A Study On The China Cemeteries’ Using Rights

Influenced by the traditional funeral culture,the Chinese people always maintain the concept of "being buried to rest".For the disposal of the deceased’s remains,the way of burial is often used.After the founding of the People’s Republic of China,in order to save land resources and get rid of feudal superstitions,the state began to vigorously implement the reform of funeral and interment,and gradually replaced the ground burial with cremation.In this process,there appeared two kinds of cemetery forms: commercial cemetery and public welfare cemetery.Profit-making cemeteries are for urban residents,which was first stipulated in the Interim Measures for the Administration of Cemeteries issued by the Ministry of Civil Affairs in 1992.The right to the use of commercial cemeteries is not an official concept,but a concept put forward by the academic community for the convenience of research.The existing literature does not accurately define this concept.There are three rights in the commercial graveyard,which correspond to the state,the cemetery operator and the cemetery user respectively.The right to the use of the commercial graveyard discussed in this paper is the third right,that is,the right enjoyed by the users of the commercial graveyard.Graveyards have extraordinary spiritual significance in Chinese traditional culture,and modern commercial cemeteries also carry this significance,which makes cemeteries show the characteristics of personality objects,which are formed by the attachment of personality interests to objects.Therefore,the property of the right to use commercial cemeteries needs to be confirmed urgently.The right to the use of commercial cemeteries contains the dual functions of culture and society.The main function of the right to use commercial cemeteries is to guarantee the right to rest in peace of the deceased,the right to hold a memorial ceremony of the living and the reasonable implementation of the reform policy of funeral and interment.In terms of the nature of the right,there are two views about the right to use the commercial graveyard in China: creditor’s right theory and real right theory.The author more agrees with the real right theory.In addition,the scholars who support the theory of real right make a detailed identification of the right to use commercial graveyards according to different types of real right.On the basis of summarizing all kinds of viewpoints and analyzing from the perspectives of the subject and object of the right,the content of the right and the social concept,the author concluded that the right to use the commercial graveyard should belong to the right to use the construction land in the real right.In reality,through the summary and extraction of the current relevant legal documents and six typical cases,it is found that there are also problems in the legislation and judicatory of the right to the use of commercial cemeteries,such as unclear definition of the right,lack of provisions on the term of use,circulation,and excessively high price caused by marketization.The key to these problems is the unclear definition of rights.In view of this,the last part of the paper proposes suggestions on the construction of the system of the right to the use of commercial cemeteries from the perspective of the right to the use of construction land,in order to provide suggestions and suggestions for improving the system of the right to the use of commercial cemeteries in China.