物权法视角下的我国墓地使用权问题探究
发布时间：2018-11-23 08:12
【摘要】：“人死为大,入土为安”一直都是广大中国人的生活习惯和情感理念,也是中国传统文化的部分体现。我国墓地①分为经营性墓地和公益性墓地两种,关于我国墓地使用权性质的界定、墓地使用权主体、墓地使用权的期限以及期限届满后的继续使用和转让问题也引发了专家学者和普通百姓的热议,但是这些问题归根到底都是在围绕着我国墓地使用权展开。 关于墓地,我国现行的法规规章有12个,而其中只有《殡葬管理条例》和《关于贯彻执行殡葬管理条例中几个具体问题的解释》与《物权法》相关。关于公益性墓地方面的法律法规更是年代久远,已远远无法解决现存的全部问题。虽然部分地区陆续出台了地方各自的相关法规,但这些法规位阶太低并且已经出现了矛盾。因此,对于墓地使用权的相关问题,还存在着争议。笔者从物权法的角度出发,分析了有关我国墓地使用权的相关法律问题,并对我国墓地使用权的法律制度构建提出自己的看法和建议。 首先,笔者介绍了我国墓地使用权的现状和相关法律规定,论述了墓地使用权的概念、分类和取得条件等问题。接下来,概括总结了不同学者对于墓地使用权法律性质界定的不同看法。大致有以下四种：一是可以把墓地使用权看作“特许用益物权”,二是将经营性墓地使用权作“租赁关系”理解,三是作为一种土地使用权来理解,极少数人认为可以借助无名合同将墓地使用权看作是一种无名物权。笔者对上述四种看法进行了讨论和分析,认为都有道理但又都不合适,所以笔者个人建议把墓地使用权看作一种与土地承包经营权、建设用地使用权和宅基地使用权并列的用益物权。在此基础上,笔者还分情况讨论了墓地使用权的各方主体,认为丧主是墓地使用权的直接权利人,而建墓主体是间接使用权人。最后,对于墓地使用权的流转问题,笔者在总结了学者们的不同看法后认为应该在原则上禁止墓地使用权转让,特殊情况除外。至于何为特殊情况、应该如何转让以及如何完善相关法律制度的建设,笔者也提出了自己的意见和建议。
[Abstract]:"death is great, buried for safety" has always been the Chinese people's living habits and emotional ideas, but also a part of the Chinese traditional culture. There are two kinds of cemeteries in China: commercial cemeteries and public cemeteries. The definition of the nature of the right to use the cemeteries in China, the subject of the use of the cemeteries The term of the use of cemeteries and the continued use and transfer after the expiration of the term have also aroused the heated discussion of experts and scholars and ordinary people, but these problems in the final analysis are around the right to use the cemetery in our country. There are 12 laws and regulations on cemetery in China, of which only the regulations on Funeral and burial Administration and the explanation of several specific problems in implementing the regulations on Funeral and burial Administration are related to the Law of Real Rights. The laws and regulations on public cemetery are old and unable to solve all the existing problems. Although some regions have introduced their own laws, but these laws are too low and have appeared contradictions. Therefore, there is still controversy about the right to use cemeteries. From the angle of property law, the author analyzes the relevant legal problems about the right to use the cemetery in our country, and puts forward his own views and suggestions on the construction of the legal system of the right to use the cemetery in our country. First of all, the author introduces the present situation and relevant legal provisions of the right to use the cemetery in China, and discusses the concept, classification and obtaining conditions of the right to use the cemetery. Then, it summarizes the different views of different scholars on the definition of the legal nature of the right to use cemeteries. There are four kinds: first, the right to use a cemetery can be regarded as a "usufruct right"; second, the right to use a commercial cemetery can be understood as a "lease relationship"; and third, it can be understood as a kind of land use right. Very few people think that the use of cemeteries can be regarded as an unnamed property right by virtue of nameless contract. The author discusses and analyzes the above four views, and thinks that they are all reasonable but not appropriate. Therefore, the author personally suggests that the right to use the cemetery should be regarded as a kind of right to contract management of the land. Construction land use right and homestead use right juxtaposed usufruct. On the basis of this, the author also discusses the main body of the use right of the graveyard, and thinks that the bereavement owner is the direct obligee of the right to use the cemetery, and the main body of the tomb building is the indirect user of the right to use the cemetery. Finally, the author concludes that the transfer of the right to use the graveyard should be prohibited in principle, except in special cases, after summing up the different views of the scholars. As to what is the special case, how to transfer and how to perfect the construction of the relevant legal system, the author also puts forward his own opinions and suggestions.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.182.1;D923.2
本文编号：2350881
[Abstract]:"death is great, buried for safety" has always been the Chinese people's living habits and emotional ideas, but also a part of the Chinese traditional culture. There are two kinds of cemeteries in China: commercial cemeteries and public cemeteries. The definition of the nature of the right to use the cemeteries in China, the subject of the use of the cemeteries The term of the use of cemeteries and the continued use and transfer after the expiration of the term have also aroused the heated discussion of experts and scholars and ordinary people, but these problems in the final analysis are around the right to use the cemetery in our country. There are 12 laws and regulations on cemetery in China, of which only the regulations on Funeral and burial Administration and the explanation of several specific problems in implementing the regulations on Funeral and burial Administration are related to the Law of Real Rights. The laws and regulations on public cemetery are old and unable to solve all the existing problems. Although some regions have introduced their own laws, but these laws are too low and have appeared contradictions. Therefore, there is still controversy about the right to use cemeteries. From the angle of property law, the author analyzes the relevant legal problems about the right to use the cemetery in our country, and puts forward his own views and suggestions on the construction of the legal system of the right to use the cemetery in our country. First of all, the author introduces the present situation and relevant legal provisions of the right to use the cemetery in China, and discusses the concept, classification and obtaining conditions of the right to use the cemetery. Then, it summarizes the different views of different scholars on the definition of the legal nature of the right to use cemeteries. There are four kinds: first, the right to use a cemetery can be regarded as a "usufruct right"; second, the right to use a commercial cemetery can be understood as a "lease relationship"; and third, it can be understood as a kind of land use right. Very few people think that the use of cemeteries can be regarded as an unnamed property right by virtue of nameless contract. The author discusses and analyzes the above four views, and thinks that they are all reasonable but not appropriate. Therefore, the author personally suggests that the right to use the cemetery should be regarded as a kind of right to contract management of the land. Construction land use right and homestead use right juxtaposed usufruct. On the basis of this, the author also discusses the main body of the use right of the graveyard, and thinks that the bereavement owner is the direct obligee of the right to use the cemetery, and the main body of the tomb building is the indirect user of the right to use the cemetery. Finally, the author concludes that the transfer of the right to use the graveyard should be prohibited in principle, except in special cases, after summing up the different views of the scholars. As to what is the special case, how to transfer and how to perfect the construction of the relevant legal system, the author also puts forward his own opinions and suggestions.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.182.1;D923.2
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