Research On The Use Of The Real Right Legislation Of Chinese Profit-making Cemetery

As the Chinese nation's emotional concept for thousands of years and the emotional model for people to treat the dead, the old sayings that the dead should be respected greatly and the dead should be buried peacefully respectively count enormously in China's traditional cultures. Due to the backward law-making in China, some lawbreakers see the graveyard-digging as the tool to make money, which is more and more serious. However, as the phenomenon of “graveyard on due date” emerges in many cities, the issue of graveyard is again popped into people's view.The nature of graveyard can be divided into two kinds in terms of ownership in real right: public welfare graveyard and profit-oriented graveyard. Based on the right to use, this article will focus on the nature of profit-oriented graveyard and the legislation of relevant real right. A lot of issues on how to define the nature of graveyard right to use, who is the party of graveyard right to use, how long will be the graveyard right to use, how to lengthen the right to use, how to make over and how to end the graveyard right to use and so on and so forth have raised many experts and scholars' concerns and people's discussion. In fact, it is the the imperfect law-making of graveyard right to use in China that contributed to those problems.Besides the introduction and the conclusion, the article can be divided into the following four parts.The first part of this article will elaborate the current state of law-making system with regard to the graveyard right to use and accordingly put forward to problems existing in the law-making system. The graveyard right to use is not a legal term in our country at present, and we have not made it clear, “the graveyard right to use” now is only a temporary term when scholars in academic circles research the problems about the use of the graveyard. The graveyard in our country can be divided into the profit-oriented graveyard and the public welfare graveyard, however, this paper will mainly discusses the profit-oriented graveyard, and put forward issues on the acquirement?transfer and termination of the profit-oriented graveyard right to use,In the second part of this article, some basic definitions concerned on graveyard right to use and some different understandings focused on the graveyard right to use in the circles will be stated and lastly, some other doctrinal interpretations on the nature of graveyard right to use based on the current theory will be simply generalized. There will be four in general: the first one is to take the graveyard right to use as the “chartered real right for usufruct”; the second one is as the contract of tenancy in the contractual relationship; the third one is as one of nation's land usage rights; and the last one is as innominate contract, namely innominate real right. Based on the rough thought and research in terms of the precious four understandings, the author claims that none of them are totally reasonable. Therefore, the author advises that the graveyard right to use can be regarded as a real right for usufruct with construction land use right, contractual right of land and right to the use of curtilage side by side.In the third part of this article, the author also puts every real right party of the graveyard right to use into consideration according to different situations, considering that the dead party should be the direct right person who owns the right to use and the graveyard-building party only can own the right indirectly. In terms of the transfer of graveyard right to use, with some other understandings of graveyard use right's nature concluded, the author holds that the graveyard right to use is forbidden to transfer by principle with some special situations exclusively. As to what is a special situation, it should be specific analysis. Fourth part Finally, aimed at how to perfect the law system of graveyard right to use and the ending factors of right to use, some suggestions and pieces of advice will be put forward to accordingly. The author hold the view that the graveyard innovation should be associate with social guidance, and state the way of social guidance and its function briefly as well. Besides, the author put forward own ideas and suggestions on how to perfect the way of getting the profit-oriented graveyard use right, how long the use period will be and how to transfer and terminate it.By briefly stating the new introduced suggestions on promoting environmental funeral and interment in China, the article once again puts emphasis on the significance of issuing the law-making of profit-oriented graveyard right to use. The suggestions show that the problems of graveyard land resources have been attracted attention in China, which indicates that that national system of profit-oriented graveyard right to use should issue the relevant law regulations in order to fill the law blank with regard to the profit-oriented graveyard right to use.