Reconsidering The Relationship Between Building And Land

The relationship between the building and the land is different in Europe and in East Asia,the former seemed the building as a part of the land.While in East Asia,the building and the land are seemed as independent immovable properties,so that the holders could sell each separated.Thus,if there were no superficies as an adequate legal title,the building holder might have to tear down the building.This is the issue of different ownership for building and land.To solve this problem,China's mainland has established a legislative principle that "building and land being consistent".In other words,building accompanies land,and land accompanies building.However,if the holder mortgaged building and land to different mortgagees,then controversy arising.When Property Law goes into effect,there is only one adequate solution,which is the theory of repeated mortgage.When referring to the erected buildings,there comes an exception of legislative principle.Latter is a summary of the shortage of this principle,and hoping to find a better solution to deal with this issue.Facing the same problem,Taiwan adopts a legal superficies to be the relationship of the building and the land,in the situation of separated mortgage.While it refers to transfer,Taiwan adopts lease instead.The different regulations of mortgage and transfer has brought about huge controversy.It shall be uniformly prescribed as legal superficies.And the legal superficies is a legal easement essentially.Thus,this thesis aims at reconstructing the legal system of relationship between the building and the land in mainland.In particular,when creating a mortgage interest,there shall be deemed to be a legal easement.Another choice is legal superficies.However,considering the lack of such regulation,as well as an extremely different system of land law,legal superficies is not feasible.As for the issue of transferring,it could be the same with the solution of mortgage.