Research On Legislative Perfection Of Urban Underground Space-use Right

The middle of the19th century, western countries have begun using undergroundspace to urban construction on a large scale, they have made great achievements inthe development and utilization of underground space. At the same time, for thepurpose of regulating the normal order of urban underground space development andutilization, and safeguard the legitimate rights and interests of urban undergroundspace development, the western countries formed their own unique legal system ofurban underground space development and utilization officially by the civil code, orby making a special law, or judicial cases and other relevant laws. The developmentand utilization of underground space is late in our country, but in recent years, withthe development of our country economy and the speeding up of urbanizationprocess, it has become the first choice that using underground space in our country tobuild underground passage, underground Commercial Street, the subway so topromote city construction. However, compared with the hot market of undergroundspace development, our country legislation and academic research about the urbanunderground space is extremely cold and cheerless.The "property law" was promulgated on March16,2007, in which, the136thclause is about the construction of land-use right. It has been clear about that theconstruction of land-use right can be set up in different level and this is the firstfundamental civil legislation that reflects the content of the underground space rightsystem in China. The "Property law", however, only bring the underground spaceutilization right of use into construction of land-use right, but does not vest it status asindependent usufructuary right. This system is lack of certain forward-looking designand can’t meet the needs of urban underground space development in China. On theother hand, the136th clause of "Property law" is too principled and general, so that itcould not be applied on the specific situation. Therefore, system of urbanunderground space-use right in China still needs to be improved from the followingaspects: first, urban underground space-use right should be vested independent status.The "Property law" has brought underground space utilization right into construction of land-use right, which means it does not admit the independent status of urbanunderground space-use right in essence. In fact, the urban underground space-useright does not violate the principle of "One thing one right". with the graduallydevelopment of the concept of relative land ownership, the economic value of theunderground space resource is more and more apparent, and from a legal point ofview, the independence of the underground space-use right is also the inevitablerequirement of justice and order. Secondly, it is the choice of legislative mode. Atpresent, there are mainly three kinds of legislation pattern about undergroundspace-use right, namely: civil law legislation mode, separate legislation mode,"package" law legislation mode. Legislative model of China is not a simple copyfrom foreign, but according to the national conditions of our country, draw lessonsfrom foreign advanced experience of legislation mode moderately, in the context ofacknowledging land ownership, adopt parallel legislation pattern of basic law andsingle file law. Thirdly, we need to reinforce the system of urban undergroundspace-use right on specific legislation. Urban underground space-use right system inChina faces an embarrassing situation that is lack of unified legislation, low level oflegal adjustment effect and lack of relevant laws space mating space development andutilization on the legislation. At the same time, in the specific application of law, thereis no clear and specific rules about the size, registration system, adjacent relationprocessing rules and coexist rules of underground space-use right. Therefore, thedeficiency is sure to be responded in a timely manner to make the necessarylegislation.The construction of urban underground space-use right system has a long way.In China, the discussion about establishment of an independent system of urbanunderground space-use right is just a beginning in a sense, and how to really set uplegal system of underground space-use right in civil law system in China, is ahighlighted problem that we focus in the future.