| Request right of eliminating the interference is a claim of the right, its legal origin is the Roman law.when the right holder of the real right to occupy a method other than compromised,property status of people to a successful recovery thereof, was to protect right.According to common said of the theoretical cycle,there are four main elements of request right of eliminating the interference,mainly element is the claimant’s property rights,behavior element is Other people using methods except occupying to be harmful to facts.The relative behavior is the right to request for people and the right person without prejudice,tolerance obligation.Claim for removal is provided for the protection of property rights,which depends on the matter,no real no claim of real right law,so scholars generally believe that the claim for removal of interference limitation does not apply.Force of law of request right of eliminating the interference mainly reflected that the counterpart undertake obligation of eliminating, but the focus is the fee cost by excluding impair.request right of eliminating and other claims as claims both with common characteristics, but also show their different properties. request right of eliminating and the claim for restitution take possession as the division limit of the standard, so focus is reflected in how to decide whether obligee occupy the property. request right of eliminating and the elimination of claim risk collectively known as the defensive of claims in rem, both of which have similar properties and are placed in China’s "Property Law" Article 35, there is the risk of wrongful obstruction of ownership is to eliminate the danger of the establishment of the right to request substantial elements.request right of eliminating and right of action for the recovery of damages have a clear distinction,request right of eliminating are claims on property law. not to prejudice the person at fault for the element, the system functions for the realization of property rights, protection of property rights, the right to claim damages tort claims or debt law, infringed its wrongdoing to the aggrieved person shall be liable for compensation.Request right of eliminating the interferencea claim of the right, adjacent relation is extention of ownership.both not only have overlap of articles of law but also for better restrict the property rights of property rights. Reflect the oursuit of fair value of law.In comparative law, Anglo-American Legal System and continental legal system set relief of a real right separately.American “private nuisance system” regulate when private interest in land was seized by other people by the non prossessive way, the proverty can find a bill of private nuisance. "German Civil Code" Article 1004 provides for the right to requestremoval of obstacles.Civil Law" enacted in 1986, affected by the legislation technology, law enforcement,social background and many other factors, and does not provide request right of eliminating, but states that eliminate is one obligation of ten obligation relating to civil law.the "Property Law" published in 2007 fill in legal blanks, the law is written in Article 35 under Property Protection, with the development of market economy and reform of the judicial system reflects the spirits of protection of private rights. In addition, the distance"Property Law" promulgated also more than ten years, the supreme law promulgated the"Property Law" judicial interpretation and starting from March 1, 2016 formally implemented,people have request right of eliminating in the change of real right.But so far,there is no component at the legislative level of obstacles., nor whether the provisions of the statute of limitations applicable to the system,caused legal dispute when citing the case clause in practice.In this paper, the United States and Germany on behalf brief similar system to absorb the experience, citing a number of cases, hoping to see the removal of obstacles to China’s tort system provides useful inspiration. |
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