The Research Of Public Easement Institution

Persons of land use rights obtain the land use rights from the state-owned land andcollective land, to exercise their rightstoland tenure, use, incomeand so on.But in the course ofthe exercise of the foregoing rights, the persons of the use rights will detriment the publicinterest in order to maximize their own interests.Therefore, in order to protect the publicinterest, the State may establish and comply with the law to control the Implementation ofland use of the persons of land use rights, and to compensate the special sacrifice suffered byit. The existing laws which control the land use overregulate the land use in case of landnon-expropriated. It’s invalid for some regulatory actions because that they do not meet therequirements of the public interest and the principle of proportionality of the Constitution. Atthe same time Although some regulatory actions in line with the protection of property rightsof spirit of the Constitution, but they have not compensated the economic impact of thepersons’ property of land use rights. Under the both cases, the law does not providecompensation or relief to the persons the land use right. It’s unfair of the persons of the landuse rights to bear the cost of realization of public interest, and to suffer the particularlysacrifice.So in order to regulate the national control behavior of the land use,this article proposeto build the public easement system in our country. It requires state control the land use by themeans of establishing the Public Easement, and it will resolve the issue of overregulation ofcompensation for the land use by two aspects: on one hand, before the State established thepublic easement on a particular land the persons of land use could refuse it, if it does notcompensate the losses suffered by the persons of land use. On the other hand, after the Stateestablished the public easement, the party to provide land have right to bring anadministrative lawsuit to the court for the request of the State compensation if they do not getthe compensation or enough compensation. If the land could not use reasonably economic byestablishing the Public Easement, the party to provide land have right to bring an lawsuit tothe court for State expropriation of their land and compensation; And if establishing thePublic Easement does not meet the requirements of the public interest and the principle ofpropriety and necessity, the party to provide land is entitled to ask the court to confirm theestablishment invalid. This paper, is divided into four parts:The first part is the basic properties of the Public Easement, which includes the conceptof a public easement, features, nature, relationships with the adjacent relationship and thePublic Easement, and the function of regulation of land use in the country.The second part is the references of the extraterritorial reaserches and doctrines relevantto public easement system.The third part is the obligations for the Public Easements of the land use control laws. bysorting the existing laws and regulations of land use control,which proves theConstitutionality of establishing the obligations for the Public Easements of the land use andfind that it ‘s also contrary to the property rights, fairness and justice guaranteed by theConstitution if lacking the compensation for economic Impact of property rights of thepersons of land use rights.The fourth part is the establishment of the legal system of public easement, whichdefines the elements of the Public Easements including the methods of public easementestablishment, the identification of the structure and the compensation measures of theobligations for the Public Easements. Specifically, the general provisions of public easemenshould be fixed in the "Constitution","Land Management Law" and "Property Law" throughlegislation, and at the same time the special provisions of it should be drew up bypromulgating the administrative regulations, which based on the mode of combining the"public law" and "private law", and establishing the legal system of public easemen in theform of special legislationt in our country.