Treatise On The Problems In China's Invasion Of Immeasurable Objects System And Its Improvement

Immission comes from Roman Law. It is one of the key concepts in modern civil law. It means the invasion that comes from gas, fetor, smoke, noise, shaking or materials from other's ground, and also including negativity and mental violation. These invasions are called Immision by a joint name because of their unspecific and harm to the property and personality of others. Immission's properties are just as follows:unspecific, limitation, degression of damage, and its changes on types and strength as the enlargement of technology and industry. So, the academic members call Immission as " Neighboringrelationship", " Infringement ", or " Environment Right " and so on. However, in fact, there are also some different theories about its judgement standard, rescue method and its proof burden.In China, we can also see something about Immission not only in Civil Law, Property Law, and the part of environment tort in Product Liability, but also in Environmental Protection Law, Prevention and Control of Air pollution, which are regarded as the public laws. But there are still so many problems and weaknesses in these rules, for example, devorcing from social life, lacking behind the real need, difficult to applying to and mastering, going against to the disputes settlement and preservation for mankind's right.. By this measure, it is necessary for us to carry on a thorough research on Immission, and establish a legal system which is independent and keep the integrality of contents.In Germany, Immission in Civil Code is based on neighboring rights, and then expands to the negativity and mental violation. It also ruled the duldungspflicht, and thinks its judgement standard is " Intuition possibility ", but not immeasurability. French civil law set up the responsibility of Neighbor Hamper by case law and theory, and in French civil law, interim is an important condition to make sure if the responsibility of harm establish. In Japan, this kind of invasion is called " nuisance " and be ruled in environmental law. Japan is not only developed the theory of tolerance limits, principle of Liability Without Fault and presumption system of effect relationship about the responsibility from the invasion, but also developed healthy theory on the way of rescue method, especially on the injunction. And in fact, as there is no so called real rights in Britain, France and the United States, so the system about the Immission is independent wrong since it is established, which means the individual interests system is no—fault liability.The establishment of Immission in our country, should be combined with our national situation and the legal environment, and started from two ways: theoretical basis and practical application. Theoretical basis includes: the definition of Immission, constitutive requirements, enlargements of kind, applicability and the application of principle. There are two ways to definite Immission—enumeration and summarization. Right now, the injury phenomena of Immission could not be included in simply enumeration completely, so most of time, we use summarizatim. About the constitutive requirements of Immission, we can model on the successful plan used in other countries, regarding " temporary" as the only real element. But in operation, it is necessary to standardize a way on " temporary ", for example, providing a basic principle on duty of tolerance. As the society develops so quickly, so when we establish the system of immission, we are not only standard the specific invasion of immission, but also the abstract invasion of immision and its mental invasion, so that, we can ensure the integrity of this system. Based on China's traditional laws, the applicability of immission also be limited. For example, the first, environment law and administrative law could adjust the invasion of immission from operating activities which permitted by the agencies; the second, as the immission is a kind of private law, its adjustment range should be defined the invasion that from the operating activities and daily activities which needn't to have the administrative licensing. The core content of the immission is duldungspflicht, which means we should regard the Principle of Measuring the Interest and Forbidding Misuse of Rights Rule as the guidelines. Because the Principle of Measuring the Interest aims on adjust the conflict of socioeconomic development and the interest of civic life, and Forbidding Misuse of Rights Rule aims on adjust the conflict that between invasion of immission and every parties. There are two aspects in further perfection of practical application: duldungspflicht and rescue method. Duldungspflicht is the key criteria that to sure if the invasion is true and if the victim could get the relief. This is also the difficulty in practical operation. It is necessary to have a principled instruction to ensure if the victim should tolerate and the degree of the tolerance. In special law, it defined that standardization should be combined with the "discretion" that offered by the judges. It is believed that the model which relief combined with tort law could better protect the interests of parties. Of course, the contents of Property Law should be conclude two aspects at least:claim of compensation and claim of injunction. These two rights can be used in these situations:first, the Principle of Measuring the Interest against the duldungspflicht of the victim:second, the Principle of Measuring the Interest against the special pipeline violations of the victims. The rescue method of immission is true of non-fault responsibilities, constitution elements and the illegality and causation of the actions. In addition, the modern environmental tort asks that the tortfeasors should not only shoulder the responsibility of compensating for damage, but also establish a form of liability which ask for recourse of stopping the performance.