A Research On The Judging Standard For Immission

Immission refers to the damage caused by the invasion of gas, odor and other unmeasurable substance from adjacent land. The first immission system of our country began with "Property Law" Article 90 promulgated in 2007. Since the law established late, the provision has obvious limitations on the system design and the concrete content of the legislation:no precise criteria is given on the range of immission, the limits of the tolerance obligation of the party which suffers from the infringement, and the circumstances under which form immission, etc.; the lack of maneuverability; as well as unable to be adequate practice guidance. This article intents to find out the insufficiencies of immission System and to provoke some thinking for the improvement of it in our country by learning relevant provisions from Germany, France, Japan, Britain, and the United States using the comparative study method investigating the criteria of immission establishment in these countries.This article is divided into five parts. The first four parts introduce the provisions of the immission criteria in the major civil law and common law countries, studying the criteria under which immission be established in Germany, France, Japan, Britain, the United States. Different country has different legislation traditions and rationale, so methods of solving immission problems are not the same from country to country:Germany established a separate system called "immission system", on the basis of neighboring rights for regulation; the French Civil Code does not make direct provision for immission, but regulated in servitude using a "neighbor nuisance system " developed through the legal precedent and the doctrine, claiming excessive damage caused by neighbor invasion to be the only substantive requirement for judging the easement of immission; Japanese civil law did not make provisions for immission either. Instead, "sunshine nuisance theory" and "tolerance limits" theory are taken as criteria for judging immission establishment, and the theories were formed through the development of legal precedent theory to regulate new type of neighbor relation issues. Britain and America use private invasion systems to stipulate immission problems. Invasion is an independent form of tort. Anglo-American invasion system take "comprehensive standard" as the judgement of establishment of immission responsibility, which has a very important significance.The last part elaborates the present situation of immission judgement criteria of our country. The criteria in "Property Law" Article 90 presents a color of Environmentalism which lacks of actual operability. In this part, Analysis of China's immission System deficiencies are also discussed, and recommendations are given to perfect the system in our country on the basis of comparing our criteria to those of foreign countries from their legislation, legal precedent and doctrine.