Study On The Claim To Eliminate Obstruction In Rem

The claim to eliminate obstruction in rem is stipulated in Property Law Article35,while the constitutive requirements and legal effects are not explicit,which cause a lot of practical problems,such as the damage and obstruction difficult to distinguish,the border of the claimant duty of tolerance not clear,the liable person difficult to identify and how to bear the cost of the process of eliminating obstruction.We should pay attention to the characteristics of obstruction during the application of the claim to eliminate obstruction in rem,clear and definite the scope of the claimant's meaning force.Under the circumstance of the claimant with duty of tolerance,the clamant has to endure such a nuisance due to obstruction with no illegality.When both behavior liable person and state liable person exist,the claimant can pick either of them to eliminate obstruction.The cost during the process of eliminating obstruction is burdened by the liable person in principle.Special circumstances can be shared by the claimant and the liable person.In the future Property Law revision,the path choice of the claim to eliminate obstruction can take the German Law model.The paper mainly adopt historical research method,comparative analysis method and normative analysis method.The paper is divided into five chapters.Chapter ?: The research background and significance,research status,research methods and innovation of this paper are defined.Chapter ?: By analyzing the content and nature of the claim to eliminate obstruction in rem,it focuses on proving the reasonableness of this petition right.Chapter ? and Chapter IV: The purpose of this part is to undertake the analysis of the elements of the claim to eliminate obstruction in order to solve the key problem-who have what legal claims to whom.Chapter ?: The purpose of this part is to undertake the analysis of the legal consequences of the claim to eliminate obstruction.From the perspectives of the duty of liable person to eliminate obstruction and how to bear the cost of the process of eliminating obstruction,it offers a solution to the nowadays problems.