Research On Several Issues Of The Easement System

The easement system is an ancient system in civil law and has gone through many changes since it was established in the Roman law. On the basis of the modern and contemporary civil law, the paper firstly introduces the system's basis of foundation and its value function in the civil law, and then analyses the concept of the easement system and its constitute completely. At last, after the review of Romano-Germanic family, the paper analyses the provisions, related to the system, in the draft of Civil Code, and I put forward my own suggestion. The clearness and separation of the property right can enhance the wealth of the society, which is the reason that the civil law defines the real property. The general social basis of the foundation of the easement system is the scarcity of the real property and the importance to human life. And, the special social foundation of the system lies in the adjoining of the real property and the mutual use arising therefore. In the modern and contemporary civil law, the theoretical basis of the easement system is the idea "self-government"and "standard of right". The paper deals with the valuation of the easement system from three aspects. Firstly, the paper analyses its value as a judicial system. Due to the limited knowledge and limited ration of individuals, the adjoining of the real property cannot be adjusted completely by public law and social law, and as for the concrete, microcosmic relationship, it still depends on the party's autonomy. That is the relationship which should be adjusted by the easement system in the private law. Second, the paper analyses the value of the easement system in the private law system. When the users of the real property want to enhance the value of his real property by making use of adjacent real estate, the cost to buy the ownership of the adjacent real estate becomes high. The cost for setting an obligatory right on the real estate is lower, but because of the relativity of the obligatory right, once the adjacent real estate is turned over, the user cannot make a stand against the grantee. So using the real estate like this is unstable. At this time, the user of the real estate can set easement on the adjacent real estate, because this system has the character of opposability and the cost is lower. Third, the paper analyses the value of the easement in the special situation of China. With the further development of China's market economy, second-class land market will come into being, and the easement system has a great importance in this process: the user of land can program the using of the real estate with the help of the mode of self-easement; the users of land and the other persons who hold rights on real estate can realize the increase of the value of the real estate and also this system can put an end to some debates in reality. From the definitions made by different scholars, we can find that the meanings of easement are almost same. However, under the different legal background, the range of adjustment of easement is different, which spreads from core fields to edge fields. We cannot catch the meaning of easement only by definition, and it is necessary for us to study its specific types. Firstly, as far as the subject of easement is concerned, the owner of the neighboring real estate may set or enjoy the easement on it. In this paper, the writer discusses the question whether the same owner of two loafs of neighboring real estate may set easement on them, that is, whether we should adopt the type of self-easement. Self-easement originated from German law, but it had beenembodied in different types in Roman law and French law. Establishing the type of self-easement will benefit for widening the thought of self-government and exerting real estate, and we should adopt it. Owning to the character of objecting to matter of the system, other persons who hold rights on the real estate may enjoy easement which has been in exist. Persons who hold usufructs on real estate may set easements for themselves or other persons, but they should not be beyond his purview. Creditors on real estate may set easements for themselves not for others. Secondly, as far as the object of easement, the Roman law adopted the policy that the land absorbed the buildings on it, therefore, the object of easement included buildings. The modern and contemporary civil law adopted another policy that the land and the buildings on it were treated separately because of the high value of buildings. Under the circumstances, if it is necessary that the object of easement includes the buildings on land, the conception of easement should be modified, but few countries made it because of the stability of law and the reliance on the same way. In addition, with the development of technology and the consummation of register technology, the object of easement spreads to specific space, and space-easement has appeared. Lastly, as far as the contents of easement are concerned, the civil law restricts it and the contents of usufructs on real estate in a different way. The latter has been fixed in jus rerum, but the former is still authorized to the self-government of subjects. This character has made the system become a tool of moderating the principle of fixed rights in rem, which has been proved by analyzing the formation of usufructs on real estate and the developing trend of easement. In the French law, legislators hope to deal with entirely the neighboring...