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近年来,关于墓地使用权的权益纠纷处于不断增长的趋势。究其本质原因,是对墓地使用权的权属我国相关法律规定空白,学界对于墓地使用权的法律保护研究亦显不足。对于墓地使用权的问题,学说法律规定存在两种观点:一种债权说,另一种是物权。债权说虽然有利于土地使用期限的缩短,但在租赁合同续租和继承、征收补偿等方面实施效果有较大的缺陷,因此债权说对墓地不够成有效的保护。确立物权化墓地使用权,有利于稳定墓地使用关系,弥补现有法律规定的空白。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。
In recent years, disputes over the rights and interests of the right to use graveyards have been on the rise. The essential reason is that the ownership of the cemetery right is a blank in the relevant laws of our country, and the academic research on the legal protection of the right to use the cemetery is also inadequate. As to the granting of the right to use the cemetery, there are two kinds of viewpoints in the legal provisions of the doctrine: one kind of claims and the other is real rights. Although the creditor’s rights claim is beneficial to the shortening of the land use term, it has a big flaw in implementing the leasing and inheriting of the lease contract and expropriating compensation. Therefore, the claim is not enough to effectively protect the cemetery. The establishment of the right to use the right to graveyard, is conducive to stabilizing the use of the cemetery to make up for gaps in existing laws. The state should promulgate as soon as possible the implementation of the Funeral and Mortification Law stipulating that the use of the cemetery is the relationship of real rights and that proper restrictions should be placed on the right to use the cemetery.