Several issues that should be paid attention to when rationally protecting cemeteries

(1) Whether the right to use rural cemeteries can be claimed

In our country, land belongs to the state All are indisputable facts, so there is no question of ownership of the cemetery. So, can we claim the right to use rural cemeteries? Property rights refer to the direct control and exclusive rights that property owners have over specific things in accordance with the law. According to this definition, if we claim the right to use rural cemeteries, we can define the right to use rural cemeteries as farmers using their own rights to use rural cemeteries. The legal use of land owned by the state or collective in the name of the state, and the purpose of use is to build tombs. The current status of land use in my country adopts a two-level classification system, first-level and second-level, which is divided into 12 first-level categories and 56 second-level categories. The first-level categories include: cultivated land, garden land, forest land, grassland, commercial land, industrial and mining storage land, residential land, public land management and public service land, special land, transportation land, water areas and water conservancy facilities land , other lands. Cemeteries belong to special land in the first category, and "funeral land" is clearly defined in the second category. The national standard "Land Use Current Classification" divides land into three major categories: agricultural land, unused land and construction land, and cemeteries are classified as construction land. In other words, since it is classified as Class II and is also construction land, the author believes that the right to use rural cemeteries should be claimed.

(2) The issue of transfer of use rights of rural cemeteries

Our country is a public ownership country, and the state has ownership of land. Our country’s property rights law clearly stipulates that the sale of state-owned land and collectively owned land is not allowed. and transfer. At the same time, my country's Land Management Law stipulates that rural collective owners cannot buy or sell land property rights, and can only rent or transfer land use rights for a fee within a certain period of time in accordance with the law; they cannot arbitrarily change the use of their cultivated land, and they must expropriate their own land due to special circumstances. When cultivating land, it must also be approved by the relevant state departments. It can be seen that the right to use land can be transferred according to law. The transferee only has the right to use the land, and the ownership still belongs to the state or collective. Therefore, the right to use the cemetery is transferable. However, based on the traditional Chinese Feng Shui acupoint principles, the ancients believed that after death, the essence of a person is still within the bones and cannot be extinguished even if it is cremated into ashes. If it is buried in a "place of birth" in the natural "dragon cave" of mountains and rivers, its essence can be transformed into a peaceful atmosphere, thus affecting future generations; if it is buried in a place of "death", its essence can be transformed into a spirit of peace and harmony. "Evil", thus detrimental to their descendants. Based on this, the author believes that necessary restrictions should be placed on the transfer of cemetery use rights. This move has two purposes: first, to satisfy the Chinese people's desire to let the dead "sleep" underground, and to try to avoid the digging of graves and infringement of the bones of relatives that may occur due to the transfer of cemetery use rights. Second, it is to avoid the problem of secondary construction of the cemetery. In real life, cemeteries often change owners and are renovated and expanded. Over time, the problem of land damage will inevitably arise. Therefore, the author believes that although the right to use the cemetery can be transferred, necessary restrictions must be implemented.

(3) Adjacent relationship issues of rural cemeteries

Article 84 of the "Property Rights Law" stipulates: Adjacent rights holders of real estate shall be in a manner that is beneficial to production, convenient for life, and solidarity and mutual assistance. , fair and reasonable principles, and correctly handle adjacent relationships. Article 85 stipulates: If laws and regulations have provisions on the handling of adjacent relationships, those provisions shall prevail; if laws and regulations do not provide for them, local customs may be followed, which is what we usually call customary property rights. This is the first time that customs have been included in the standards for dealing with adjacent relationships, which is more in line with the actual laws of life and can be more easily applied when dealing with adjacent relationships in cemeteries.

Article 87 of the "Property Rights Law" stipulates: The real estate right holder shall provide necessary conveniences to adjacent right holders who must use their land for traffic, etc. At the same time, Article 92 of the Property Law clearly stipulates: If a real estate owner uses adjacent real estate for water, drainage, traffic, laying pipelines, etc., he shall try to avoid causing damage to the adjacent real estate owner; if damage is caused, he shall be compensated. compensation. We can invoke these provisions to resolve adjacency issues in rural cemeteries.

If the cemetery is adjacent to other real estate, the principle of adjacent relationship should apply.

(4) The issue of grave easement

In real life, we often face the problem of transferring land use rights. In the process of transferring land use rights, it is inevitable to It involves the issue of cemetery removal. The most common one is when buying and selling land, the land contains the burial plot of the seller's relatives or his surname. According to the "Civil Customs Investigation Report", the common way for the private sector to deal with this situation is for the seller to obtain an easement from the new owner of the land in a certain way, which means that it has the right to use other people's land for the convenience of its own land. Specifically, In other words, the seller can reserve a cemetery or create a cemetery on someone else's land. For example, the "white land and red land" in Yuxiang, Shanxi and "it is a general rule to leave half an acre" in Dingnan, Jiangxi, "allow them to move up and down, left and right". Here, the author quoted Wang Deqing's concept and defined it as a forbidden grave site. Easement.

