A Legislative Research On The System Of Acquisitive Prescription Of Easement

The system of acquisitive prescription of easement is the application of acquisitive prescription in easement, which is stipulated in Justinian Code for the first time. And the system is stipulated in both civil law system and common law system. In this country, the system of acquisitive prescription of easement was established in civil law in the late Qing Dynasty, which has already had the history of more than 100 years until now and had certain theoretical basis. However, after the establishment of New China, because of the common ownership of land, the system of acquisitive prescription of easement loses existential space, and its theoretical research is also in stagnation state. When establishing the system of easement, the acquisitive prescription of easement is excluded by the current property law which leaves legislative blank.The system of acquisitive prescription of easement need be established for the current socialist market economy, which can overcome the idle waste of resources and correspond with the requirements of market economy's maximum use of resources. Although the common ownership of land is carried out in this country, land-use right can be on the move, under such factual national conditions, the interests of the owner of land, land use right user and the user of actual possession can be balanced by the system of acquisitive prescription of easement. At the same time, the establishment for the system of acquisitive prescription of easement can complete the system of easement, contribute to the perfection of civil law's prescription system and remedy the legislation flaws of property law.Based on investigating the system of acquisitive prescription of easement in the major countries of civil law system and common law system, the author considers that the value of safety and efficiency pursued by the system of acquisitive prescription of easement as well as the principle of justice and trust contained in it make it achieve good effects in adjusting the relative social relations in real life, which finally decides its being value.The value of safety and efficiency of the system of acquisitive prescription of easement is the legislative value pursued by it. As the exclusive right of real right, easement also must embody property law's requirements of the value of safety, and the institutional design is the system of acquisitive prescription. The system of acquisitive prescription of easement ends the uncertain status of rights, makes clear the attribution of rights and reduces the disputes produced by the unknown attribution of property rights so as to achieve the aim of solving disputes. Essentially, it reflects the protection for static safety in the value of safety of property law. At the same time, the current situation of right change is confirmed by the acquisitive prescription of easement so as to protect the validity for the circulation of right relations without belonging to invalidation, which essentially reflects the protection for moving safety in the value of safety of property law. However, the prior protection for moving safety of real right is placed more emphases by the system of acquisitive prescription of easement. The value of efficiency of the system of acquisitive prescription of easement can improve the efficiency of idle resources recycle, save legal costs, increase legal efficiency and cultivate national efficiency consciousness.The principle of justice and the principle of trust are taken as the legislative grounds by the system of acquisitive prescription of easement. The basic goal of the system of acquisitive prescription of easement is to find an optimum balance point between promoting socioeconomic development and protecting stable social order, between realizing the individual interest of persons involved and realizing the interest of the whole society as well as between the distribution of rights and obligations of civil subjects so as to achieve actual justice. Trust is the prerequisite foundation acquired by easement because of prescription and the objective of the system of acquisitive prescription of easement is to protect the reliance interest of person of servitude. At the same time, as for defining the reasonable reliance for person of servitude, the reason to produce reliance for person of servitude should be investigated, which must be caused by the existence of certain behaviors, promises or states beyond the expression of holder of servient tenement; the behaviors of person of servitude produced by reliance must be of objective existence, really visible and known by common people; the reliance of person of servitude should be a kind of virtuous psychological condition; to protect the reliance interest of person of servitude should be more in line with the principle of justice.After discussing the realistic necessity and the legal theory foundation for the establishment of the system of acquisitive prescription of easement, propose the legislation design of the system. The constitutive requirements for the system of acquisitive prescription of easement should meet the following requirements: person of servitude should have well-meant subjective opinion to acquire easement for oneself; qualified factual form of right exercises must exist; take the easement owned or used by other person as well as the easement on other immovable property as object of the right; the factual form of right exercises of person of servitude should experience a certain period. At the same time, classification should be made according to the exercise style and content of easement, and the easement which can't apply to acquisitive prescription should be listed one by one and be excluded so as to make clear which kind of easement can be applicable to acquisitive prescription. The legal validity of the acquisitive prescription of easement mainly refers to that after the registration of the acquisitive prescription of easement, the holder of servient tenement receives additions and corrections for the legalization of right. The starting point for prescription of the acquisitive prescription of easement should take person of servitude as center and focus on the status of occupation and use, that is, the period of prescription should be calculated when person of servitude carry out efficient occupation and use for servient tenement openly, peacefully and justly. The period of prescription of easement takes interruption as principle and cease as particular case. The legal causes of interruption mainly refer to the original obliges of servient tenement raise objection to the occupation and use of person of servitude for servient tenement. When force majeure cause the occupation and use of person of servitude can't continuously reach to period of prescription, the applicable prescription should be ceased. However, for the situation that person of servitude died and the successor inherits dominant estate, it should be divided into two situations to treat with: firstly, if the successor still keep the original status of occupation and use, because the essence of easement is produced for the cheapness of dominant estate, this kind of situation should be regarded as the cease of period of prescription for the acquisitive prescription of easement, in such way, it is more propitious to stabilize economic order; secondly, it the successor changes the original status of occupation and use, for instance, change passing through into drawing water, in such way, a new easement is formed, and it should be regarded as the interruption of period of prescription for the acquisitive prescription of easement.