Discussion On The Establishment And Effectiveness Of The Easement

The Article158in the Property Law of the People’s Republic of China provides:" Easement will be established as soon as easement contract comes into effect. If the arties require to register it, they can register to apply easement registration; if the easement contract is not be registered, it can not against bona fide third party."The article158, sectionl clearly states that easements will be set up if the easement contract comes into force, which exclude the way of inheritance, the positive prescription and so on; section2states that the "registration antagonism" model of registration confrontation of easement in our country, but does not distinguish between the legal action and the legal fact, so the single effectiveness of easements registration is not fit to the way in diversification of the easement establishment. What is more, this problem become the bottleneck to the easement effectiveness. This paper mainly provides a new reflection of article158, then discusses easements established for the subject, object, content, methods, effectiveness, etc. In order to establish a reasonable easement theories and the effectiveness of the registration system, what is more, it may perfect "property law" and "Civil Code", which will be put forward to. Besides the introduction and the concluding section, this paper consists of four chapters:The first chapter analyzes the factors of legal relation in easement. This chapter discusses on theoretical basis of the establishment of easements subject, object and content of the three elements. Through historical analysis, comparative analysis and other research methods, the establishment subjects of easements should be expanded, which should include the owner, usufructuary, lessee and so on; In order to expand the scope of the easement, and make best use of easement, easements object should be riched, and land and buildings in real estate is limited; The benefit changes from servitude to servient tenement.Due to the uncertainty of the contents of easements, as long as the expression of the true meaning of the parties, and does not violate the mandatory provisions of law and of public order and good morals,"property Law" no need to make any mandatory regulation.The second chapter researches on the establishment ways of the easements, which can be divided into two sections:which are based on legal acts and are not based on legal acts, but "Property Law" provides only an easement contract based on the establishment of easements in this way, its theoretical foundation is the principle of statutory real right and autonomy of the parties. So the easement contract is a useful complement to the rule of property in law. But the legal fact,such as inheritance, the positive prescription should also be included in legislation, and we should use the mode of registration antagonism.The third chapter discusses on the easement effectiveness of the registration. This chapter analyzes the advantages and disadvantages of registration effectiveness and registration antagonism, cleared the criterion in law and economics. At the same time, we should make best use of their advantages, then distinguish the legal action from the not based on legal acts, and adopt registration effectiveness and registration antagonism in article158.The fourth chapter discusses on easement registration for the establishment. The initial registration of the easement must be recorded in both servient tenement and servitude registers. Our government attaches great importance to the public notification to maintain the safety of the transaction. So the easement registrations and review matters should be different according to the establishment effectiveness of an easement based on the distinction. So we should expand the easement to the establishment of the scope of the subject, rich easements established object the establishment of a diversity of ways easements, and set scientific, unified easement registration criteria for the validity and other legislative proposals.To sum up, the Article158in the Property Law of the People’s Republic of China should be amended that " the owner, lessee, usufructuary right person, the person, having the right to contract for management of land, the users who has ordinary construction right, the homestead use right person can set up easements. Easements that established by legal actions come into effect as soon as registration. Result of inheritance, enforcement, collection, court or other non-Court ruling established by legal acts, be established when the setting up conditions come to success. If the arties require to register it, they can register to apply easement registration; if the easement contract is not be registered, it can not against bona fide third party."...