On The Research Of The Main Issues Of The Right To Use The Land For Construction In The Property Law Of China

Land, as the most important material in life and production, is the main object of the governance of Property Law. There are a variety of rights in relation to land in existing legal systems and judicial practices of our country, including the right to the contracted management of land, the right to use state-owned land and the right to use house sites and other rights. As a result of the combination of rights in relation to land with houses, houses vested with different kinds of rights in relation to land emerge, including commercial houses, houses owned by the state that has already been sold, economical house for people with low-level incomes and houses built on house sites. Different rights in relation to land mean different rights and obligations to the holder of rights. The Property Law of our country, adopted in March, 2007 and came into force on Oct. 1 in the same year, has integrated and systemized the existing rights in relation to land, and thus a system of property rights concerning land has formed including land ownership, land usufructuary rights and land rights for security. The right to use the land for construction is one kind of usufructuary rights and the major achievement in the reform of the system of the right to use the land for construction. Property Law stipulates the concept, creation, transfer, renewal and other contents in an all round way with integrity and originality. This article deals with several issues concerning the right to use the land for construction in Property Law of our country. The author, in terms of the judicial practice of the system of right to use the land for construction, compares the system of the right to the use of the land for construction with right of the use of the land in the civil law system and the estate of the common law system. Through the comparison, the author made an analysis of the history of the practices and systems concerning the right to use the land for construction, as well as several issues concerning its concept, the right to disposal of the right to use the land for construction and its status in the system of usufructuary rights. Besides, the author, through retrospect, reflected the relationship between the contract of the creation of the right to use the land for construction and its registry and discussed the nature of the contract of transferring the right to the use of land for construction and its bearing on judicial practice. On the basis of summarizing different opinions of scholars both at home and abroad, the author put forward his own opinion in the hope that it could provide further reference for the improvement of legal provisions concerning the right to the use of land for construction.Apart from the introduction and conclusion, this article is divided into four parts. The first part illustrated the concept of the right to use the land for construction, including the argument over the name of the right to use the land for construction in property Law, the interpretation of the concept and the comparison between the right to use the land for construction and the right of the use of land in civil law system and estate in common law system. The second part discussed the reason why the right to use the land for construction can be disposed of. The author disagreed with this opinion and argued the right to use the land for construction can be disposed of in theory and practice. Theoretically, the concept of disposal in property law and the subject of disposal in the right to use the land for construction have been analyzed and a conclusion that the right holder has the right to dispose of his own right. Practically, laws and regulations have been enumerated including the existing prescription of the right to disposal of the right to use the land for construction. The third part had a deep look into the process of formation of the system of existing usufructuary rights and made an analysis of the status of the right to use the land for construction in the system of existing usufructuary rights as well as the property rights as a whole. The fourth part discussed the creation of the right to use the land for construction, mainly including the role of registration of this right in its creation, the relationship between registration and the effectiveness of the contract of transferring the right to use the land for construction, the nature of the contract of transferring the right to use the land for construction and its bearing on judicial practice.