Application Of Law Of Adjacent Pollution Cases In China

Under the traditional legal system,property right is regarded as "absolute power",which embodies the legal philosophy of "the sacred and inviolability of private property"in private law.However,with the needs of social development,jurists and legislators all over the world limited the absolutism of property right based on the need of public interests,so as to prevent abuse of rights.Immission under Germany legal system and Anglo American law system of private nuisance theory are both reflected the socialization of property right,adjacent neighbors have duties to endure any reasonable nuisance from others.The right of abatement of nuisance can be claimed by neighbors only with the exception of the abnormal emission can be prevented and possible application of control facilities.In other words,it is a necessary to limit ones’ ownership or usufructuary right of his property while expanding other party’s interests so as to ensure the harmonious of neighbors.Germany Immission,French adjacent nuisance and private nuisance under Anglo American were referred to the legislation of Property Law of People Republic of China.Compared with Germany Civil Code § 906,Article 90 of Property Law of P.R.C.expands the adjustment range to environmental pollution in a broad sense to regulate increasingly serious environmental pollution.Some scholars thought that Article 90 is adjacent legal nexus reflecting the aim of public law of environmental protection and pollution control under private legal system,which is regarded as environmental protection adjacent legal nexus.However,the adjustment range of chapter Ⅷ "Liability for environmental pollution" under Tort Law of P.R.C is similarly the same as Article 90 of Property Law.Different courts have various understanding of adjacent pollution infringement,so it comes out that "identical lawsuits with distinct judgment".However,institution arrangement between adjacent pollution infringement and environmental pollution liability.Liability for wrong is applied to adjacent pollution infringement,while environmental pollution is strict liability.Also compliance of discharge standard is ground of opposition for adjacent pollution infringement,while environmental pollution is not.There is no norms of cause of actions and legal nexus in judicial trial of adjacent pollution infringement cases,which leads to application of law is contradict to cause of action.Consequently,it impairs the justice and authority of the judiciary.Selecting some adjacent pollution cases of great research value from "China Judgement Online" and studying the cases from the aspect of determination of cause of action,legal nexus,and application of law so as to investigate judgment of adjacent pollution cases in P.R.C.comprehensively and systematically.It finds that there are three influence factors to application of law,which are cause of action,pollution type and behavior nature.Following this clues to find out reasons of chaos of application in legal practice.Coincidence of legal adjustment range,claim of rights and legal regulation make concurrence of claims possible.Meanwhile,lack of norms of the determination of legal nexus is bond to cause chaos of application of law in adjacent pollution infringement cases.Based the difference between dinglicher anspruch and claim of infringement,avoiding chaos of application of law in adjacent pollution infringement cases should pay attention to the adjustment range of Tort Law and Property Law.It should clarify doctrine of liability fixation,rechtswidrigkeit and tolerance duty to realize substantial justice in adjudgement.When interpret article 90 of Property Law,it should be admitted as an clause of independent claim.At the same time,distinguishing different anspruchsgrundlage by classifying pollution.For example,pollution can be classified as fictional pollution or virtual pollution based on different mechanism of pollution;it can also be classified as domesticity pollution or production pollution based on nature of behavior.Therefore,there are four types of pollution,which are applied separately to liability for wrongs,presumption of fault,strict liability or equitable liability.Meanwhile,tolerance duty should be considered as one of the factors of illegality.And liability of compensation or indemnity should be based on the judge of illegality.In other words,it helps us to classify application of law by classifying pollution and right of claim,which grantees judicial justice.