Research On The Obstacle And Breakthrough Of Property Law In The Road To Be Public Of Gated Residential Community

The CPC Central Committee and the State Council recently raised the views that "the built gated residential community and the unit compound should be opened up gradually to realize the internal roads to be public",which aroused public concern and controversy.Subsequently,the Supreme People's Court said that there was still a process through the legislation so as to implement the view under the rule of law.This thesis is to discuss the obstacle and breakthrough of property law of the gated residential community's road to be public,and is divided into four parts.The first part puts forward the residential community's road to be public encountering the implementation resistance,and makes a preliminary investigation on the legal obstacles.The second part makes an analysis on the applicable path of the existing property law system in the process of making the community road to be public,including making an analysis on the related system which is obviously not applicable to the reform of making the community road to be public,and on the legal obstacles to the application path of the collection system and the early recovery system of construction land use right as the path of the road to be public reform of the residential community.The third part makes a survey of the legal basis of the community road to be public in the perspective of property right socialization from the dimension of comparative law,and concludes that the theory of "social obligation of property right" can not bear the weight of the reform of community road to be public,the theory of "restriction on the exercise of property right" is not suitable for the reform of community road to be public,and the theory of "public collection of property right" conforms to the reform of community road to be public,and on the basis of this,further gives a consideration factor on which the theory of " restriction on the exercise of property right " or "public collection of property right” is applicable.The fourth part gives some suggestions on how to break through the obstacle of property right law faced by community road to be public,based on the theory of " public collection of property right " which conforms to the reform of community road to be public.