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Titel: The Dawn of Modern Property - Legal institutions of the land’s airspace/subsurface in urban areas of Germany, the US, and China
Sonstige Titel: Die Morgendämmerung des modernen Eigentums - Rechtsinstitutionen des Luftraums/Erdreich in städtischen Gebieten Deutschlands, der USA und Chinas
Sprache: Englisch
Autor*in: Du, Ruyi
Schlagwörter: China; USA; Deutschland; China; the US; Germany
GND-Schlagwörter: Grundstücksrecht; Luftraum; Boden; Stadt; Moderne
Erscheinungsdatum: 2020
Tag der mündlichen Prüfung: 2019-06-26
Zusammenfassung: 
Abstract:
As the land price in the urban area is growing higher and higher, using the airspace/subsurface as a kind of real estate is commonplace in many parts of the world. This dissertation tries to clarify the legal institutions of the airspace/subsurface of a land plot in urban society from a comparative perspective, especially that in property law among Germany, the US and China. It tries to prove there is a need for a real estate law with vertical concerns. Accordingly, an “update” of the traditional property law from the side of airspace/subsurface has become a trend, and its central task is to harmonize the general property rights on airspace/subsurface with the traditional civil code.
Two (key) conditions: From the historical perspective, taking the airspace/subsurface as a kind of real estate parallel to the land surface, at least two conditions should be satisfied. The first condition is, an idea of land with limited vertical stretches (Condition I), and the second is, the recognition of subsurface and airspace as kind of property parallel with its surface ownership (Condition II). However, in ancient Roman, the European Continent, Britain, the early US and China, either condition I or condition II was satisfied, but not both. Therefore, airspace/subsurface right is a modern and urban phenomenon, which appeared under the stimulation of industrial revolution, especially the aviation industry and mining industry (Chapter 1).
Three-layer Structure: The airspace/subsurface right mainly existed in three layers, the first layer is the general legal order on airspace and subsurface, in which all the relevant public and private laws get together to draw a picture of airspace/subsurface usage, and every law is solely or combined responsible for some height or depth. E.g. the aviation law, the mining law, the infrastructure law, the building law, the planning law, the transportation law, the real estate law. In this part, the three countries are quite similar to each other, nevertheless, their approaches are quite different. Germany relied on Sec. 905 of the German Civil Code (BGB) and various public laws. The US relied upon minimum safety altitude and the Causby case to build up a surface landowner-oriented airspace market. China relied more on technical rules and international standard, the state landownership had obstructed the commercialization of airspace/subsurface (Chapter 2.2). The second layer is the general property rights on airspace and subsurface (GPRAS). As illustrated above, this layer is within the property law and is related to all the routines of a typical property right. E.g. the rules of ownership, register, transfer, mortgage, etc. Due to the strictness of the object of property, Germany has no GPRAS. Nevertheless, many endeavors were made in the creative usage of public laws and Art. 14 of German Basic Law. The US is the first to recommend GPRAS. The surface landowner occupies the largest portion and is also the seller of airspace/subsurface, which would be independent of the land surface after the transfer. Following the Japanese style, China Partly recommends GPRAS by theories and judgments, and partly recommends vertical land usage right for construction in section 136 of property law. The GPRAS is to some extent irreplaceable (Chapter 2.3). The above two layers are the airspace/subsurface right in general (Chapter 2), while the third layer is airspace and subsurface law in different branches. Besides these public law branches, the vertical superficies and the condominium are regarded as two typical private branches of airspace/subsurface law in the US, Japan, “Taiwan district” and mainland China. However, the German heritable building right (Erbbaurecht) has little consideration in airspace/subsurface, therefore, the author selected condominium as common representative branches (details in Chapter 4).
Case studies in two representative branches: Firstly, the boundary setting between the landowners and aircraft operators is a common problem globally. The boundary between aviation and surface owners related not only to the general property right on airspace/subsurface in the second layer, but also the general vertical legal order in the first layer. For the boundary setting and the height limitation, the US had used the airspace ownership and the taking law. China had used the jurisprudence of the law of torts, while in Germany most of such disputes were tried as the environmental cases by German administrative courts. Currently, the legal effects in the three countries are similar, but the hardship to win the case is dramatically different. Facing the challenges by the drones, the advantage of GPRAS appears. It is because the drones have little noise, little air pollution, or harm on birds/environment, therefore the environmental claims have no more place in drone disputes, even the tort claims would have difficulties in proving the “scope of private sphere”. Therefore, the GPRAS is helpful in clarifying the boundary (Chapter 3).
The second selected field is condominium law. Form a comparative perspective, the condominium is airspace/subsurface law in nature. For the usage of the exterior wall, Germany is community-oriented, the US is court-oriented, and China is individual-oriented, in which the element of management should be emphasized. In the cases in the allocation of the underground parking lot, the self-containment of parking space becomes a hardship for German lawyers, which was finally solved by amendment. The Chinese dilemma is the ambiguity of the condominium declaration. Both the German situation and the Chinese situation had revealed the importance of the GPRAS, which would surely be a good supplement when there are loopholes in branches. (Chapter 4)
Conclusion: The first conclusion of this dissertation is to understand the airspace and subsurface in a systematic way, and treating the related cases through a synthetic perspective. Secondly, the main task of “real estate law very vertical concerns” is to recommend GPRAS, with which the vertical legal order, the loopholes in different branches, the new green economy and the drones, the potential market value of airspace/subsurface could be accomplished. It represents at least a trend, similar to the modernization of the law of obligations in recent decades in Europe. Thirdly, the airspace/subsurface law is important in the future green economy.
As China is making the new “Chinese Civil Code”, this study had also made some suggestions for China, firstly, China should broaden the scope of airspace/subsurface law. Secondly, China should recommend the general property rights on airspace/subsurface law. Thirdly, China should respect the reasonable co-operation between public and private law, a sole property law approach is not enough to solve the modern problems in airspace/subsurface. Fourthly, relevant legislation should also leave some room for the new branches of airspace/subsurface law (the third layer). E.g. drone driving, the green economy. All in all, China should grasp the opportunity to codify airspace/subsurface right with other modern new phenomena (virtual property, information, etc.) into the new Chinese Civil Code.
URL: https://ediss.sub.uni-hamburg.de/handle/ediss/8365
URN: urn:nbn:de:gbv:18-103451
Dokumenttyp: Dissertation
Betreuer*in: Julius, Hinrich (Prof. Dr.)
Enthalten in den Sammlungen:Elektronische Dissertationen und Habilitationen

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