China's utilization of underground space of the right to build a legal system, a number of issues Probe5297.doc

China's utilization of underground space of the right to build a legal system, a number of issues Probe Abstract: This paper analyzes the use of underground space of the right motivation generated by the legal system and its legal character, since the introduction of foreign-related legislation, based on the analysis of the use of underground space in China's legal system construction of the necessity, feasibility, and to propose concrete measures. Key words: underground space of the right to use the legal concept of ownership 1 Introduction The so-called underground space utilization right is on the rights of people below the surface according to the use of a range of space and the right to exclude others from interference. As a natural resource and social wealth, the land on which to survive and multiply in human carriers of life, but also human and social development of the material premise. Therefore, land use and development of related legal systems concerning both a country's economic development, but also mapping the degree of perfection of its superstructure. Followed the progress of science and technology, people use the land gradually from the surface extends over the surface and then extended below the surface. The late 19th century early 20th century, space power (including the floor space of the right and the underground space of the right) as a new type of right in the United States, Germany and other developed capitalist countries appeared in succession, has been recognized by most state laws. In contrast China's land legislation, at present there is no unity on the ground floor space of the right to legal norms, which is booming land use incompatible with the status quo. Therefore, in building our country's legal system of underground space of the right is imperative. Second, the use of underground space arising from the right motivation and the legal characteristics of (A) the use of underground space arising from the right motivation 1, underground space utilization arising from the right social and material dynamics Caused by the development of science and technology of land development and utilization of three-dimensional objective needs to be updated concept of land rights, "the use of underground space power" as a brand new property rights can be generated by driving forces. Human use of land depends on the extent and scope of the level of development of productive forces, especially the construction techniques and materials of the level of development. The 19th century before the industrial revolution, human use of land, generally flat surface to use the main. The completion of the industrial revolution, so that productive forces have been tremendous progress in human society, making all of the land from two-dimensional three-dimensional and use of all the steering and utilization. National industrial and commercial economy was booming, and thus contributed to the rapid development of urbanization in the world, so that the increasing scarcity of urban land resources and precious. The scarcity of urban land resources and civil engineering construction and technological progress here, so that human use of land extending in the air and ground, this is a three-dimensional use of land. Underground railways, underground streets, underground car parks, sewers and drains, etc., on the mushrooming number. Underground space is no longer attached to the surface, and became an independent value of the material. Consequent on the use of underground space in the form of law to regulate social development has become inevitable. 2, generated by utilization of underground space of the right theory of motivation In the traditional concept of land law and land law system, land ownership is based on the scope of the effectiveness of the surface as the center while the direct power from top to bottom. In other words, land owners have power in addition to the surface, the still air and land on the land have legal power. As land ownership of the land on the physical objects though can be divided into surface, air and land in the three parts, but in the legal system and social attitudes, the remains will be three as a whole. This concept of absolute ownership of land directly led to the abuse of rights. Exclusive private ownership of land, exclusive of land-use intensification of the contradiction between the public nature of the state began to land owners the right to impose restrictions on the use of space. 1 the relative concepts of land ownership and related legislation came into being, the use of underground space for the right to provide a legal basis and theoretical basis. (B) the utilization of underground space of the right to the legal nature 1, the right to independence and capacity of objects. Space, "because the Department of leaving the surface, on the ground into the air or underground space with separate power, and therefore with the traditional land ownership to the surface as the center while the upper and lower vertical power difference." 2 In other words, specific to the surface under a certain range of space can be freed from the surface and for the people of the development and utilization, such as the construction of underground shopping malls, amusement parks, and the subway, has a certain economic value, and can be confirmed by way of registration of its scope, and to the right to an independent control person, becoming the object of property rights. Underground space is a three-dimensional space, with a capacity of nature. The specific underground space and will not be because of people's use, develop or reduced consumption. It can be carried out according to their own needs during production and living, or construct buildings, or the laying of pipelines, or stacked items, they are not channeled to the impairment of space. 2, right content with the value and use value Marxism holds that "the principal value of an object needs to meet." The reason why a commodity has value because of its condensation of undifferentiated human labor. Underground space as an objective existence of natural resources, can be found for people, possess and use, will undoubtedly have value; when the space as a resource has been developed by people when used as it consumes a certain amount of socially necessary labor time, pool of undifferentiated human labor in general, it was of value. Owing to the value and use value, the ratio can be a certain amount compared with other commodities exchange, with exchange value, the rights of underground space may be paid in order to sell, lease or transfer. 