China Usufructuary System Research

The establishment of Civil Code of China has been the focus of the theorists and the legislature. As one of the very important part of Civil Code of China, usufructuary right has attracted scholars' attention. In the draft of Property Law and Civil Law, there are many different opinions on how to form the system and structure of usufructuary right. Starting from this base point, the author analyses the basic requirement of the system of usufructuary right, points out the status quo and the limitation of it, sums up the basic systematic values of the usufructuary right. By using the historical and comparative research measures, the author expatiates the origin of usufructuary right on Roman law, analyses the system of France, Germany, Japan and Taiwan, acquires several available apocalypse and constructs the system of our country's usufructuary right On account of the little talent and learning, there exists a lot of deficiency in this article which should be unproved. I am looking forward to teachers' crucial instruction.In order to construct the system of our country's usufructuary right, we must consider that the ownership of land belongs to the state, and the center of property law has been changed from proprietary to usufruct. This system can not only solve the conflict of possession and use of ground, but also provide guarantee on people who use others' property. In our country, the integrated usufructuary right system should include five rights: superficies, using right for rural land, servitude, inhabitancy right and hock right. As the hypogyny concept of usufructuary right, every right must have the control power, excluding power and the character of limitation and derivation. The management right of state-owned enterprise is the ownership in essence, so it is unsuitable to be prescribed in property law. Some kinds of property rights are not included in the scope the usufructuary right, because they are only the manner of acquiring properties and usually regulated by the public law. Land lease right has been taken on the character of property right's quality, but it is a kind of creditor's rights in nature. There are many differences between usufructuary right and land lease right, so we must prescribe these two kinds of rights in different places to meet the needs of different people.This article can be divided into four parts.In the first part, the author researches the concept of usufructuary right and the basic questions on the systematism. In the first place, the author summarizes the meaning andcharacter of usufructuary right, analyses the distinction of creditor's rights and property right from the origin of it and points out the quality of usufructuary right In the second place, the author emphasizes the essential request of a systematic usufructuary right. It must have the legible and uniform conception. It should stick to the doctrine of legally prescribed property right. It must differentiate between property law and particular law. At last, the value of the systematism is to be clarifiedIn the second part, the author reveals the origin and the development of usufructuary right from the angle of contrast law. By describing the course of the usufructuary right in civil law countries, the author draws four conclusions. Firstly, we should construct the system of usufructuary right on the focus of using property but not owning property. Secondly, the system of usufructuary right in China should have the feature of itself. Thirdly, we should divide the system of usufructuary right according to function of those. Lastly, the trend of the system of usufructuary right should be open widely.In the third part, the author makes a self-criticism on the system of Chinese usufructuary right The current problem is concentrated on the improper conceptions, the system short of logicality and scientificity, some kinds of usufructuary rights be missed In respect that the center of property law has been changed from proprietary to usufruct, the Civil Code of China has been in the course of...