.Moreover,the long-term absence of usufructuary right after the founding of the People's Republic has led to the majority of the people to realize the servitude by means of creditor's rights.Function(creditor's right thinking replaces real right thinking),and the excessive expansion of the application of adjacent relationship further reduces the living space of easement.In terms of the legalization of the easement system,although the relevant departments and public enterprises and the public have urgent needs for the public easement,the view that only the intentional easement is recognized and the legal easement is denied occupies the peak in the legislation;even if the public easement is regarded as a public right,no public law scholars have proposed to establish the public easement system in China and rise to legislation.Civil law scholars focus on whether the right of residence should be included in the Code,even if it is included in the Code,it is only of potential application value.The Western sources of the system show that the system is in decline;and the public easement has a strong demand in many aspects;the practice of western countries also proves this point.The absence of public easement in the easement system leads to the separation of the value of easement and the atrophy of its function.In theory,the radiation effect of the green principle of the civil code can hardly be realized through easement.In practice,the construction of ecological civilization in China lacks an important policy tool.At the time of compiling the civil code and possibly entering the code,we should systematically rethink and restructure our servitude system.Our country should pay attention to the systematic construction of servitude.Its significance lies in that it is helpful to improve the system of utilizing real estate in our country,the system of autonomy of real right,and of course,the system of servitude in our country.Chapter Six,the path of modernization of easement system in China.First of all,we need to explore local resources and find valuable heritage that can be used today from a long history of civilization.For example,the pawn right is the usufructuary right of construction,which can make up for the defect that the existing usufructuary right of our country is only the usufructuary right of land.Secondly,in order to match the name with the reality,compared with the name of real estate easement changed from easement,the construction of real estate easement in our country still needs "comprehensive management" : to recognize maritime easement,space easement and self-service.Again,we should activate the source of the system,that is,expand the subject of the establishment of easement,enrich the way of the establishment of easement,and improve the stacking of easement.Thirdly,in order to improve the system of alteration of the loss of easement,we should recognize not only the legal act,but also the way other than the legal act,such as the acquisition of limitation.The current registration antagonism can be maintained in the way of publicity,but the registration validity doctrine should be gradually promoted.Finally,we should improve the easement system,that is,after the people's easement entered the code,we should consider recognizing the status of public easement in civil law.Chapter VII: Legislative proposals for the revision of easement in China.Under the background of the compilation of the Civil Code,the legislature should consider systematically how to improve easement and modernize it in China.The existing easement can be changed into real estate easement(i.e.private easement)and the principled provisions of public easement can be added at the same time;or on this basis,personal easement and easement can be jointly constituted into a new chapter of "easement",that is,private easement and public easement.For the current part of private easement to focus on the improvement and enrichment,the paper provides the amendment provisions and reasons.As for the public easement,the paper suggests that the contents closely related to civil law and civil rights should be stipulated in principle,and other contents should be stipulated by separate law.