Study On The Petition Right On Removal Of Interference

In China's legal system,abatement of nuisance was first mentioned in the "Property Law" which was issued in 2007.The abatement of nuisance hasn't stipulated in the former “General Principles of the Civil Law”,the later "The Tort Law” or the current “General Principles of the Civil Law ",but the removal of obstacles is stipulated in these laws.Although the removal of obstacles is only one word different from abatement of nuisance in Chinese characters,it has caused a lot of trouble.As a matter of fact,there is no difference between them.Legal concept doesn't mean the more,the better.Different legal concepts with the same function will not only be incongruous within the whole legal system,but also make users feel confused.Therefore,in order to unify the concept of law and reduce unnecessary confusion,we should choose one from the removal of obstacles and abatement of nuisance.We should combine the right of claim for the removal of obstacles with the right of claim for abatement of nuisance and name it the right of claim for abatement of nuisance.The right of claim for abatement of nuisance can be dated back to actio negatoria of Roman law,from which the continental law system inherited and developed into dinglicher anspruch and then expanded as claim of absolute right.The China's“Property Law" uses the continental law system for reference and stipulates the right of claim for abatement of nuisance as dinglicher anspruch,and “The Tort Law” also stipulates it as the claim of torts.Therefore it causes the co-opetition problem of dinglicher anspruch and the claim of torts.The dinglicher anspruch only applies to the protection of real right.Because of its narrow range of protection,it is hard to make use of its protection function,when rights such as personal rights and intellectual property rights are hampered or impaired.Therefore it ought not to be defined as dinglicher anspruch.In order to settle the problem of the narrow range of protection of dinglicher anspruch,the right of claim for abatement of nuisance is expanded as claim of absolute right in the hope of covering the protection of personal rights and other rights.Then the co-opetition of dinglicher anspruch and the claim of torts has been turned into the co-opetition of claim of absolute right and the claim of torts However,the mode of the claim of absolute right is hard to realize the distribution protection of rights.In the perspective of the distribution protection of rights and avoiding damage,it is good to define the right of claim for abatement of nuisance asthe claim of torts,which can be the first choice to take the place of claim of absolute right to achieve the distribution protection of rights.In the background of the knowledge economy,the rights has entered into an era of Big Bang,and a variety of new rights arise,while the people's rights awareness is also increasing.Adopting the protection scheme of claim of absolute right will fall behind the development of society and the claims of people's growing rights protection.Because the absolute right has the qualities of closure and hysteresis,it takes a long time for a new right to be widely recognized as the absolute right.It is difficult for new rights to be included in the absolute category in a timely,quick,and efficient manner.If this kind of new right isn't acknowledged as the absolute right,the protection will not be achieved when the damage occurred.Since personal rights and intellectual property rights are formed and acknowledged as the absolute right,so they can get the protection from claim of absolute right.However,it is difficult for the new coming rights to get the proper protection.Therefore,it should not hold the compensation for damages as the only means of tortious liability but increase the ways of undertaking and set up the open rights protection system so as to provide the timely,quick and efficient relief.The tort law system is built in the core of compensation for damages.Defining the right of claim for abatement of nuisance as the claim of torts will result in being incongruous within internal tort law system.According to the value of law-and-order principles,the distribution protection of rights is superior to the system coordination.When there is a conflict between them,the latter one should be placed after the former one.Although besides compensation for damages,“The Tort Law”also stipulates other rights,the applicable conditions are only built for compensation for damages without any suitable arrangement for the applicable conditions of the right of claim for abatement of nuisance or other non-compensation for damages rights.Therefore,the applicable conditions of the right of claim for abatement of nuisance should be defined clearly.As for the criterion of liability,in order to avoid abatement of nuisance and preventing damages,the right of claim for abatement of nuisance may adopt the principle of no fault liability.However,the applicable range of principle of no fault liability should be stipulated by the law,and China's current "The Tort Law" hasn't stipulated that the principle of no fault liability can be applied to the right of claim for abatement of nuisance.The related clauses ought to be amended and clearly defined that the principle of no fault liability can be applied to the right of claim for abatement of nuisance in formulating the future civil code.Other applicable conditions of the right of claim for abatement of nuisance should include:results elements(a nuisance that continues beyond the limits of tolerance),the behavioral elements(including their own tortious action and quasi-tortious conduct)and the result element of causation.The exercise subject of the right of claim for abatement of nuisance should be the rights-and-interests-owner whose rights and interests are damaged or to be impaired.The exercise effect is to recover the damaged rights-and-interests to be in a good condition.The exercise fee is usually undertaken by the person who causes the nuisance or the person who has the actual ability to control nuisance.