| With the development of industrialization, the conflict between finiteness of land resources and demand for living space by people is enlarged day by day. Especially in our country, there are too much people which make land resource scarcer. Therefore, there are scholars who have suggested establish law system of right of space, which will make use of land by cubic way. For reasonable utilization to land and space, there are great disputes generated on whether to establish a new kind of law system called right of space or modify and improve present land use right system. This thesis will make an exploration on the problem and setting up more scientific law system centering on reasonable utilization of land and space to provide reference for the resolution of relevant problems on legislation in the future, judicature and practice.This thesis is divided into six sections in all.The first section is the research on right of space by the scholars at present. 1 Generation of right of space. 2 Definition of right of space. 3 Classification of right of space: the classification made by domestic common scholars to right of space includes: space owning and utilization rights, right of spaces above and below earth surface, transferable and non-transferable right of spaces, right of spaces with and without time limit. 4 Constitutive systems and its content of right of space: for constitutive system of right of space, there are two factions formed in the academic circles. 5 Whether the nature of right of space is the two theories of a single property using right as positive theory and negative theory.The second section is stipulations relevant with right of space in Chinese laws. 1 Stipulations relevant to right of space in other laws and rules within our country mainland. It refers to: the underground space of cities refers to the land below the earth surface. Using right got is the right of using the land. Before issue of Property Law, system of right of space has not been confirmed within the country. While establishment divided by layers of land using right has been provided in advance. 2 Stipulations relevant to right of space in Our country Taiwan area. In Our country Taiwan area , there hasn't committed or confirmed right of space in law.The third section is the about stipulations relevant to right of space in laws. 1 Stipulations relevant to right of space in the national laws belonging to continental law: it introduces stipulations relevant to right of space in the civil laws of France, Germany, Japan and Switzerland. In the civil laws of France, Germany, Japan and Switzerland, there is no concept of right of space. 2 Stipulations relevant to right of space in the national laws belonging to Anglo-American law: it has introduced stipulations relevant to right of space in American and English laws. There has established law system of right of space in true meaning in America. Britain acknowledges that the sky above the land could become single right object independently, but there is no concept of right of space. 3 Through comparison and research on the stipulations relevant to right of space between continental law and Anglo-American law, it points out that law system of right of space is only established in American law, while the called law system of right of space is not established in the laws of other countries.The fourth section is the necessary understanding to space and right by the author. 1 Space: it is a kind of basic form of motion of matter in philosophy. Space could be measured. 2 Classification of space: space could be divided into natural space, manmade space and virtual space according to whether is has natural property. Taking the upper limit of atmospheric layer as the division, the natural space could be divided into outer space and inner space. Inner space could be divided into space far from the earth surface, space near to the space and surface space according to the distance between inner space (within 100 kilometers above the earth surface) and the earth surface. 3 Space in the Property Law: the space in the Property Law belongs to the earth surface space or to say part of the earth surface space, while manmade space and virtual space are not the one in the Public Law.The fifth section is Right of space and land ownership right and using right. 1 Right of space and Land ownership right: we could get the concept of land ownership right refers to that the obligee has the right to occupy, use, make benefits and dispose the land according to the law. That is the ownership right of land area above the sea level or within horizontal scope the civil subject will enjoy. Vertical scope of land ownership right refers to the right above and below the earth surface. It includes space (space above the earth surface) and land. Laws of each country including Property Law recently drawn up in our country haven't made definite stipulations on the vertical land ownership right. The author thinks that the vertical land ownership right refers to a height above the earth surface not exceeding 3,000m and the depth below the earth surface not exceeding 3,000m which is more reasonable. That is to say the scope of vertical land ownership right includes the space with a height of 3,000m above the earth surface plus the space with a depth of 3,000m below the earth surface. 2 Right of space Land using right. (1) The concept of land using right. Land using right is a kind of property ownership right. Seeing from generality, any single person will enjoy land ownership right. The occupation, utilization and making profits on the land all belong to the land using right. The called right of use is to be compared with ownership. Beneficiaries enjoying land using right could occupy, use and make profit on the land set up for them freely, but the land will not be owned by them. They could not dispose the land according the willingness freely. (2) The right scope of land using right: it is also divided into vertical scope and horizontal scope. At present, the vertical scope of landing using right has not been equal to the vertical scope of land ownership right. The vertical scope within land using right could be certain space and land above and below the earth surface, it also could be certain space and land above the earth surface or certain space and land below the earth surface. The vertical scope of land using right will be different according to the right set up. (3) The tight of space in The vertical scope of land using right is land using right (4) The division of land using right: the land using right has been divided by the using goal and the function according to Land Management Law and Property Law. Property Law has added a new kind of land using right as land service. It is suggested that the present Land Management Law be modified by adding land for residence in the land category. The land in the whole country should be divided into the land for agriculture, construction, residence and other land no utilized. (5) Re-division of the land using right: Property Law has stipulated that layering establishment could be achieved within the scope of vertical land using right for the using right of land for construction. Within the scope of vertical ownership right owned by the collective, land using right could also be established by layering. From the analysis on land ownership right and land using right theory, there exists a condition to set up using right of land for construction above or below the earth surface within the land owned by the collective, on which the contracting and operation right has been set up. The present land using right system for construction is a kind of using right on the land owned by the state. If it is wanted to establish land using right on the land owned by the collective, the modification of definition of land using right for construction and relevant law stipulations must be done. The author has provided corresponding modification suggestions at the same time.The sixth section is that right of space should not be established in Property Law. |
