Study On The System Of Immission In China

Immission is the action of nuisance or damage causing from invaded adjacent real estate by smoke,heat,odor,noise,vibration waves,light,radioactive substances and other imponderable substances.Germany classifies it as adjacent relation.France,Britain and United States classifies it as tort.However,these countries gradually form a immission system which takes tolerance obligation as the core and takes the cessation of infringement,compensation for damage and pecuniary compensation as the main remedies.The Property Law of China establishes the immission system in article 90.However,there are various problems about this system in legislation and practice,including the confusion with environmental pollution infringement,the lacking of trial standards of tolerance obligation and the limitation of method and range of its remedy.The theoretical core of the immission system is the measurement of interests,including the measurement of interests among the private persons and the measurement of interests between the public and private sections.The measurement would achieved by the technology of tolerance obligation.The legal nature of immission should be analyzed from two levels.If the invasion is within the tolerance limitation,it should be adjusted into the adjacent relation.If the invasion exceeds the limitation,the adjacent relation is obstructed and it should be adjusted by the tort law.Our country's legislation should take the relationship between immission and environmental pollution behavior as "two track model".The constitutive elements of the immission liability include the consequence of invasion,the violation of the law(which means the invasion exceeds the tolerance limitation)and the existence of causality.Above all,the core of the elements is the judgement of tolerance limitation.The range of the invaded interests should include property,physical and mental interests.The judgement of tolerance limitation could comprehensively consider the elements of damage degree,place flexibility,social value,prior residence relationship and others.The victim of immission should prove the causality between the act and invasion consequence,while the nuisance of the right to peaceful life can be inferred from experience of the daily life.In addition,if the victim want to exercise the claim right of damage compensation,it is necessary for him to prove that the actor has the fault.The remedies of immission in our country include the claim right of the abatement of the nuisance and the claim right of damage compensation.The people who can exercise these rights include:the owner of the real estate,the owner of easements and profit in the land,the tenant and the owner's family members.On the basis of the existing legislation,our country should learn from the experience of the foreign law and add the claim right of pecuniary compensation.The range of the pecuniary compensation should include property,physical and mental damages.The amount should be determined by the court.To completing the system of immission,the article 90 of the Property Law of China should be revised in legislation,including narrowing the scope of application,deleting the "national regulation",adding tolerance obligation and increasing the claim right of pecuniary compensation.In practice,the court should distinguish the difference between the immission and environmental pollution infringement,judge the tolerance limitation considering the distinction of different cases,and add the physical interests as the basis of claim right.