Research On Disputes Of Discharging Harmful Substances Among Neighbors

Article 90 of the Property Law is set up to solve the disputes that the neighbors discharged harmful substances.However,the judicial practice just deviated from the legislative purpose of article 90.This dissertation will study the rule from the perspective of theory and practice which is used of handling the adjacency disputes about discharging harmful substances,analyze the application of article 90 of the Property Law,and then construct a reasonable and feasible standard.It is of great significance to solve the practical problems as well as constructing a complete theory.The paper has about 35,000 words and is divided into five parts.The first part mainly investigates the judicial practice of the application of article90 of the Property Law.After analyzing the statistics and typical cases relating to article 90 of the Property Law,the dissertation finds that there are some problems in the legal application of article 90 of the Property Law--it is difficult to distinguish the disputes' nature and puzzled to allocate the burden of proof.And,the courts applied different provisions in similar cases.The second part mainly analyzes the reason why it is hard to apply the article 90 of the Property Law.Although this provision has transplanted from foreign legislation,there are obvious shortcomings.As a result of the incompleteness of transplantation,article 90 of the Property Law overlaps with the environmental public laws and article65 of Tort Law in the scope of adjustment which leaves no room for applying article90 of Property Law alone.Then,the legal constitutive requirements are too vague to clarify the certainty of subject and behavior.Because article 90 of the Property Law does not provide a specific legal consequence,the content of claim is always a controversy in the theory and practice resulting a chaotic situation about the application of laws in this kind of case.The third part mainly discusses the value of article 90 of the Property Law.Article 90 of the Property Law should be characterized as a mandatory property norm,and its nature is the rule of the adjacent relationship.In the disputes of discharging harmful substances among neighbors,the key is not the emission of harmful substances but the adjacent relationship.Therefore it is more theoretical and reasonable to apply article 90 of the Property Law in these cases compared to the others.It is helpful to reasonably understand the relationship among environmental public laws,Tort Law and the article 90 of the Property Law under the premise of distinguishing the rule's concrete objects from environmental public laws and constructing a stratified relief measure between article 90 of the Property Law and Tort Law.The fourth part mainly finds the methods to perfect article 90 of the Property Law.Increasing the sensibility of article 90 of the Property Law requires dealing with the problems of the provision itself.The dissertation argues that the proprietor,usuary and possessor on real estate should be ruled by this article.Since the essence of judgment is obligation of tolerance,the article 90 of the Property Law should have a criterion of normal tolerance which is determined from facts and value.Then,article90 of the Property Law shall take removal of obstacles and compensation as legal consequences.The fifth part is the conclusion.