The Improvement Of The Easement System In China

In 2007,Chapter 14 of China's "Property Law" uses 14 articles to make specific provisions on easements.Since its establishment,it has played a unique role in practice.As a part of the usufruct system,it can not only adjust the real estate utilization relationship,but also make up for the lack of adjacent relation.However,with the continuous development of society and the more diversified use of resources,China's current easement system can no longer meet the needs of social life.So it is urgent to improve the system.Therefore,based on the basic national conditions of China,this paper analyzes and studies easement,points out the deficiencies of the current easement system,and puts forward the consummation concrete measure.This paper is divided into four parts except the introduction.The first part is the concept and functional positioning of easements in China.This part emphasizes that easement mainly adjusts the use relationship between real estate in practice,and points out that real estate not only refers to land,but also includes other real estate such as buildings and structures.This part analyzes the function of easement deeply on the basis of the comparative analysis of concepts,and points out that the existing functions are mainly to make up for the shortage of adjacent relation,supplement the principle of numerus clauses and increase the value of the dominant tenement.The existing functions are limited to meeting the needs of private interests without considering the needs of public interests,which may restrict the generation of new easement and lead to the lack of potential development of easement.With the development of society,issues related to public interest such as environmental pollution and the protection of historical style buildings are increasing,so the existing functions of easements need to be expanded.Based on this,this part positions the easement function,pointing out that besides satisfying private interests,easements should also have the function of fulfilling certain public interests.The second part is the improvement of the types of easements in China.The extension of function is beneficial to the improvement of easement type.By addingspecial easements such as public easements and own easements can overcome the deficiency of traditional easement.The public easement provides a new way to solve the problems involving the public interest and can play a unique role in environmental protection and the protection of historic buildings.The own easement will have a positive impact on the future town planning,community style and pattern formation.In addition,in view of the incompleteness of easement type in legislation,this part study and analyse foreign legislation.It is suggested to adopt the legislative mode of combining general provision and specific guidance,and to add the specific type of easement,so as to give play to the guiding function of easement.The third part is the consummation of easement establishment system in China.Under the registration confrontation rule,easements are established from the date the contract becomes effective,and registration is only an element of confrontation,not an element of effectiveness.This rule is not conducive to protecting the interests of owner of dominant land and jeopardizes the stability of the transaction.In order to overcome the defects of the registration antagonism rule and clarify the complex transaction relationship,this part proposes to change the registration antagonism rule into the registration effective rule.In order to take registration as an effective requirement,the effectiveness of registration must be strengthened,so it is urgent to clarify the registration scope of easement.This section recommends that the purpose and scope of the easement be briefly and clearly stated in the register.It is also recommended that easements be registered on both the service and demand register.The fourth part is the perfection of the effectiveness of easements in China.The easement has no exclusivity,and other usufructuary rights or debt rights can exist on the same real estate as the easement.When the obligee makes use of the realty,it is necessary to clarify the order of exercising the right.Registered rights have the effect of confrontation and should be superior to unregistered rights.If multiple rights are registered,the right holder shall exercise the rights in the order of the registration time.If they have not completed the registration,the obligee shall exercise the right in the order of the establishment of the right.When the right holder transfers the right on the real estate,it should be noted that the easement has the effect of subordination to praedium dominans.The easement can only be transferred upon the assignment ofpraedium dominans,not with the transfer of its rights.