Research On The Right Of Use Of China’s Urban Cemetery

During recently years, as the emotion that people can not afford to die and be buried nowhere, the use right of urban cemetery has gradually attracted the public’s attention. The use right of urban cemetery that is acquainted for value, for restriction and commonweal relates to two subjects who are the cemeteries’ builders and owners. Throughout the legislative actuality of the use right of urban cemetery, there are so many questions that it is difficult to exert the usefulness of protecting this right. Currently as a result of lacking the research on this right in academic world to provide the cogent academic basis with future legislation, therefore, it is necessary to systematically study the use right of urban cemetery.The controversy about the legal nature of this right is mainly focused on the nature of the cemetery’s owner’s use right. Because of this right’s nature of creditor’s right easily causing the cemetery’s owner’s use right to be an unsteady condition, so that in all likelihood this right is aggrieved by the cemetery’s builders or the third party. But the nature of real right can make this right possess the advantages of exclusion, stabilization and protection. And at the same time, owing to this right according to the construction land use right’s attribute, this right should be identified to the species of construction land use right.On the aspect of this right’s acquisition, there are lots of drawbacks of the cemetery’s builder’s use right such as the chaotic acquisition methods, the misty service life, the incremental land costing on account of exceeding marketization, and the deviatory attribute from the original commonweal. Hence, it should be ruled that all the new use right of urban cemetery must be acquired by allocating, and among the existing the right acquired by remising should be allocated subsidy, and the automatic renewable regulations of service life should be established. Aiming at the cemetery’s builder’s use right, there are three aspects being nailing down, as following:(1) The subjects of acquiring this right shall include the deceased and its relatives, not limited to the cemetery buyers;(2) shall stipulate the deadline of owners’ right of use of urban cemetery, and explore the recycled way of cemetery;(3) shall stipulate the penalty rule for gain the right of use of urban cemetery on the area and quantity which beyond the limited by law and speculation behavior. The existing proof modes which by grave-use permit cards have no effect in showing of real right, the tablet inscription cannot provide comprehensive protection due to the factors such as time, size and etc. although it has the function of showing the real right. Therefore, the institution of registration setting-up against others shall be established which respect for the choices of the owners and make up for the shortage at the same time.As the place of settling down ancestors’ remains and offer libation, the significance of the cemetery is obviously and it is badly in need of constructing the civil protection system of this right. Instead of centering on how to limit the ownership of the land, the urgent thing is that incorporate the right of use of urban cemetery into the system of claim of right in rem, and seek the protected mode which could provide the fully compensation for the owners at the same time.The right to use urban cemetery is not permanent, the right of cemetery’s builders will be ended because of public benefit collection, and the right of cemetery’s owners will be ended because of public benefit collection, expires and buy-back. On establishment of the lapse of the right to use urban cemetery, the method of how to deal with the things adhering to the land and cremains shall be stipulate by the law explicitly. In this way the civil system of the right to use urban cemetery shall be constructed completely.