A Study On The Protection Of The Rights Of Rural Cemeteries From The Perspective Of Property Law

In the process of urbanisation in China,the value of rural cemeteries is increasing.Disputes over the infringement of rights and interests in rural cemeteries are common and have even given rise to serious group conflicts.The law has not yet clarified the characterisation of the rights of rural cemeteries and the scope of their protection.It is therefore necessary to re-examine the issue of the protection of rights in rural cemeteries.The issue of protecting the rights of rural cemeteries consists of two main aspects:one is the necessity of protecting the rights of rural cemeteries;the other is how to effectively protect the legal rights of rural cemeteries.The first part of this paper focuses on the necessity of the protection of rural cemeteries,mainly including:an analysis of the current judicial status and legal system of the protection of rural cemeteries under the current legal framework,the social necessity and jurisprudential basis of the protection of rural cemeteries,and an analysis of the contradiction between the private rights of rural cemeteries and the funeral reform.The current judicial decisions on rural cemetery disputes are confusing,and the results of the decisions are often contradictory.This is rooted in the fact that China’s current legal framework does not provide enough protection for rural cemeteries,the rights of rural cemeteries are unclear and the relevant system is missing.The protection of rural cemeteries has a strong social consensus in China and plays a large role in maintaining social order and the spiritual and emotional support of the people in rural areas.At the same time,with the introduction of the Civil Code,the law has put forward higher requirements for the respect and protection of human beings,especially the protection of personality and spirituality.Under the combined influence of social consensus and legal requirements,there is an urgent need for the protection of rural cemetery rights to be realised.The protection of rural cemetery rights and the funeral reform form a legal conflict on the state of facts.By combing through the successive funeral reform documents,the core concepts and basic values of the funeral reform are explored and weighed against the protection of rural cemetery rights in order to explain the legal conflict on this state of facts.The other part of the paper focuses on how to effectively protect the rights of rural cemeteries.This is done mainly by analysing the types and essential properties of rural cemetery rights,identifying their property rights and clarifying the essential differences between them and claims.Then,the approach is to use the mitigation of property rights as a way to break away from the rigid property rights doctrine and obtain the protection of property law for rural cemeteries.The Korean proposal is used as a reference and is based on China’s specific reality to determine the protection scheme for rural property cemetery rights.This paper argues that,under the current legal framework of China,the property rights of rural cemeteries can be determined by means of guiding cases,and the basic content of rural in rem cemeteries can be determined by means of judicial interpretation,while other rights and obligations beyond the basic content can be established by local courts according to local customs.