Studies On Easement

Easement, a traditional usufrucetuary right of real right, comesfrom Roman law and is now widely accepted by countries ofcontinental law system. However, China's present civil law has notany definite provision concerning the easement. In the constitution ofreal right law of our country, whether to accept easement and how toprescribe it, are problems worth discussion. For this reason, thisdissertation tries to retrospect easement to the ancient Roman law,discourse on the developing tendency of modern territorial serviceownership system, demonstrate the necessity of establishing territorialservice ownership system in China, and then provide some advice onthe establishment and option of such system in China, expecting thatthe constitution of territorial service ownership system could furtherpromote Chinese real right legislation. The whole dissertation consistsof four parts: Section one gives a general introduction of easement. It discussesthe unique legal character of easement in a historical respective andpoints out that the easement is an independent jura in re aliana whichis subordinate and impartible. The easement exists in the land ofanother people for the convenient use of one's own land. Section two discourses on the developing tendency of easement.As a traditional usufrucetuary right of real right, the easementdevelopment changes with the transformation of society. With therapid expansion of economy and profound innovation in the theory andpractice of real right law, the traditional territorial service ownershipsystem inevitably changes. Compared with the tradition one, moderneasement has a wider scope in its subjects and objects and is richer incontent, while the principle of performance is also changed. Section three argues the necessity of establishing territorialservice ownership system in China. Present civil laws of China haveno definite formulation on easement. However, many problems arisingfrom our life are relevant to the easement. The development in practicechallenges the legislation, and therefore the establishment of territorialservice ownership system in China is necessary. The present laws ofChina only prescribe the neighborhood rights which are deficient toeffectively regulate the utility of land, however the easement with itsunique characteristics could be a remedy. Legalization of real right is abasic principle of the real right law. However, with the transformationof social life and the increasing complexity of social relation, thisprinciple is challenged in practice. Easement, with much moreflexibility, is not a violation, but a supplement to the legalization ofreal right. Meanwhile, the easement contributes to the more effectiveutility of land and other real estates and has the particular function ofsupplementing the "public regulations" with "private agreements". Section four discusses the practical significance of prescribing theeasement under the public territorial ownership system of China andgives some basic ideas for setting up this territorial service ownershipsystem. The legislation of easement in our country, as well as adoptingthe traditional territorial service ownership system and absorbing theinnovation and experience in modern times, should accord with thecircumstance of our country. Whereas, the author points out thatseveral problems need our attention in the establishment of territorialservice ownership system and proposes some advice concerning thename, legislation model and main content of the easement. Meanwhile,considering that the all-round use of land produces the right to use thespace above or under the land of another people for one's own intereston his certain real estate, this dissertation considers that the spatialeasement should be written into real right law.