On The Legislative Improvement Of Servitude System

The Servitude is an ancient usufructuary right, originated from Roman law, it has been widely adopted in the world. With great inclusiveness of its content, it plays an important and unique role in the Security law of real estate. In view of importance of cooperate the use of the Security law of real estate, The PRC property law prescribes the Servitude system. In this paper, the Servitude system is studied systematically and deeply. According to the basic theory and legislation inspection, based on the status of China’s legislation of Servitude, the author points out the successes and deficiencies in China’s legislation of Servitude, then puts forward some corresponding suggests.The paper consists of four parts:The first part introduces the basic theory of the Servitude system. The Servitude is based on other’s immovable property in accordance with the contract, for the convenient use of one’s own immovable property. Its characteristics are subsidiary, indivisibility and Self-determination. According to the concept, the author expatiated on the legal nature and the function of Servitude. The Servitude plays an important role in the usufructuary right system. The adjacent relation gap can be overcome, it also can mitigate Principle of statutory, and improve the land and other real estate resources utilization efficiency. The Servitude has significant influence on the real estate and it can adjust them. In order to avoid the Servitude and adjacent relation confused, the author first states the modes of Servitude and adjacent relation. There are two modes in them:the servitude mode of France and the mode of Germany. The mode of France regulates the adjacent system with servitude, intended to emphasize the close relationship between them. But the mode of Germany makes a distinction between the servitude and adjacent relation, it shows that they both are not fully able to tolerate each other in the legislative value orientation. And in the last the author compares the Servitude and adjacent relation system.The second part mainly studied the legislation of the Servitude of other countries, the author introduces the origin of the Servitude. The Servitude in Roman law exerted far-reaching influence on the later legislation of Servitude to other countries in the provisions for the servitude. For the differences of historical background, political and economic, cultural traditions and values, there are differences in them. The Servitude is investigated in France, Italy, Germany, Russia and the United States. They made different provisions, but there are no better essentially among them. And the result is that we should learn from them. The PRC property law setup the servitude for the first time. So in one hand, we should accept the provisions of the servitude, and in the other hand, we also should make a development. That is to say we can draw into the Acquisitive prescription of servitude system and Public servitude.The third part analyses the current legislation of Servitude in China, and on the basis of this, the author points out the successes in aspect of the legislative mode, the content of Servitude and so on. The Servitude achieved a maximum adjustment on the interest of the parties. In order to adapt the need of modern social and economic development, it has a unique and important significance in promoting the process of modernization of our country. The successes of the PRC property law legislation are: the PRC property law adopted the mode of German law; the object is defined as the immovable property; the legislation on the duration is scientific and so on. The author also states the deficiencies of our Servitude system existed in legislation and practice. It mainly includes:on the effect of registration in the Servitude, it should not give up the doctrine of register go into effect because of the cumbersome registration process; PRC property law did not establish the acquisitive prescription system in the Servitude; it also has not made the corresponding provisions on the public servitude in our country.The fourth part puts forward related suggests on the base of current legislation situation. Suggests elaborates from three aspects:first, the improvement of registration of Servitude. This author thought that China’s Servitude registration should adopt the registration validity doctrine. Second, the legislation design of acquisitive prescription of Servitude. Acquisitive prescription of servitude can maintain and consolidate established fact, assigned to the servitude results in consistency. It has played a role in settling the disputes, embodied the evaluation order and transaction security. It mainly includes the composing element of acquisitive prescription system in the Servitude, the restrictions and effectiveness. Third, we should draw on the experience of other countries and prescribes public Servitude. Provisions of the public servitude will protect the public interests and promote the economic development and contributes to the growth and prosperity of a society as a whole.Conclusion. The thesis is a description of Servitude, and it focuses on three important problems of Servitude system, and I hope it can play an important role in legislation improvement of Servitude system.