Research On The Right To The Use Of Commercial Cemetery In The Perspective Of Property Law

With the soaring of the commercial cem etery prices in recent years,a series prob lem of the commercial cemetery has begun to cause so cial concern.Expressions like “trem endously overpriced cemetery”,“cemetery expired tide”,“cemetery speculation” have long been commonplace.Throughout the history of the use of the cemetery,we learn that the problem of commercial cemetery has not attr acted enough attention in legisl ation.Laws and regulations on the right to use the commercial cem etery cannot provide a strong legal basis for the judicial practice.As the research on this issue is not deep and comprehensive enough,further research is still necessary.There are three issues that cause the most concern in academia and society: what is the nature of the right to the use of commercial cem etery,how long can it exist and h ow to dea l with it af ter the expir ation? The nature of th e right to the use of commercial cemetery decides how to pro tect the user's rights.Compared with cred itor's rights,there are m ore advantages o f real ri ghts in protecting the user of the commercial cemetery.Therefore,the writer wants to reestablis h the basic system of the right to the use of commercial cemetery on the basis of Property Law after analyzing the existing problems.This paper is divided into four parts in addition to the introduction.The first part of the thesis introduces som e essential problems including the concept of cemetery and the commercial cem etery,the difference of the commercial cemetery and the public cemetery on the units,the approval process,the way of obtaining the land and the acquisition of the right to use ce metery,the concept and characteristics of the commercial cemetery,the birth and developing process of the right on the use of commercial cemetery.The second part s tates the pres ent situation on legislation and judicial practices and points out the existing problems: First,the legal force of existing laws and regulations is weak,which cannot provide a strong basis for judicial practice.Second,the unclear nature of the right on the use of commercial cemetery leads to the user's right cannot be protected.Third,it is difficult to unify the understanding of the us ing period.Fourth,it is unclear of how to deal with the commercial cemetery which leads to the conflicts of interest between the two sides.The third part describes foreign legal regulations and practice situation on the right to the use of cemetery,and m akes a com parison on the sys tem in dif ferent countries among Germany,United States,South Korea and Sweden.Then the paper notes that m ost of foreign countries define the right to the use of ce metery as a kind of real right.And these countries have clear definitions on the conten t of the right,the using period and the protec tion of the right.Finally,the paper notes what we can learn for reference.The fourth part m akes a proposal on the re construction of the right to the use of commercial cemetery.Firstly,it introduces the theoretical controversy about the nature of the right to the use of comm ercial cemetery,and points out that this right should be protected by Property Law.For cemetery unites,it is a kind of construction land tenure.For cemetery user,it is a kind of exclusive right to the use of construction land.Secondly,the right to the use of commercial cemetery results from the contract of cemetery purchase contract.So changes of this kind of right should be brought into real estate registrati on system.Thirdly,the duration of this right is equal to or less than 50 years which is depend upon the agreement between the cemetery units and the user.The right to the use of commercial cemetery should be allowed to renew for two tim es with 10 years for each,then the urn should be placed in three dimensional installations or eco logical burial places.The content of the right should b e limited on maintaining,removing and memorizing,etc.Finally,the users should be protected through the right of real claim.It is quite n ecessary to empower users the right to request compensation for spiritual dam ages to build an integral conservative m ode between the cremains and the commercial cemetery.