论管道地下通过权——一个基于解释论的分析

On the right to construct pipelines through underground land——An analysis based on interpretation of the law

在目前我国法律没有明文规定的情况下,从法律解释学的角度分析,所谓管道地下通过权,是指油气长输管道建设单位与土地所有权人和使用权人按照合同约定,以从地下通过其土地、限制埋管地上一定范围内土地的用途并给予相应的补偿为内容的地役权。它在法律性质上属于一种地役权,而非建设用地使用权或者相邻关系。在损害赔偿方面,它主要包括两部分:一是向土地所有权人和土地使用权人支付的土地补偿费;二是损害赔偿金,主要包括因保养、检修管道造成的地上附着物损害赔偿金以及因管道油气泄漏造成损害而支付的损害赔偿金。

As China is currently without any explicit legal provisions, the right of pipeline through underground land can be analyzed by interpretation of the Law as being a type of easement contracted by those constructing long-distance oil pipelines with land owners and holders of land usage rights. The easement mainly consists of the right to construct pipelines underground through the land and limited use of land above the pipeline, for which appropriate compensation shall be made. Its legal nature is a type of easement, rather than construction land use right, and the two parties are not considered to be adjoining landowners. As for compensation for damages, it consists of two parts: firstly, the land compensation fee, which is given to the landowners and the holders of the land use rights; secondly, damages, which mainly consist of damages for any above ground fixtures damaged as a result of maintaining, examining or repairing the pipeline, and damages for damage caused by oil or gas leaks.