On The Law Of The Right Of China's Space Is Constructed

As a kind of rare resources, land has been taken full advantage of to fulfill the economic development of modem society. Space right, as an estate property right that came into being with the multiform use of land, has been established by legislation, jurisprudence and doctrine, which belong to most countries and districts. Comparatively, in our country, the research on theory of space right falls behind and the legislation is also in lack, which cannot fit the urgent demand of both space exploitation and space utilization in the country. In accordance with such a contrary, in this paper, beginning with the theory analysis on space right, learning from foreign legislation experience about space right as well as taking our reality into account, we put forward our law pattern and try to resolve the difficult points on space right theory and the problems in practice.The research on the basic theory of space right is the premise to construct the space right legal system. In this paper, the legal theory of space right breaks the traditional estate theory, which is adapted to the concept of possessing and utilizing land as a plane: the civil object of space right is space that lies out of the scope of surface right. For this reason, not only is space right different from distinct property right of building, and different from traditional real right, such as surface right and easement, but also space right break and then develop both the doctrine of one thing one right and the doctrine of legal real right of traditional civil law. The civil nature of space right lies in that it is one of the real estate property rights.Taking the circumstances of space utilization and space legislation into account, in this paper, the theory foundation of space right legal construction is put forward, which has two respects: on one hand, the establishing of relative land ownership theory which is based on the theory of social interests has prepared the theory foundation; on the other hand, the general tendency of land multiform utilization and the following increase of dispute of space title in real life, the academia and the practicalbranches have begun the attempt of theory exploration and real legislation, as the actual reason, which call and give impetus to space right legislation. In this paper, from the Law and Economics angle of view, the Economics meaning of space right construction has been expounded and proved, that is, improving efficiency of resource utilization, saving transaction cost and bringing about incentive value.At present, researching and learning from law patterns of space right of foreign countries is the necessary access to our law construction of space right. In this paper, the foreign legislation experience of space right is investigated widely, and at the same time, three basic instances of legislation are put forward, that is, civil law pattern, space law pattern and law package pattern, each one of which has the respective merits. But in the circumstances of making our civil code, the civil law pattern has to be restricted by many factors, such as the content of law system, the time needed in legislation, the legislative techniques, the legislative cost, and so on. As a result, the civil law pattern cannot fulfill the urgent real need of legal regulation to space right. On the contrary, space law pattern not only put up with the shortcomings, but also has the advantage of flexibility in system. Consequently, the civil law pattern that agreed on by most learners is negated, and the space law pattern is hold in esteem, that is, the law pattern of space right of our country that is chosen in this paper is laying equal stress on basic law and separate regulation. Moreover, the real problems that existed in law construction of space right are summarized and analyzed briefly, and in the paper, the corresponding resolve schemes are offered.