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The Concept Of System Evolution And Method Consciousness Change: System Research On Japanese Use Of Land

Posted on:2014-02-28Degree:MasterType:Thesis
Country:ChinaCandidate:X XieFull Text:PDF
GTID:2296330425979272Subject:Civil and Commercial Law
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This paper is consisted of five chapters. The content of Chapter1is concernedwith the concept of Japanese use of land; the content of the Chapter2is concernedwith the history of Japanese use of land; the content of the Chapter3is concernedwith the obtain of Japanese use of land; the content of Chapter5is concerned with theexistence, novelty, and eradication of Japanese use of land; the content of the fifthchapter is concerned with the force of Japanese use of land.In Chapter1, the connotation of the concept of Japanese use of land is discussed.Japanese use of land which is created by Japanese lawmakers dues to relieve thecontradiction between Civil Code and social reality. Japanese use of land is composedof tenancy right of land and superficies of land, and tenancy right of land of Japaneseuse of land became gradually a right combined with the nature of property and thenature of claims during the period of “the theory of lease real right””the theory oftenancy right as property” and “the theory of tenancy right as comprehensive right”.Eventually, the constitution of Japanese use of land solve the problem that Statuteswere not in accord with social reality, however, the costs is the loss of the precisenature of legal concept and the delicacy of legal system.Chapter2discusses the history of Japanese use of land. From the BuildingsProtection Law to Land Use Law, Japanese lawmakers began to escalate the power oftenancy right of land of Japanese use of land in order to protect the benefit of landrenters. Though Japanese use of land trended to become a property right marked bythe promulgation of Land Use Law, with the promulgation of1991Land and HouseUse Law, Japanese use of land converted to another way in which the right try tomake versatile. And the trend of real property of Japanese use of land ebbed.The content of Chapter3is concerned of the acquirement of Japanese use of land.People will obtain the right by the means of contact, legal superficies of land, the ruleof some special law, acquisitive prescription, and the abuse of land owners. It is worthnoting that1991Land and House Use Law created the concept of use of land ofoneself, which benefits to solve series of problems of land owners. However,landowners only own use of land with other rights holders rather than own it just bythemselves. This entices the conversation of Japanese lawmakers to the extent.The subsisting, updating and elimination of Japanese use of land are studied inChapter4, among which the first two topics are mainly discussed. The subsisting and updating of use of land are key problems of the relation of tenancy. In fact, from theperspective of legislation theory, strengthening the force of use of land andtransforming it into a property right are achieved mainly by prolonging the subsistingperiod of use of land and giving lessee of land the updating rights. Land Use Law andLand and House Use Law give a long subsisting and updating period to use of land.On one hand, this may enhance the relatively weak position of lessee of land; on theother hand, this makes it possible for use of land to transform into property and forlessee of land to recycle their capital investment. In the aspect of the relation betweenuse of land and constructions, Land Use Law once insisted that use of land beeliminated in case a construction is corrupted. However, this rule is repealed by Landand House Use Law, since the concept of “corrupted” is not very clear and this rule isnot so fair to lessee of land. When use of land expires, lessee of land can advocateupdating right from lesser of land so that use of land can be set up again using thecondition of the original tenancy contract. In order to guarantee updating right oflessee of land, Land Use Law and Land and House Use Law both require that lesserof land can recover their ownership of land only if they have good cause, or theycannot refuse the updating requirement of lesser of land. A lot of jurisprudenceemerged in Japanese tenancy practice around the justification of the presence orabsence of good cause. In judiciary, a situation once appeared that the possibility thatlessee of land use good cause to counterplead and recover their ownership of land isstrictly limited, the goal of which is to protect the interests of lessee of land. In orderto ease the land conflicts between lessee of land and lesser of land, Land and HouseUse Law specified details and types of good cause, which set up a relatively specificand objective discretion benchmark for good cause.In Chapter5, the force of use of land is studied, including the confrontation forceof use of land, special rights of land use law and periodical use of land. Theconfrontation force of use of land is different from the confrontation force of tenancyrights registration of immovable property, which is defined in Japanese Civil Code. Itis generated on the registration of constructions on land lease. Its benefit is that it canmake up for the lack of claim of registration tenancy people under the name of use ofland. Therefore, use of land gains confrontation force through tenancy people’sunilateral conduct. This addresses the issue of external validity of use of land to adegree. Special rights of land use law mainly refer to claim that the one party canrequire the discount of land rent or augment the land rent and the claim of purchasing building. The meaning of the former one lies in that it enables the adjustment of landrent in lines with the times so that the conflict between the changing ofsocio-economic conditions and durability and fixity of tenancy contract can be eased.Also, it can avoid such situation that the interests of lessee of land and that of lesser ofland are imbalanced. the claim of purchasing building enables lessee of land to asklesser of land to pay for the construction on tenancy according to the current priceso that lessee of land can recover the capital investment in land. Furthermore, lesseeof land can also adopt the claim of purchasing building as a way to request lesser ofland for dispose Japanese use of land with economic oppression in order to achievethe circulation of use of land. Periodical use of land defined in Land and House UseLaw shows a diversification trend of use of land. Take general periodical use of landas an example, it has neither updating force nor effectiveness of being claimed topurchase the building of lessee. In fact, it does not have any special force of use ofland, which is given from the time that special legislation in Japan. The only force ofgeneral periodical use of land is that it changes subsisting period from20years to50years, breaking the shackles of Civil Code. The subsisting period of the periodic useof land to careers is even shorter and there are some special limits in land use. theperiodic use of land can be treated as regression to the spirit of Civil Code to a degree.It is true that the periodic use of land obviously has the character of the tenancy rightin Civil Code. However, for the reason that it has long-term legislative interventioncan be called a tenancy right which has Character of weak property rights and belongsto claims system in essence.
Keywords/Search Tags:Japanese use of land, superficies of land, tenancy right of land, building, novelty, periodical use of land
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