Right To Space Research

From Roman law times to modern times, especially before the industrial revolution of 19th, the land utilization emphasizes generally the earth's surface, and the exercising of land ownership could reach the unlimited space above the earth' surface. Up to now, with the advance of social industrialization, the three-dimensional utilization of land has been a tendency. The principle of traditionally absolute ownership undoubtedly cannot solve these problems involving the utilization and ownership of land space.Space right is the rights that just meet with the above tendency in the field of real property law. Since the latter half of 19^th century, many developed countries have established legal system concerned the ownership and utilization of the land space, and the underground of the earth's surface. However, reviewing our country, there is little legislation corresponding for reference or forming the rule of legal precedent, even the research of academic theory is only the beginning. By the basic theory of civil law, the paper delves further into the divergence of views governing the space right theoretically while citing some cases in daily life as the starting point and elaborates the different sub-rights in the space right system, by which the author put forward his own opinions and suggestions in the legislation of space rights.The author believes firmly that the space rights is not a single usufruct of immovable property, but a general summary of different real property rights that are arranged in the air or below the land ground. The system of space right includes: Space Ownership, Space Superficies and Space Servitutes Praediorum. The object of space rights in the space existed in the air or below the land surface. Therefore, the author hold that the legislation of space rights in China should be embodied in the real property chapter of the future Civil Code, and also consider that the concept of space rights should be adopted completed and the sub-rights in the space rights system should be stipulated explicitly. The paper falls into four parts as follows:The first part: the Elementary Questions in the Theory of Space Rights. Firstly, it discusses the background and origin of space rights and then, analyzes the realistic and theoretical foundation of space rights, so as to confirm the space has access to be the object of property. At last, it discusses the meaning and characteristics of space rights and constructs the system of space rights.The second part: Space Ownership. It discusses the meaning and characteristics of space ownership and then, justifies the existence of space ownership. Finally, it explains the system of space ownership in China.The third part: Space Usage Right. The space usage right consists of two kinds of right, which are Space Superficies and Space Servitutes praediorum. Firstly, it discusses the meaning and characteristics of Space Superficies. Then, it argues how to obtain space superfices and the relationship between different Space superficies and focus on how to resolve legal cases about Space Superficies in practice after the detailed explanation of the system of Space Superficies in China. As to the Space Servitutes Praediorum, the paper discusses the meaning and characteristics of this right and quotes some cases of enlightening.The fourth part: the Legislation of Space Rights in China. Firstly, it observes the situation of legislation abroad and then, analyzes the differences among several drafts of Civil Code of China. Property Right Law has passed on Mar. 16^th and it will trigger discussion in law circle. By doing this, the author offers some immature advices concerned and hope that it will be beneficial to the perfection of legislation on Property Right Law in future.