Study On The Basic Problems Of Building Adjacent Relationship

Although "Chinese General Rule of Civil Law" and "The proposedsuggestion about implementing 'Chinese General Rule of Civil Law'" bothregulate building adjacent relationship,the system of building adjacentrelationship in legislation is far from perfection.Chinese scholars in civil lawpay little attention to the characteristics and issues about such kind ofadjacent relationship,and settlement of such dispute also differ in thousandways in trial practice.Ihave been judge for several years,and have alwaysbeen puzzled by the fact that our existing system of building adjacentrelationship doesn't adapt to the practical demand by socialdevelopment.Having read a great amount of data,given research on varioustheories put forwards by scholars in china,referred to theories in foreigncountries such as Germany,France and Japan,combined with my severalyears' trial practice and study,the paper mainly analyzes the concept ofbuilding adjacent relationship,its categories,its legal regulations,itsproblems in the legislations and perfection.I expect that it can be helpful tothe theoretical system's perfection and trial practice in handling suchdisputes.The paper is divided into five parts:In the first part, the thesis analyzes and discusses the definition ofbuilding adjacent relationship. Through elaborating the emergencebackground and summarizing the definitions between the scholars, buildingadjacent relationship is defined to: the law directly regulates the relationshipof rights and obligations in order to mediate the contradiction when thedominator of the owner or user for one party and the repulsion of the owneror user for the other party contradicts mutually. Building adjacentrelationship emerges between the owners or users of adjacent buildings,theowners or users of one building and the owners and users of adjacent lands orthe owners or users of adjacent building units.The thesis analyzes this concept from the following three aspects:(I). Thelegal nexus composition of building adjacent relationship. Firstly, from theangles of the obligee and obligor, the thesis indicates that all the legal usersof estates are the subjects of the right while all the factual tenants inpossession of estates are subjects of the obligation whether he possesseslegally or not. Secondly, through comparing different viewpoints on theobject of building adjacent relationship insisted by scholars in China, thethesis indicates that the object of building adjacent relationship is property orother interests relating neighbors resulted from using estates between subjects.Finally, the contents for basic right and obligation of building adjacentrelationship includes two aspects which are the limits of specific use ofestates and the limits of specific behaviors acted by the owners and users ofadjacent estates.(II).The characteristics of building adjacent relationship.Firstly, it has all the characteristics of traditional adjacent relationship. It isstatutory, but the law permits the party to amend and supply this system bycontracts. It is subordinative, but it is relatively independent. It is a kind ofprivate law rights, but it has obvious characteristics of public law. Secondly,besides the common characteristics, building adjacent relationship has itsown features. The property factors and personality factors coexist, but thepersonality factors are more and more and it affects building adjacentrelationship more and more deeply.(III).The space range of adjacentrelationship. The space range includes the radiant area and space of estatesused by neighbors which are affected by the owners and users when they usestheir own estates. The estate above is not necessarily interfacing.The second part is analysis and induction of classification of buildingadjacent relationship (I).The basic classification of building adjacentrelationship.Through analysis of three representative opinions on theclassifications,the paper holds that they are too abstract and thus to make acomprehensive classification is necessary . (II).To make specificclassification of building adjacent relationship.It includes:building adjacentrelationship caused by building or rebuilding;building adjacent relationshipcaused by environment torts;building adjacent relationship caused byinherent danger of real estate or its use by dangerous ways;building adjacentrelationship caused by improper enforcement of right or disposition of realestate or its components.(III).Classification of three kinds of buildingadjacent relationship,namely infringement on unmeasured materials,harming daylight and building with condominium ownership.The third part is about legal regulation of building adjacentrelationship.(I).The criterion of judging building adjacent relationshipendangering.Two factors are mainly considered:First is whether the act islegal or legitimate;the second is whether it goes beyond necessary limittolerable.Besides,construction sequence of adjacent building,administrativelicense and feeling of victim also affect obligation judgment.(II).Theprotection method chose by victim.The protection method mainly includes:private protection;civil sue;participation in administration procedure;pleafor administration intervention;apply for administration reconsider orsue.(III).The method to bear responsibility caused by torts.It mainlyincludes compensation for loss , abandoning infrigement , eliminatinghamper,restoring reputation and so on.Such method is mostly associatedwith property directly or indirectly.In the forth part, the thesis analyzes the problems existing in thelegislation of building adjacent relationship in China from the angles ofjudgement practice. These problems includes: the regulations on buildingadjacent relationship in Civil Law are two simple, the protection for buildingadjacent relationship by public law is obviously deficient, there are noprovisions aiming at eliminating the contradicts between the regulations onadjacent relationship in public law and the regulations on adjacentrelationship in private law.The fifth part discusses on the perfection of building adjacentrelationship in China legislation and puts forward severalsuggestions.(I).Building adjacent relationship should be perfected in jusrerum so as to strengthen its operability.Firstly,it should be distinguishedfrom land adjacent relationship and its system should beperfected.Secondly,those specific institutions which have been fullydiscussed and thus be mature should be explicitly provided.Thirdly,therestriction regulation related with adjacent ownership in jus rerum should bemade clear.Finally, the fundamental principles to guide practice in settlingdispute caused by adjacent building.(II).Perfecting adjacent ownershipsystem in public law.Firstly is to creative examination and approvalprocedure for act with possibility of affecting neighbors' interests byadministration legislation,so as to provide beforehand relief for adjacentownership. Secondly is to provide guidance for judging extent of tolerationby specifying the uncertain concepts in building adjacent ownership bypublic law.Finally is to reinforce the relief for those whose interestsinfringed or to be infringed by administration action by legislation.(III).Theconflict between public law and civil law about adjacent ownership can beeliminated by legislation.