Researches On The Rules Of Adjacent Violation Of Imponderable Material

With the development and booming of modern industrial civilization, the violation of imponderable material has a wide effect on people’s production and living environment. The real estate of the neighboring for being adjacent, affected by unmeasured damage institution directly and seriously. The rules of violations are the important content of extraterritorial legal system country in neighboring relationship. Based on China’s "property law" the ninetieth works in judicial practice, the author takes the perspective of tolerance obligation, analyzed how to improve the deficiency of adjacent violation rules existing in unmeasured damage institution.The article is divided into five parts.The first part, put forward the problem. Analyze the unmeasured damage institution as the new rule by the change of "general principles of the civil law" to the cause of the "property law".Point out that the ninetieth of "property law" in the judicial practice about the existing problems in referee basis, adjustment object, etc.The second part, considering the unmeasured damage institution, point out that the root cause of the problem exists in the judicial practice lies in failing to achieve the unity of purpose and specification means. The rules of unmeasured damage institution is through the tolerance, compromise, and mutual assistance, to reconcile and dissolve the adjacent property rights conflicts in the process of exercise, and the current rules in order to "violation of state regulations" as the behavior factor "the provisions of the state" as a hard and fast rules, did not reflect the requirements of tolerance, compromise, and so cannot be created for right boundary elastic space to reconcile, ease the conflict.The third part, introduce the theory of tolerance obligation,intend to show the reason that the tolerance have as the rule base of the adjacent relationship. Point out that the logical foundation of tolerance obligation is the necessity of rights conflict and the necessity of the right to limit; It’s value basis lies in the fact of absolute property rights changed to relative rights. The ethical basis lies in the fact that realize properly placed and social solidarityThe fourth part, restructure the rules of adjoining unmeasured damage institution, which is the main part of the article. It begins from drawing lessons from other country’s regulations and establishing the goal of realize the specification purposes. Secondly, as for how to determine the extent of tolerance in unmeasured damage institution, point out that the origins of tolerance obligation is that the neighbors should stand some violations that he shouldn’t bear originally for specific reasons, and the tolerance extent is exists in the specific reasons. The numerical requirement of emission standard can’t be the limit of the tolerance obligation. The emission standard is the reference to determining the limit of tolerance obligation. Besides, the article point out that the legal rules are hard to give a clear objective measure of the tolerance obligation. And what the rule of law can do is to determine the consider factors of clear stipulation, namely for the emissions above standard, based on which specific reasons by the infringer shall be tolerated. Through to the outside reference, the consider factors is mainly local customs of using property and the location and reasonable use of real estate. Therefore, the new rule should include three levels, namely the general regulations of the right to prohibit the violation of excessive emission, and the emission which is in accordance with administrative regulations or emission standard should not be prohibited, and tolerant the excessive emission which is in line with local common usage or for the reasonable need of the real estate.The fifth part, as the conclusion, put forward detailed suggestion on the rules.