On The Easement Effectiveness Of The Real Right Law Of The People's Republic Of China And The Registration Confrontation Application

Easement means the right of land owner or land user, according to the contract, be entitled to utilize the realty of someone else so as to enhance the efficiency of his own realty. The one's own realty shall be"the dominant tenement", and the realty of someone else shall be"the servient tenement". The easement, stipulated in the Real Right Law of the People's Republic of China, can not only adjust the utilization of realty , but also can realize the benefits of different Parties. Thus, the Real Right Law of the People's Republic of China stipulates the easement in one special chapter.Consisting of three chapters, this paper will research and analyze the easement of our country and improvements of legislation from the following aspects, prescription of easement, effectiveness of easement regulated in the Real Right Law of the People's Republic of China and the practical significance of the easement registration of confrontation and measure of improvement.The first chapter deals with the prescription of the easement, which is divided into four sections.The first section introduces the meaning of easement. The easement is a dependent real right, belonging to the usufructuary right in nature. It is the right of land owner or land user, according to the contract, be entitled to utilize the realty of someone else so as to enhance the efficiency of his own realty. The one's own realty shall be"the dominant tenement", and the realty of someone else shall be"the servient tenement". Easement can be classified into different varieties according to different criteria. According to the means of fulfillment, the easement can be divided into positive easement and negative easement; according to the nature of the dominant tenement, into village easement and city easement; according to the contents, into right of way, passage, current, ventilation, light, water, view, etc.; according to the form of expression, into continuous and non-continuous, apparent and unapparent easement. The classification is valuable to help us to understand and use the easement accurately. The second section introduces the legal characteristics of the easement. It has five legal characteristics as followings: 1. Easement is the real right to utilize the realty of someone else; 2. Easement is to enhance the efficiency of one's own realty; 3.Easement is established according to the contract, but it can't contain other usufructuary rights, and the easement shall be entered into written contract; 4.Easement doesn't use the possession as element; 5. The establishment of easement can be either onerous or voluntary.The third section is the introduction of the origin of the easement and the main characters of the easement of other countries or regions. Firstly, it introduces the origin of easement in Roman Law briefly. Secondly, it talks about the easement of other countries or regions such as Germany, France, Japan, Taiwan, common law country.The fourth section introduces the easement establishment of China and the reference of easement of other countries or regions on Chinese easement law. It has always been controversial about whether to stipulate easement in the Real Right Law of the People's Republic of China. Some scholars argue that it can be included in adjacent relation, so the real right law needn't regulate the easement. While the author thinks that the adjacent relation can't include the easement. The adjacent relation is the basic adjustment of the utilization of real estate; while the easement is based on the mutual contract, to utilize the realty of someone else, so as to enhance the efficiency of one's own realty. There are many differences between easement and the adjacent relation. They play roles in different areas. It is obvious that the easement should exist independently. After stipulating the easement into The Real Right Law of the People's Republic of China, the regulations can not only adjust the utilization of realty , but also realize the benefits of different Parties. Thus, the Real Right Law of the People's Republic of China stipulates the easement in one chapter particularly. When drafting the Real Right Law of the People's Republic of China, we studied from Japanese law and regulation, and finally stipulated"easement"in the fourteenth chapter, but we didn't stipulate"personal servitude".The second chapter studies the effectiveness of easement in the Real Right Law of the People's Republic of China, which consists of three sections.The first section studies the acquirement of easement. The first item in article 157 of the Real Right Law of the People's Republic of China stipulates"for establishing an easement, the parties concerned shall enter into a written easement contract."Therefore, the Real Right Law of the People's Republic of China admits to establish easement in written contract.The second section studies the rights and obligations of easement holder and servient tenement holder. It discusses in details from the following four aspects: right of easement holder, obligation of easement holder, right of servient tenement holder, obligation of servient tenement holder.The third section discusses the demise of easement. There are various reasons, including: the disappearance of real estate, the levy of real estate, expiration of the right of easement holder or servient tenement holder, merger of the dominant tenement and the servient tenement, rescission of easement contract, expiration of easement or extinction conditions of the contract, the easement holder abandoning the rights, the parties concerned failing to enforce the right or the court declaring it invalid.The third chapter discusses the significance of registration confrontation of easement in our country and perfecting measures. This chapter is divided into two sections.The first section studies the existence of registration confrontation of easement in our country. The registration, with public credibility, provides the legal foundation for alternation and transaction of land right, which is the objective status of registration of real estate in our country. Thus, the existence of registration confrontation of easement in our country is in line with current national conditions, but there are still many defects in registration system of our country.The second section analyzes the improvement of registration system of our country. The author provides five suggestions from such five aspects as uniform of legal foundation, registration authorities, registration effectiveness and registration certificate. To sum up, this paper analyzes easement comprehensively by studying the regulations of our country and other countries and regions. It provides suggestions of legal improvement in view of present situation and defects of easement registration in our country. It is very important to perfect the registration of easement, which can develop market economy and stabilize people's life. Therefore, this paper has certain theoretical and practical significance. The author expects to receive more attention from the theorists so as to safeguard the benefits of the relevant rights holders through legal and judicial practice, and provide convenient legal services.