Research On Servitude Law From Functional Perspective

Servitude as the earliest of his property rights system, was produced in Roman law. Because of the special historical background, the Servitude has a unique pattern, and then gave birth to the personal servitude, surface right, permanent tenancy and other forms of his property, was adopted by the civil laws.Although the Servitude once quiet, in today’s society is remarkable vitality. On the one hand, since its attributes of decision by the will and uncertainty, the servitude has the function of easing the rigid principle "Numerus clausus" of traditional property law. On the other hand, by these attributes, the Servitude use of real property adjacent to the greatest extent. Thereforth, the Servitude can meet the standard of economic principles of modern law and the legal concept of the society. The form of features of "Servitude property" is unmatched by others. These advantages enable it to adapt to social change, develop new functions, evolution of new forms of rights to meet social needs of land use of others, and to provide support in the form property.Since the appearance of "ownership society "theory during the transformation of the capitalist countries and the phenomenon "the Fusion Public Law and Private Law" as the modern legal developments, specific in the use of real property, is the public servitude. In addition to using functions to improve real property, public servitude to provide play more important role as the performance of the "public" and "private" communication space-used the real estate in the social life providing positive circulating to "public authority" and "private right" and in the law application support the effective reference to "public law" and "private law".To adapt to the growing scarcity of land resources and the increasingly complex relationship between land using, our "Property Law" stipulated the servitude. But for the servitude to be recognized and accepted, and then to effectively play its power, should be aware of changes in the Servitude, to fully understand the characteristics of Servitude, and need to consider the public ownership of land in China and the contemporary legal phenomenon "the Fusion Public and Private Law ".This thesis uses methods of hermeneutics, historical analysis, comparative analysis and system analysis, starting from the functionalism of the servitude and in-depth study of the system, and based on legislation and the status of the servitude, the use of basic theory and historical results, combined with China’s conditions, pointed out the function lack of our servitude, and put forward views and suggestions.