The Study On The Usufruct System Of Cemetery Under The Observation Of The Civil Code

In recent years，the disputes in relation to cemetery rights occurred more andmore frequently in our country which have become an intensified trend. Furthermore,china is a country with a historical tradition of body burial, which make descenantsof the deceased tend to buy a good cemetery not only to serve as a resting place forthe souls of the dead but to provide a place for sacrificing and expressing grief. So tospeak, the rights and interests on Cemetery concerns everyone in public.In general,the cemetery in our country consists of non-profit cemetery andoperational cemetery. Non-profit graveyards are mostly provided to people livingin the countryside, which belong to the collective organization and can be used bythe collective members for free. However, operational cemetery is provided to theurban residents for the burial of bone ash or remains of the deceased which isregarded as public cemetery for paid service and belongs to the third industry.In fact,the ownership of land in our country belongs to the state and thecollective only. For this particularity, the interests and rights on the cemetery isalways in conflict with the right of construction land use, the right of land rental andother rights ragarding real estate,which having seriously affected people’s daily life.What can be learned from servey is that the nature of the cemetery rights in ourcountry is not clear. At presnet,there are little provisions in respect of civil rights oncemeterry provided for in civil laws which resulting in a serious shortage ofprotection to the interests of the owner and its relatives of the cemetery. In myopinion, Cemetery cannot be ragarded as the object of personal right and should bedeemed as a kind of property attached to personality interests. Therefore,cemeterycan be firstly established as the subbject of property right.When it comes to the cemetery use right, the property law in our country hasnot yet defined the nature thereof，nor there are enough academic research on thecemetery use right theory. This article is going to discuss the deficiency of the creditcemetery use right on the restristion of the cemetery ownership, term of right,expropriation compensation, assignment of right, etc. As a result, I found that it is impossible for the credit cemetery use right to protect the cemetery efficiently andthere is big necessity and possibility to establish a theory of cemetery use rightattaching to the property rights. According to the principal of civil lawinterpretation，i classify cemetery use right as special kind of construction land useright in order to make up for the inadequacy of the existing system, and furtherlycome up e with relevant rules of the cemetery use right. I strongly hope that the civilcode been going to enact will pay much attention to the importance cemetery useright and formulate relevant rules of law to protect interests of persons relating to thecemetery use right.