중국 물권법상 용익물권에 관한 소고

A Study of Real Estate Usufruct in Chinese Property Law

Based on the socialistic land ownership, such as the socialistic joint ownership in the land system, China would recognize the land as the national ownership and collective ownership only and the right of private property for the land will not be permitted. However, the using right in accordance with the land using right system has even the restriction of the using period; but actually, it comes nearby to acknowledgement for the land ownership to the private to be possible to assignment, lease and mortgage establishment of the land using right. However, even though the land ownership right will be recognized to the private, it is also far distance from the right of private property in the capitalism countries. Since the nation is an owner of the land in China and the nation puts the severe management and control to the right of the land use, it has the equivalent differences from the private property system or the right of private property. With this background and purpose, the present thesis is composed as follows, focused on Chinese Property Law and the right of using of land. China has a unique management system for land usufruct. It originates from nationalization of land in order to maintain socialistic public ownership of land. Land in metropolis belongs to the state, and land in agricultural district belongs to a community. In other words, ownership is not given to any individual; only usufructuary right is permitted. As a result, land usufruct in China must be comprehended with an exclusive conceptual interpretation. To be more specific, land usufruct is a separate and independent concept from land ownership. The Chinese Property Act Law of Property issued 2007. 10, identifies agricultural land usufruct(土地承包經營權), state owned land usufruct(建設用地使用權), and community owned usufruct(宅基地使用權) that are similar to superficies, and servitude. The distinction is made based on the different form of ownership of land-state ownership, community ownership, agricultural district ownership, etc. Especially, the recent induction of usufruct, which had been banned for long time in China, needs to be examined carefully. However, the contents regarding land usufruct in the first draft are extremely brief and inaccurate and expected to have many controversial issues on interpretation. Therefore, this study focuses on the real estate usufruct in Chinese Property Law, the changes of the agricultural system and the presentation of real estate usufruct in Chinese Property Law and submits a new data on the problem of the real estate usufruct. Ultimately, this study focuses on the problem to be related law of the right of real estate usufruct based on the analyzing framework of law economics and reforms a system of the right of using of land in China.