On The Legislative Improvement Of Servitude System

As a kind of ancient usufructuary rights, the easement originated from ancient Rome nearly three thousand years ago. The most of the continental law countries and common law countries have succeeded the easement, which plays an important role in practice. In China, the easement didn't develop for a long time, even once disappeared into silence. With the development of Chinese society and economy, the real estate have adjusted themselves widely and varied. In order to meet the demand of economic and social development, the property law specifically defined the easement to compensate for insufficient adjacent relation. In consideration of Chinese conditions and legislations of the easement of other foreign countries, the paper discusses the strong points and weak points of the easement defined by Chinese property law by comparing Chinese easement with that of other countries, and puts forward some specific proposals for improvement of legislation through systematic research.In comparison with other usufructuary rights, main characteristics of the easement are conventionality, dependency, indivisibility and time limit. The traditional easement system has developed greatly today, which has manifested the expansion of main body, the enrichment of contents, the enlargement of functions, changes of primary characteristics. The easement system after three thousand years remaining and fade away, from its independent values and functions. the easement compensates for insufficient adjacent relation numerus clausus, the ecological environment protection and active market economy. The thesis analyses the functions of the easement in details and demonstrates the necessity of legal system perfection of the easement legislation by combining with Chinese social conditions.The thesis discusses the strong points and weak points of the easement defined by Chinese property law, and puts forward the specific aims of improving legislation. Legislation improvement should base on public ownership of land as fundamental realities of our country, and take it as an important factor into considerations. The paper raises concrete proposals for legal perfection in the light of some weak points of concurrent legal system from seven aspects respectively, the application scope, registration, content, right of real claim, acquisition, extinguishment, categorization of the easement. The following are tentative proposals:The easement will have wider application scope to meet diversified demands of the social practice; Since the real rights should be registered, the easement as well should without exception in terms of registration effectiveness; Rights and obligations of owners of dominant land and supporters of servient tenement should be clearly defined; When the easement is infringed, right of the real claim of owners of dominant land shall be confirmed; Inheritance acquisition and prescription acquisition shall be acknowledged; Extinguishment causes of the easement shall be more specific rather than too simple in terms of property law; Categorization of the easement should be clearly defined, including public easement, space easement and ecological easement, restrict competition easement.To activate the easement system in China, we must learn from legislation experience all over the world against the background of public ownership of land as fundamental realities of our country, comprehensively analyze the problems of application of the easement system, further improve the legislation to lay solid legal foundations for making full use of utilization value of the land and coordinating interests concerned parties.