On The Right And Interest Of Graveyard

Chinese people always take graveyard seriously, because graveyard is treated as the dwelling of their passed-away relatives and a place that conveys their grief for the dead ones. With the speedy industrialization and increase of the population, the problem on graveyard follows closely the conundrum of deficiency in land and bears a dualistic quality that appears different in cities and in countryside, which makes itself an intractable problem. But the law on this question is so far from mature and provisions are so scarce that the ownership of rights and interests regarding graveyard remains obscure. Along with actions such as moving tombs on command of government and frequently infringing the relevant rights and interests of graveyard, the protection of these rights and interests becomes imperative and indispensable. So, we try to find grounds for the protection in theory.The article makes a deep study on ownership of rights and interests of graveyard in ways of historical analysis, comparative study, induction and legal sociology.For starters, the article retrospects the word graveyard etymologically and defines it. There are two kinds of graveyards:tangible graveyard and intangible graveyard. The former includes land and tomb. Secondly, the article discusses, in addition to the actual state of ownership of graveyard from a dualistic structure that contains distinctions between urban aspect and the rural aspect, the existing protection mechanism on ownership regarding graveyard from two levels of statute law and common law. Thirdly, doing a qualitative analysis of the right-and-interest relation of graveyard, the article redefines the subject, object and content of the right-and-interest relation on the basis of its collective characteristics from the angle of legal sociology that is a different way the traditional department laws are not used to. Moreover, the article refers to the legal systems about protection of the right-and-interest relation of graveyard in Qing dynasty and Taiwan, China and experience of Japan and South Korea in order to put forward useful advice for our practice in protecting the relevant rights and interests. The last but not least, the article sets forth suggestions on legal protection of the rights and interests of graveyard from the legislative respect, law-enforcing respect and judiciary respect.The end of this article is to deepen our understandings of the collective qualities of the right-and-interest relation regarding graveyard by studying the question about rights and interests regarding graveyard, and to provide useful advice for improving our legal system of rights and interests regarding graveyard through taking the successful experience of protection at different times and in different areas for example.