The author agrees with Wang Deqing's concept. Although the servitude land and the cemetery are not adjacent to each other, one piece of land actually meets the needs of another piece of land, which has proved the objective existence of the easement. In view of China’s special national conditions. Such easement shall be valid. In actual life, according to the relevant provisions of the "Property Rights Law" on easements, to establish an easement, both parties should enter into a written easement contract. The easement is established when the easement contract takes effect, that is, the easement The validity of the easement adopts a free will principle, but without registration of the easement, it is not allowed to confront a bona fide third party. It can be seen that the registration of the easement is not a requirement for the validity of the contract, nor is it a requirement for the validity of the easement, but only a requirement for confrontation of the easement. At the same time, the term of the easement shall be agreed upon by the parties, but shall not exceed the remaining term of usufructuary rights such as land contract management rights and construction land use rights. The author believes that both parties should be encouraged to enter into a contractual agreement on the cemetery easement. For example, when land use rights are transferred, the cemetery is incidentally set through a contract.

(5) Legal protection of rural cemeteries

With the promulgation of the Tort Liability Law, we can invoke more laws and regulations to solve the problem of cemetery protection in rural cemeteries. Infringement issues. Article 2 of the Tort Liability Law stipulates that those who infringe upon civil rights and interests shall bear tort liability in accordance with this law. The civil rights and interests mentioned in this Law include the right to life, health, name, reputation, honor, portrait, privacy, marital autonomy, custody, ownership, usufruct rights, security rights, copyrights, and patent rights. , trademark exclusive rights, discovery rights, equity, inheritance rights and other personal and property rights. At the same time, Article 15 stipulates that the main ways to bear infringement liability include:

(1) Stop the infringement;

(2) Eliminate obstruction;

(3) ) Eliminate the danger;

(4) Return the property;

(5) Restore the original condition;

(6) Compensate for losses;

(7) Apologize;

(8) Eliminate the impact and restore reputation.

The above methods of bearing infringement liability can be applied individually or in combination.

The author believes that as long as the right to use the cemetery, the easement of the cemetery easement, and other rights established on the cemetery are legal, they are all legitimate civil rights and interests under the tort liability law. Inside. All should be protected and adjusted by law. The above methods of assuming tort liability should all be applicable to infringement cases against cemeteries.

At the same time, Article 3 of the Supreme People's Court's "Interpretation on Several Issues Concerning Determination of Compensation for Mental Damage in Civil Torts" stipulates. "After the death of a natural person, if his close relatives suffer mental pain due to the following torts and file a lawsuit with the People's Court for compensation for mental damage, the People's Court shall accept the case in accordance with the law:

(3) Insult, slander, derogation, Defame or violate social public interests and social ethics in other ways, and infringe on the name, portrait, reputation, and honor of the deceased;

(4) Illegal disclosure or use of the privacy of the deceased, or in violation of social ethics *Other ways of interests and social morality infringe upon the remains and remains.

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Article 4 stipulates, “If a specific commemorative object with symbolic personal significance is permanently lost or damaged due to infringement, and the owner of the object files a lawsuit in the People’s Court for compensation for mental damage on the grounds of infringement, The People's Court shall accept the case in accordance with the law. "Based on the above clauses, the author believes that people whose rights to use graveyards or other rights and interests have been infringed can claim compensation for mental damages.

At the same time, Article 121 of the "Property Rights Law" stipulates: " If the usufruct right is extinguished or the exercise of the usufruct right is affected due to the expropriation or expropriation of real estate or movable property, the usufruct right holder shall be entitled to obtain corresponding compensation in accordance with the provisions of Articles 42 and 44 of this Law. "When rural cemeteries are expropriated and requisitioned in accordance with the law, compensation should also be provided in accordance with this article. However, due to the particularity of China's national conditions, the state should try to avoid or reduce the expropriation and requisition of rural cemeteries.

5 Conclusion

The evolution of contradictions often brings about profound social problems. Therefore, the resolution of disputes over Chinese cemeteries is urgent. It is China’s traditional customs and the principles of fairness and justice, as well as the objective needs of Chinese law. . When solving the issue of cemeteries, we should base ourselves on China’s national conditions and should not copy Western models. The protection of rural cemeteries should be based on reality. We should formulate more relevant legal regulations as soon as possible. Construction process