Research On Environmental Protection Adjoint Right

This paper defines the Environmental Protection Adjoint Right , which introduces the definition of the Environmental Protection Adjoint Right, content and characteristics of the basic elements, drawing on the legislative practices of other countries, putting forward sound Reflections on China's the Environmental Protection Adjoint Right. The article can be divided into four parts.Through the presentation of the first part of the Adjoint Right, the environment Right was gradually led to the concept and features of the Environmental Protection Adjoint Right, which is based on the objective of environmental protection requirements place a range of neighboring relations is the relationship between environmental laws, according to the rights and assume the corresponding obligations. Bluntly, what is "environmental pollution is concerned, the right to exercise corporate business people the right to use his own or other people's land management or engage in the development and construction activities, wastewater, waste gas, dust, noise, vibration and other abuse, physical harm neighbors health and property, and if more than the permissible limits of society, constitutes an infringement of citizen's environmental protection adjoint Right. The Environmental Protection Adjoint Right is based on the worsening environmental pollution and environmental damage and people's pursuit of high-level needs of the practical needs of life made legal concept. Compared with the traditional adjoint right, it has significant features. First, the Environmental Protection neighboring right is one of property rights and personal rights of a combination of complex human rights. Second, the Environmental Protection Adjoint Right is a public, private and customary rights of the common adjustments compound. Finally, it refers to the comprehensive right. Being a new type of right, which was based on environmental protection, people deserve the right to request that the rights of people in their daily lives to enjoy the quiet living environment, breathing fresh and clean air, drink clean and safe water and enjoy the genial warmth of the sun, and so the rights to environmental rights claims is the basic content and the pursuit of the goal, the Environmental Protection Adjoint Right is the right kind of environment.The second section describes the status of the domestic environmental protection and problems. China's current law system on the Environmental Protection Adjoint Right, the main provisions of the law in property law and environmental protection, among which these provisions are in the traditional tort theory, it benefits would have to take a more traditional remedies. Looking at these provisions of the following problems: First, the Constitution and environmental legislation is not the right environment,as the Environmental Protection Adjoint Right clearly defined. Second, the environmental legislation ignored the citizens have the basic rights of the adjacent environment. Third, the existing civil law in the protection of the Environmental Protection Adjoint Right is weak. Fourth, China's Environmental Protection Adjoint Right relief against the implementation of the provisions up very difficult. Countries around the world continue to strengthen environmental protection legislation right Today, the Environmental Protection Adjoint Right theory and practice of legislation by governments and experts and scholars more and more attention. However, in the study of China's environmental protection Adjoint Right, they were clearly found to exist in China's legislation on the protection of the environment Adjoint Right neglect the urgent need to resolve this situation.The third part of the legislation on foreign environmental Adjoint Right were studied. Focuse on the amount of material in Germany is not against the system, France's neighbors prejudice to the system, Japanese environmental damage relief system as well as Prejudice the system of the United States.Germany's not the amount of material against the system, or "the amount of material is not against the law." In accordance with the current German law system, which is not the amount of material against the system includes three levels: first, because to obtain permission from operating activities can not be born to the amount of material against the system; second, based on general living activities can not be born to the amount of material against the system; third, without permission and engaged in business activities can not be born to the amount of material against the system. Among them, the first system of the Department of Public Law applicable to the German Federal Air Pollution Prevention Act (the predecessor shall be business law) adjustment; the Department of private law, the latter two systems, the application of German Civil Code section 906 requirements. The German Civil Code is not on the amount of material contained in the range against the constantly expanding, from "a body" non-material violations of the amount of the progressive development of the "invisible" in the amount of material non-infringement. Social roots of this change lies in the progress of human science and technology and construction technology, rapid development and the consequent survival of the human environment and their rights against illegal infringement concerns.France's neighbors prejudice to each other adjacent land ownership or use that occurred between the injury status of a special significance, damage the "abnormal" or "transitional" is the court held that prejudice to the responsibility of neighbors formed the only substantive element. Infringement damages, which including civil compensation, executive compensation and criminal sanctions in damages. In the civil compensation in damages in addition to the scope of moral rights, property rights suffer, but also including issues such as deprivation of amenities such as mental damage. The French law against the exclusion of the specific ways according to the neighbors to prejudice the judge issued the perpetrators to improve the command and prohibition order.Japan's environmental damage relief systems after unceasing development, formed the real right to request that the power said that the personality power said that the environment power said that the sunshine power spoke of the abuse of authority said and so on. The real right requested that the power said is to the environmental pollution abuse of authority, according to the real right request elimination violation, is in the various countries' environment law common tendency. The personality power said that the position enjoys the elimination violation request power in the environmental damage civil relief according to the personality power. Namely the national enjoys builds all thresholds the health, the cultural life right, even if does not enjoy the land real right, but regarding the threat life's behavior, the national enjoys the violation elimination request power. The sunshine power said that the position sunshine is the common resources which in adjacency relation's neighboring all people or the average person altogether have, should regard it for the civil law on right, when neighboring all people to its violation, request elimination violation theory. The environment power said that the central content includes: Advocated that the environment power is take Japanese constitution 13, 25 as the basis one kind of fundamental human rights; Advocated that the atmosphere, the water, the sunshine, the landscape and so on are the humanity live the indispensable resources, is property which the humanity altogether has, has not obtained part-owner's agreement, but carries on to this environment arranges he monopoly use is illegal. Did not ask that it is killed whether to occur, suffers injury average per person is authorized to stop this pollution behavior the occurrence. The abuse of authority said cannot be violated the principle based on the right, because or the environmental damage has the continuity and the repeatable characteristic, advocated that depends on the abuse of authority law, the request elimination violation. Should say that does not involve the real right or the personality power and so on specific authority, but take has the benefit which the reality should receive protects as the premise. So long as the position has the violation the fact, should become the legal protection object.US's hindrance system divides into the public hindrance and the personal hindrance. The personal hindrance's relief way, may divide into the common law in the damage compensate and the balance law violation removes two kinds. In the common law damage compensate's type, usually includes the following four kinds. In balance law relief method including permanent prohibition rule and intersexus prohibition rule two kinds. Generally speaking, in the American hindrance law, the environment right infringement victim may exercise removes the violation, the part elimination violation, the replaceable compensation and the damage compensate four kind of request power form completely.The fourth section presents the complete the Environmental Protection Adjoint Right in China. Including the identification the Environmental Protection Adjoint Right, as well as improving the legal status of the system construction of China's environmental protection neighboring right. Only the right to environmental protection, it ought to be clear from the the Environmental Protection Adjoint Right is a statutory right to exercise the right to provide for the rights of the reality of protection, legislation on environmental protection the Environmental Protection Adjoint Right how to identify, also affect the effectiveness of protection of the rights. the Environmental Protection Adjoint Right in improving China's environmental protection system architecture, and propose some ideas. First, the environmental litigation relief system, the development of special procedural law, establishment of specialized courts should be improved. Secondly, the introduction of ADR mechanisms, make full use of ADR mechanisms to resolve disputes over the environment has the advantage, improve China's environment ADR mechanisms. Third, well-designed layout of urban construction, the damage from the source to reduce the occurrence of the phenomenon of environmental Adjoint Right, which effectively safeguard the interests of environmental protection Adjoint Right. The purpose of writing this article concluded, noting that the Environmental Protection Adjoint Right for the protection of the rights of people's personal interests, and building a harmonious society are of great significance.