Reconsideration Of The Construction Of Underground Space Right In China Basing On Confirmation Of Land Right About Community's Underground Garage

This paper investigates the land right of community's underground garage by combining the law of property. In addition, the confirmation of underground garage brings about the author's research on the legal system of underground space right. Underground space fight is a new problem in civil law theory, even property law of China has not yet ensured the legal status of space right. But in reality, underground railways, underground emporium and underground garage are not unusual. The development of cities demands the legal system of underground space fight to adjust it.This paper deems that the land right of community's underground garage can be judged by two principles: firstly, according to whether the underground garage has been listed as residential pool area; secondly, according to the contract between the real estate developer and the owner. Confirming the land right of underground garage demands to obey the rules of precedence. In other words, if a contract which has a title of residential pool area does exist between the real estate developer and the owner, the real estate developer can not traverse the owner's land right of community's underground garage. Contrarily, if the underground garage has not been listed as residential pool area, the land right of it can be judged by the contract. If the underground garage has not been listed of residential pool area and a contract does not exist between the two parties, the land fight of the community's underground garage should be shared by the real estate developer. In allusion to the relationship between underground garage and air space right, this paper demonstrates the legitimacy of regulating to air space right using for underground garage. In addition, comparative study has been done between common law system, civil law system by combing Chinese's property law. This paper establishes underground space fight legal system and puts forward several basic principles of legislation on space right. Finally, this paper makes some legislative suggestion on registration system, the space easement and so on.