Research On System Of Space Using Right

Article 136 of Property Law of the People's Republic of China (hereinafter referred to as Property Law) is the first formal provision on space using right regulated by our state law which has significant theoretical and practical meaning.However,"Property Law" has not made space using right as a real property right,but as the land using right for building."Property Law" adopted a layered approach of the land using right for building,which is not an effective solution to the multidimensional space demand in the social reality and is not conducive to a full and effective use of the space resources.Therefore,the research on space using right provides a theoretical basis of perfecting China's legislation on space using right,so that people can use space resources more effectively and keep sustainable development of the society.This is the purpose and significance of this thesis.This paper adopted empirical analysis,comparative analysis,historical study and other research methods.From the perspective of the Property Law,the paper dissertated the concept and the origin of space using right, the legal features of space using right,the changes of space using right and the legislation and other issues of space using right respectively and systematically.In addition to the introduction and conclusion,this paper is divided into four chapters. Chapter 1 briefly describes the concept and classification of space using right,as well as the emergence of space using right.Space using right,refers to the space user' s right of possession,using and profiting from upper and lower surface of the land within a certain range of space.On nature,space using right is one of the property rights of real estate.Space using right includes space using right of claim and space using right of property.Among them,the space using right of property is divided into superficies of space and easements of space.The emergence of space using right is not accidental.The growing tension of land resources and constant scientific and technological development are the reality conditions of the emergence of space using right and the legislation,the cases and the theory on the solid use of the land are the jurisprudence basis for the emergence of space using right.The chapter 2 focuses on the independence of right when space using right is used as usufruct of real estate.The independence of space using right depends primarily on the existence conditions of space using right and the relation between it and other property rights.From the existence conditions of space using right,the owner of space using right is the third person other than the land owner and the land user, and the object of space using right is the space used as the object of independent property right.In addition,the contents of space using right and land using right are also different.From the relationship between space using right and other property rights,there is essential distinction among space using right,land ownership,land using right and the ownership of the condominium building.Therefore,space using right is an independent usufruct of real estate and should not be included in the land using right for building.Chapter 3 focuses on the changes of space using right,including the establishment of the space using right,acquisition,transfer,extermination, and the associated publicity methods.The establishment of space using right is diverse.Land owner can set up space using right for others on the specific space within the effectiveness of the owner's land ownership.Other natural resources owners other than the land owners can also set up space using right for others in compliance with the statutory conditions.The changes and loss of the space using right must be public informed by law.Chapter 4 mainly discusses legislation patterns of space using right in different countries and regions in the world,as well as legislative vision of establishing space using right system in China.There are three models of space using right legislation in different countries and regions:space using right used in the relevant sections in Civil Code Usufruct provisions,space using right provided by decentralized manner,space using right formulated by a separate space law.For our country,we should enact a separate passage in the relevant chapters of Civil Code Usufruct,divide space using right into superficies of space and easement of space,and make detailed provisions of the definition, establishment,deadline,space using fee,enjoyment,execution,mortgage, lease of superficies of space and easement of space,other restrictions matters of them etc..