On Foudation And Amelioration Of Environmental Adjacent Right System In China

With the fast development of industrialization and urbanization, deterioration of pollution and destruction of environment, adjacent relation becomes complex day by day. The traditional adjacent right system does not completely reach the requirement of social life. As the sub-right of adjacent right in immovable estate, environmental adjacent right is accepted by modern society.With expansion of adjusting scope, magnification of content, multiplication of benefit, environmental adjacent right is the development of traditional civil law theory. Thanks to the different social background, economic structure and legal tradition, different countries deal with the environmental adjacent dispute in various ways, such as, tort law in the Anglo-American Law system, the immission violation system and tort law in the Continental Law system. Although the different processing method, the protection of environmental rights and interests is emphasized in the process of settling the environmental adjacent dispute. Many countries construct the system of environmental adjacent right by the prejudication. Comparing with other countries, the adjacent right system develops slowly in China. The enforcement of The Property law symbolizes the significant improvement in construction of environmental adjacent right, but the law system has not been established and consummated.In addition to preface, the thesis consists of four parts. Part one explains the basic theory of adjacent right, analyzing the deficiency of recent adjacent right system, point out the purport of environmental adjacent right system. Part two explains the theory of environmental adjacent right. The characteristic of environmental adjacent right include broadening of extension, extending of content, ecological object, dualism of value, complexity of right. The content of right includes living convenience with house, high quality of environment getting rid of immission violation, right of mental peace. The origin of environmental adjacent right theory mainly is from forbiddance of right abusing. Theory of profit comparing and theory of taking a risk by oneself are complementarities. Part three is comparative analysis of foreign system, such as France, Germany, Japan, UK, and USA. The common ground of characteristic of each country is key function of prejudication in both positive law system and case law system, the cooperative effort by public law and private law.The last part is the design and construct of environmental adjacent right system in china with principle, circumscription of system, and some details of system.. The principle is profit comparing, precedence of efficiency, regarding civil custom. It would be better to chose the traditional legislation pattern, and strengthen the function of judicial interpretation. This part makes the definition of environmental adjacent right with extension, criterion of exceeding, and object of infringement in order to make a distinction with other. On the detail of system, giving the environmental adjacent right of estate owner by law first, and then establishing the relieving system, increasing the mean of relieving, such as founding the public relieving system as supplement.