3, the right way to achieve specificity. Underground space is based on the surface and the existence of a certain material carrier can be obtained from length, width, third year to determine the Vega; the same time, owing to its size of fixity can be regarded as real estate, and therefore, ways have to comply with its acquisition of real estate acquired the relevant provisions, that is registered as the right to recognition, publicity credibility is the sole legitimate way. Third, the use of underground space right outside the legislative status of In Western developed capitalist countries, in order to adapt to and protect the underground space development needs, in terms of policy and legislation have many clear rules, and in practice to be improved. Here only the United States, Germany and Japan as an example. (A) The United States On the legal tradition, the USA and France this stage a common law system, its traditions, including real property, including the rule of law has inherited the Roman law, such that the scope of land ownership, "on up to Sky," "Ha and geocentric" and does not recognize the buildings on the land as a single independent real estate. However, to the late 19th century, early 20th century, invented the airplane, the United States to admit that the legal profession in protecting the legitimate rights and interests of landowners at the same time, without prejudice to all the land within the limits of aircraft there in the land of others over the flight rights. 3 In this way, the so-called land ownership "on the up to Sky," "Ha and center of the earth," the legal principles that have been broken, the limited nature of the principle of land ownership is established, which the United States for the subsequent large-scale three-dimensional development of urban land movement has laid a legal basis. Beginning of the 20th century, 20 years, due to the sharp increase in urban population, the United States has entered an unprecedented three-dimensional urban land development and utilization of time. During this period, transfer, leasing has been provided a range of up and down the floor, underground space, to obtain the economic benefits of the phenomenon continued to occur. This kind of air, one specific "fault" as the right to set up the object, known as the "space power" (air rights) or "development rights" (Development Rights) In 1927, the United States, Illinois, to develop "on the railway over the space for lease and with the law" is to the U.S. legal system in the history of space on the right of the first statute. In 1958, the U.S. Congress to make interstate high-speed roads (Inter State High Way) and the next empty space above the car park can be used as the decision space concept of the right result has been spreading to more. In 1970, the U.S. authorities to use the initiative states, "Space Law" in this name space of the right to develop their own legal system. In 1973, the first in Oklahoma to complete the legislative, namely the famous "Space Law in Oklahoma" (Oklahoma Air space Act). The Act sets the right of the field of space-related research the case and the culmination of detailed provisions on the right of the space system, the U.S. power system, modern space, everyone was deeply marked with the imprint of the Act. (B) Germany Germany, the space on the right found in the earliest legislation in 1896, "the German Civil Code," Article 1012: "Land to be this way (on the ground right of way) other rights to the enjoyment of rights by setting the interests of the people, enjoy the land, the ground Set objects or underground work could be transferred or inheritable rights. " Therefore, "the German Civil Code," the space on the right system, the real power is still on the ground, but for the space system, that is to retain the building or other object for the purpose of the right to use other people's land space. However, because of the German Civil Code the right to include space on the ground floor, including the right of all the provisions of section 6 only has so often happened inadequate use conditions. For this reason, January 15, 1919, Germany, to develop a total of 39 separate provisions of the "right of the command on the ground" (Verordnung uber das Erbbaurecht), called the "land of the right order." 4 and so "on the ground of the right order", the German space power system has been greatly improved. (C) Japan In 1956, Japanese private law 18th meeting focused on the "Punishment and Correction by Jiede issues" as the theme of the conference is actually in the legislation for Japan to establish space power system as a theoretical preparation. In 1966, Japan amended the Civil Code, in section 269 of the two provides space for additional rights (the right to distinguish between the ground) system, namely Japan's current system of the right space. 269 Article 2, paragraph 1: "underground or space, as set down areas and working materials, or to the right of the subject as the ground. This case, the ground for the exercise of power, can set the behavior on the land use be restricted. " Based on the provisions, we can see the space on the right of the Japanese Civil Code, that is, refers to the land of others under the empty air, or space for the object of a particular fault set up a special right to the ground, that is, the right to distinguish the ground. Distinction between the right to object on the ground, for air or ground fault in a particular space. In line with the provisions of this distinction on the ground of the right, the Japanese Real Estate Registration Act Article 111, paragraph 2, specifically provides for the right to set the distinction between ground and the registration process. In accordance with section 111 of the Act, paragraph 2, set the right distinction on the ground, in addition to the requirement to register to set the purpose and ground rent during the existence of additional, must registered air or land in the upper and lower range, and the land use restriction agreement, etc. and so on; on the effectiveness of the registration is concerned, the registration of the right of entry into force of the ground for the distinction between the elements, that is, the non-distinction between registered on the ground can not have the right effect. Despite the fact that national legislation does not explicitly put forward the "underground space power" or "space underground (above) right" of the title, however, the system of underground space of the objective existence of the right and the related proposal of the concept is no doubt the concept of the traditional property rights revolution, for the conduct of underground space development as well as development of a theoretical basis. Reposted elsewhere in the paper for free download http:/ Fourth, China's utilization of underground space of the right of legislative status and Analysis At present, China's use of underground space on specific legislation is still blank, there exists only a single law-related and some local regulations. Such as the October 29, 1996 the Eighth National People's Congress passed the "The People's Republic of China Air Defense Law," Shanghai People's Congress passed the "Regulations of Shanghai Civil Defense," "Shanghai Municipal Planning Ordinance," "Regulations of Shanghai Civil Defense Project "and so on. Ministry of Construction on October 27, 1997 promulgated the "Urban Underground Space Development and Utilization of regulations", a chapter provides urban underground space planning, construction and project management, in order to strengthen the development and utilization of urban underground space management, rational development urban underground space resources to provide a legal basis. Is currently conducting an underground space legislation mainly Shenzhen Urban Planning and Land Bureau, the drafting of the declaration of "the use of underground space in Shenzhen City Ordinance (draft)" and the Shanghai Urban Underground Space Development and Utilization Management Legislative Study Group of the drafting of the "Shanghai Underground Space development and utilization of management approach (draft). " Needless to say, China