A Research About The Space Construction Land Use Right

This article chiefly research about the “Property Law” Section136“the spaceconstruction land use right”, summarized the main problems and solutions by finishing thespace legislation and theory of Domestic and foreign, combine china’s basic nationalconditions and construction land use right to analyze the above content in order to perfectionof the space construction land use right legislation. Besides the introduction, this article isdivided into the follows parts:The first part mainly state about the basic theory of the space construction land use right.By discriminating the related concepts, propose that the right in section136of the “PropertyLaw” should be called “the space construction land use right”, and on this basis, put forwardthat the legislation should introduce this concept. This article although recognition thisconcept, but this dose not mean that the right constitute an independent usufructuary right,because the difference between the space construction land use right and the commonconstruction land use right is only the quantity, but not quality, existing legislative modelsworth endorsed. Summarize the current legislation situation of the space construction land useright at domestic and foreign, China should step up to introduce the single legislation aboutunderground space planning and management, at the same time, China also should beginconstructing the basic operating rules of the right and consider to draw up a comprehensivelegislation when the time is ripe.The second part mainly research about the object of the space construction land use right.The object of the space construction land use right shall be “space” instead of “land”. Thespace range of the space construction land use right should be cleared in the aforehandplanning, instead of being identified as “space occupied by buildings, structures and ancillaryfacilities.” In addition, there have some common construction land use rights emerged beforethe “property law” stated, we also need planning to calculate its upper and lower range. Thecollective land’s space use is related to the land development right of farmers, this problemhave long-term research value, achieve collective land layered use should follow three aspects,allow layered set up the collective construction land use right, reasonably open the establishpurpose limit of the collective construction land use right, implement unified planning inurban and rural areas. When a piece of land covered by water, whether its space can be the object of the space construction land use right? The space should be able to set up the spaceconstruction land use right which the nature of the land did not changed, maritime space useshould belong to the category of the sea areas use right, waters space use should establish thewaters use right legislation.The third part mainly discusses about the change rules of the space construction land useright. The make way of space construction land use right and common construction land useright are basically the same, but there also have some differences between the above tworights, such as right set limiting conditions, the scope of application of the agreement givingway, the set target of “specific” and so on. This article suggest allowing divided transfer ofthe space construction land use right so as to achieve the goal of land space stratification use.The elimination reason of the space construction land use right including the expiration of theterm, taking bake in advance and space for loss, after the right to destroy, obligee have theright to ask for compensation and reimbursement about their buildings, the legislation shouldfully considering the space’ independent use value and seek breakthroughs in the problemslike taking back for the public interest, land expropriation, right term and its renewal. Aspecific point which is not easy to change in a specific administrative area should beconfirmed as the basis point in the space calculation, and the complete three-dimensionalregistration system should be developed so as to clear the spatial scope in right registration.Considering the two factors of construction right subject and construction way, the rightwhich can be confirmed as space construction land use right should be specified in theregister.The fourth part mainly discusses about others running rules of the space constructionland use right. Our country should allow the space construction land use right’s subjectthrough the way of obtain construction land use right, easement or leasehold to obtain the landuse right on the ground, legislation should also confirm the underground space connectivityobligations as a legal obligation, and the obligations’ bear rule should be clear. We shouldrealize that after the “Property Law” enacted, the adjacent relationship also can apply to“vertical” real property, but the existing legislation about the adjacent relationship is base onthe complanate land use, so there have some limitations in applying the existing rules to thespace adjacent relationship, and some important space adjacent relations are not clear in thelegislation. Our country’s real property adjacent relationship closely related to planning, sothis article suggest that when the damage occurred we should do processing respectively according to the cause of the damage.