墓地上权利之重构

Restructure of the Rights over Cemetery

私人墓地占用大量耕地,公益性公墓和经营性公墓二元体制关系不洽,墓地上权利体系不完善,实践中墓地纠纷频发,这都表明我国在墓地法律规制上存在严重问题。基于对"死者安息之所"与"生者祭奠之处"这种墓地属性的认知,全面重构墓地上权利体系显得尤为必要。在理性对待清代墓地制度、罗马法、德国法、英国法、美国法以及韩国法上关于墓地的法律规制及对墓地上权利性质争论的基础上,立足于我国现阶段土地法制框架,确立墓地上的三元权利结构,国家或集体土地所有权隐而不彰,墓园经营者土地使用权在墓地使用目的范围内永续存在,墓地购买者获得物权性墓地使用权。这种基本框架的完善有助于墓地功能的实现,也有助于在基本结构明晰的基础上建构细致的权利体系。

Private graves occupy a large sum of farmland. The dual system of public cemetery and for-profit cemetery shows an unfavorable internal consistency. The right system of cemetery remains imperfect and relevant disputes come up frequently in practice. All these facts indicate that some serious problems persist in the legal regulation of cemetery. Given the recognition that cemetery is by nature valued as the place for decedents to rest and for livings to sacrifice, a restructure of the right system of cemetery appears to be of essence. In regard to the abundant academic discussions and empirical researches concerning cemetery regulation in Qing dynasty, ancient Rome, Germany, Britain, the United States and South Korea, their methods of legal regulation and the nature of rights of cemetery deserve to have a refer- ence. Based on the legal framework of land at present stage, we should establish a three-dimension right system： the land-ownership towards state owned land or collective-owned land remains under cover the land use right owned by business operators is sustainable within the purpose of cemetery use and a property right to use the cemetery is obtained by the purchas- er of graves. The perfection of the basic framework contributes to the realization of the ceme- tery function and the establishment of a more detailed right system.