Cemeteries Protection In Civil Law From The Perspectives Of Personhood And Property

China should construct the property use right system of the cemeteries.It is the central argumentation of this dissertation.This dissertation discusses the mechanism of the civil law in the cemeteries protection,explores the historic origin of the cemeteries protection,analyzes the merits and demerits of the right attributes of the cemeteries,attempts to comment on the status quo and finds out the reasons.Chapter 1 is the introduction.The reasons of the selection of the dissertation topic are traced back and the significance of it is analyzed.This chapter also combs and summarizes the studies of the cemeteries protection from the perspective of personhood and property in China and around world.In addition,the research objects are limited to make the arguments more accurate and powerful,and the research methods are introduced as well.Chapter 2 discusses the origin and the development of the cemeteries.The skeleton of the ancient Chinese cemeteries system is clearly shown in the aspects of legal systems and legal thoughts.Based on the study of history,archeology,anthropology and folklore,the role of abstract personhood is revealed,thus,justify the validity of the cemeteries protection.The dissertation also probes into the influence of traditional funeral custom on basic national policies and prompts the historical inevitability of the cemeteries protection.Chapter 3 discusses the mechanism of civil law in terms of the cemeteries protection.The rationality of the cemeteries protection is justified in two aspects.Firstly,the law attributes of the tangible remains are analyzed.Researches in the field of history,logic,ethics and interpretation Act indicate that the tangible remains can be applied to the personhood rules because they have ethic and human nature implication,as a result,it can be transferred but not traded with the characteristic of specificity.Meanwhile,by integrating status rights and human dignity with the construction of the right of tangible remains,establishing and applying the principle of compactness of human dignity,the inadequate interpretations by dichotomy theory are amended and evidences of legal properties of the cemeteries are provided.Secondly,the legal property is evaluated.Under the humanistic feeling of civil law,cemeteries with the human remains contain the ingredient of personality.The author claims that personhood is the legal property of the cemeteries.Chapter 4 demonstrates the advantages of the property right of the cemeteries after performing full analysis.In view of the complexity of land ownership,the ownership and the use right of the cemeteries coexist in China.Cemeteries,as objects,show the reasonability of the protections.Because of the deficiency of the creditor use right of the cemeteries in the aspects of ownership restriction,right limits,inverse condemnation and right transfer,it cannot effectively protect cemeteries and are inferior to the property use right of the cemeteries.This chapter serves as the theory foundation of the property use right system of the cemeteries.Chapter 5 discloses its realistic possibility by reflecting on the status quo of the cemeteries protection in China and puts forward the reasonable measures of constructing the proper use right system of the cemeteries.The cemeteries in China are divided into private cemeteries and public cemeteries.By retrieving the “lost” rights of cemeteries,rearranging the judicial cases and administrative practical experiences and discovering folk custom,the realistic foundation of the use right system of the cemeteries is laid.Nowadays,the interpretation of civil law can be applied to categorize the use right of the cemeteries as a special part of construction use right to remedy the weakness of the current systems.In order to alleviate or erase the conflicts on the right of the cemeteries,such suggestions as establishing the status of common law,regulating the private cemeteries,setting up the use right of the cemeteries in usufructuary rights to work for public cemetery when enacting the civil code are presented.Chapter 6 is the conclusion.It summarizes the main points and main contributions made by the author and makes an account for the further research.The second,third,fourth and fifth chapters are the argumentation parts in which the relationships of each viewpoint are progressive and the contents are closely linked by the demonstration thoughts based on personhood and property.