On Building The Public Easement System In China

With the promulgation of "Opinions of the CPC Central Committee and the State Council on Further Strengthening the Management of Urban Planning and Construction",the building of block system becomes the current hot debate.The implementation of the block system is to solve the urban traffic congestion,so that the city would be construct orderly,and operate efficiently,finally to meet the needs of public interest.There is a need for legal protection for the implementation of block system.We need to protect the owners' real right who suffers a lot from the impact of the block system from the law.This impact is reflected in that the district roads,green spaces and other public places,public facilities,etc.are no longer part of the owners of the common part,and the right to use construction land will no longer be shared by the owners.The current "property law" provides the expropriation system as the solution to this kind of problems.Not only the expropriation system infringes the owners' shared rights,but also increases the cost of system implementation.As the system is often forced to set up,resulting in having conflicts between the owners and the government,and intensifying social contradictions.In general,the key to resolving these problems is to balance public and private interests.When choosing a path to solve the problem,we should take the system as the standard in which we would be able to balance the interests between public and private.Choosing the public easement system as a solution to the problems which caused by the block system is a big advantage,because it can promote the reform of block system smoothly by the way of negotiation,without changing the right.Because of that there are no provisions on the public easement system in the current law,so we need to build it.In this paper,the author built the public easement system from the whole and the specific levels,by learning from the legislative experience of other countries,and combining with the consideration of the building of our block system.Building the public easement system on the whole level is to do the macro support for building it on the specific level.Building the system on the specific level is to provide a viable path to the problems that caused by the building of the block system.This paper is divided into four parts:The first part is to elaborate the concept and the nature of the public easement,and analyze the current situation of the legislation of the public easement system in our country.The second part,the author mainly analyzes the impact of the owners' rights that caused by the building of the block system and the solution provided by the existing law.Firstly,the author analyzes the impact of property rights caused by the block system.Secondly,the author elaborates the three solutions provided by the Property Law,namely,expropriation,adjacent relation and easement system.Finally,the author analyzes the dilemmas that the three paths may encounter when solving the problem that caused by the building of the block system.The third part,the author mainly analyzes the advantages of using the public easement system to solve the problem of the block system.The legal advantage is that it is in line with the"principle of proportion","voluntary principle" and "good faith principle".The advantage of implementation is that it reduces the costs,and eases the resistance.The fourth part is the establishment of the legal system of public easement.First of all,the author studies the experience of extrajudicial public easement system legislation.Secondly,the author elaborates the overall consideration of the public easement system construction in our country from five aspects.Finally,the author constructs the public passing easement of our country as a solution to the problem,by the comprehensive consideration of the characteristics of the block system construction in our country.The author constructs the public passing easement mainly from these four aspects,the scope of rights,the rules of establishment,transfer and termination,compensation and relief.