Research On Legislation Of Graveyard Use Right In China

In recent years,with the deepening of the reform of the funeral system in China,the disputes concerning the rights and interests of the cemetery have become more and more fierce,and the land resources of the dead and the living people have been nearly fierce.The incident of moving the grave from the Zhixingyuan to the Zhoukou flat tomb in Henan and then to the coffin in Jiangxi has caused widespread concern in the news media and public opinion,and once again pushed the cemetery,a livelihood issue,to the forefront of society.The reason is mainly because the legal system of the cemetery rights in China is imperfect,and even there is a legislative gap,so that the cemetery rights of the close relatives of the deceased are repeatedly violated and cannot be protected according to law.By combing the laws and regulations on cemetery in our country,it is found that except for the Regulations on Funeral Management,the rest of the laws and regulations are directives such as departmental regulations or notices,while the Regulations on Funeral Management are administrative regulations with higher legal ranks.However,from the classification of public and private law attributes,it belongs to the category of public law.Since the purchase subject of the cemetery use right is based on the principle of equality,voluntariness and fairness of private law,the transaction object is selected.Therefore,as the public burial management regulations of the cemetery,it is inevitable that there will be more than enough power in the dispute over the use of cemetery rights in the private law.In addition,China’s legal provisions on the use rights of cemeteries are not clear,which not only causes the various words of the theoretical circles,but also can not solve the practical problems of cemetery circulation,use period,reasonable termination and ecological environmental protection.Therefore,the issue of the right to use the cemetery is urgently required to establish a legal system.In addition to the introduction and conclusion,this article is divided into the following five parts:The first part is the basic theory of the right to use the cemetery.This section clarifies the concept,characteristics,historical evolution of the cemetery and its right to use,and the current status of legislation on the use of cemetery.By reviewing the development history of the cemetery use right since the reform of the funeral system in our country,this paper analyzes the legal status quo of the national and local cemetery legislation,further clarifies the legal support of the legislative protection of the cemetery use right in China,and lays a theoretical foundation for deepening the research.The second part is the legal property of the cemetery use right.This part explores the advantages and disadvantages of the existing regulations on the use of cemetery by analyzing the property attributes of the cemetery and the attributes of the interests of the cemetery and the credit,property,usufructuary and franchise rights of the cemetery.Although the claims of creditor rights,the theory of property rights,the theory of usufructuary rights and the right to use concession rights have advantages and disadvantages in the protection of the right to use the cemetery,through comparative research,the author believes that according to the statutory principle of property rights,the legal property of the right to use the cemetery should be defined.It is a special right to use construction land,so as to better protect the personal property interests of the close relatives of the deceased.The third part is the legislation of the cemetery use right and the necessity and feasibility of the legislation.Based on the analysis of the legal attributes of the cemetery use right,this part puts forward the problems of the cemetery use right legislation,that is,the legal attribute is unknown,the publicity mechanism is imperfect,lack of effective circulation channels,the rights period is different from the service life,and the termination mechanism is lacking.etc.Then the necessity and feasibility of the legal system for the use of cemetery were elaborated,which laid a realistic foundation for the countermeasures.The fourth part is the comparison and enlightenment of the regulations on the use of cemetery.Based on the investigation of the system of cemetery use rights in the extraterritorial law,this part conducts comparative research on the United States,Germany and Chinese Taiwan,and obtains relevant legislative enlightenment by summarizing the extraterritorial experience.Due to the different cultural customs and customs in different regions and the different legal systems for the use of cemeteries,the United States has determined the property rights of its cemetery in the form of case law.The rights of German cemeteries are managed by the states and are provided before the protection of the ecological environment.The property rights law attribute,although the Taiwan area is a vein of Chinese traditional culture,its cemetery rights system is completely different from the mainland,and its civil law clearly stipulates the use period and circulation channels of the cemetery.By summarizing and summarizing,the author believes that the extraterritorial legal experience is worth learning,but because China has a special national situation,it still needs specific analysis.The fifth part is the countermeasures for the legislative issue of the cemetery use right.This part is based on the property rights law attribute of establishing the right to use the cemetery,improving the publicity management system of the cemetery use right,regulating the burial land use right transfer mechanism with appropriate restrictions,implementing the cemetery use period and the use fee separation mechanism,and improving the legal norms for the termination of the cemetery use right.The aspect puts forward the relevant countermeasures for the legislation of the cemetery use right in China.The author believes that the legislative protection of the right to use cemetery in China should not only be close to the current people’s livelihood,but more importantly,it must conform to the basic strategy of the rule of law society in China,and improve the legal guarantee mechanism of the right to use cemetery in China under the basic premise of protecting the ecological environment.