Analysis On The Legal Characteristic And Protection Of The Use Right Of Public Cemetery

As early as in the primitive society of human beings,there is a concept of ghost. After being continuous passed on by word of mouth, the ancestors have become a strong and mysterious spiritual power to bless posterity in the unseen world and descendants believe that they can achieve healthy and happiness by worshiping their ancestors or ancestral graves. From ancient times to the present, China has always been advocating the culture of worshiping ancestors, and the Chinese will mourn for the deceased ancestors whether they are emperor or ordinary people. The relatives of the deceased pay their tribute to by worshiping grave. Besides, cemetery has become one of the powerful places to link the living to the dead and has a strong spiritual function. As a result, cemetery with pastoral or teaching function has a great profound significance for all the people. The protection of the cemetery is also closely related with the lives of people from all walks of life. With the accelerating urbanization and explosive growth of population, the land resource becomes increasingly scarce. Besides, Chinese government makes large-scale expropriation or requisition on land to meet the needs of urban development and sustainable economic growth. As a result, the disputes on land have arisen gradually all around the country. Analyzing the current situation of protecting public cemetery in China, I find that there is no effective protection on public cemetery under the existing legal framework. The reason lies in the lack of the cemetery regulation in civil law. There is no clear legal provision on the protection of public cemetery while how to protect the public cemetery by law can only be derived from some basic legal principles.On December 22, 2014,the State Council published the Real Estate Registration Interim Regulations, which fails to put the use right of public cemetery into the system of registration of real estate. At present, the legal research on public cemetery system is neither sufficient nor complete. However, there are mainly two doctrines on the right to use the public cemetery and they are doctrine of creditor’s right and doctrine of property right. In fact, the difference is between two doctrines that whether considers the right as a property right or creditor’s right. Based on China’s specific national conditions and the development situation, we discuss the basic nature and major functions of public cemetery. Although we advocate that the public cemetery be included in the adjustment range of the property law, we still need to restrict the time limit of the right to use public cemetery in order to achieve an effective and reasonable protection of the public cemetery.