论经营性公墓墓地使用权

On Use Right of Profit-making Cemetery

关于墓地使用权,学说和法律规定存在债权说和用益物权说两种观点。债权说虽然可以缩短土地使用年限,但存在租赁合同续租和继承的困扰,合同续租和承租人优先承租权使得租赁权说的实施效果大打折扣。墓地使用关系物权化,有利于稳定墓地使用关系,使"入土为安"成为现实。国家应尽早颁布实施《殡葬法》,规定墓地使用关系为物权关系,并对墓地使用权进行适当限制。

As for the use right of cemetery, there exist two views： creditors＇ rights and usufructuary rights in academic and legal circles. According to the former view, the employment time of the land can be shortened, but there will be problems as the continuation of contracts and inheritance. The priority of continuation of the contracts and renting the land will make the implementation of rent right fulfilled incompletely. The appliqation of property law to the use of cemetery will be helpful to sta-bilize the use right of it and bring into the reality the wish ＂burying brings peace＂. Accordingly, Interment Law should be is-sued as early as possible, which can regulate the use right of the cemetery as property right and limit it properly.