Easement System

The easement, a traditional usufrucmary right of real right comes fromRoman law. At that time, the easement system plays an important pole in adjustingthe adjacent relation of immovable property.Because the easement obtainsprominent effect in utilizing immovable property, each primary country inheritsand develops the easement from that time.Since the system reforming at the endof the Qing Dynasty, although the easement was introduced into our country, itwas not carried out effectively.When the People's Republic of China founded,theCenter of the Communist Party of China abolished the whole book of six laws ofthe Kuomintang,the rules of the easement disappeared in our civil law. Up to theevening of twentieth century, our civil legislation concerning the easement wasblank yet.At the beginning of twenty-first century, meeting with the opportunityof establishing the real right law, the argumentation about the easement starts toboom. In fact, underneath real right principle of the legality, the particularconfiguration of the easement revives itself.For this reason,this paper tries toretrospect easement to the ancient Roman law, discourses on the essential theoryof the easement system,demonstrates the necessity of establishing the easementsystem in China, and then provides some advice on the establishment and optionof such system in China, expecting that could further conduce to catching onChinese real right legislation conceming the easement system.This paper consistsof three parts:general introduction text and concluding part.In the general introduction,the author gives a brief discussion on theeasement system and our present study on this topic, and then induces theintention of this essayThe text of this thesis is made up of four parts:Part one introduces the history of easement system.Firstly, the author revealsthe process of the easement from Roman law.Secondly, the author shows thatprimary latter-day countries come into the easement, from which we can knowthe easement system plays an important pole in adjusting the adjacent relation ofimmovable property and two different modes of legislationconcerning the easement system are induced.One of them is the easement absorbing the adjacentright which stands for France and Italy, the other is the easement coexisting withthe adjacent right which stands for Germany and Japan.And then we should learnfrom primary countriesPart two is about the basic theory of the easement. First of all, the authorgeneralizes the traditional theories,from which the concept of the easement isexpounded.That is the right that the owner and user of the real estate makes useof another real estate for own profit of the real state. Secondly, the authorcompares the easement with the adjacent right and the ownership.Through thecomparison of these different rights,it is pointed out that the easement is givenbirth to the ownership and the easement is the limit of the ownership. And also itis opened out that there are differences of the concept, the essence, the scope, theadjusting means, the obtaining method and the payment between the easementand the adjacent right and the easement is subordinate, indivisible and soon.Thirdly, basing on understanding the concept and characteristic of theeasement, the author further analyzes the constitution of the easement in virtue ofgeneral principles of civil law and indicates that the owner, the user of usufructand the leaseholder of land and the owner which holds two kinds of adjacent realstate can be the subject of easement and the object of easement expands the realestate and the contents of the Easement system are open.Part three argues the necessity of establishing the easement in China.Theauthor explicates the necessity from the interior foundation that the easement is inpossession of powerful societal functions which can remedy the imperfections ofadjacent relation and overcome the insufficient of real right principle of thelegality and perfect the legal system of the real right and the exterior conditionsthat the idea "self-government" is consummated and the real-life need of oursociety should be satisfied.Part four is about the perfection of our easement system.Basing on thesystem of our Current civil law, the author analyzes the advantages anddisadvantage of our easement system in the Real Right Law according to theelementary theory of the easement system.On the one hand, the author illustrates that the advantage of our legislation of easement system which lies to the electionof legislative modes and the acceptance of the name of the easement and the limitof the subject and object of the easement and the provision of existent periodsucceeds to the developing tendency of contemporary easement system and isconsistent with our modem conditions and complies with intemational trend. Onthe other hand, it is pointed out that the disadvantage of our legislation ofeasement system lies to the limit of the conc.ept of the easement and the adoptionof the theory of essential registration in the registration and change of theeasement system and the author make superficial suggestions aiming at thedisadvantage.