Study On The Rule Of Eliminating Nuisance Claim

The right to exclude obstruction is a kind of claim for real right,which gives the real right holder the right to maintain his own perfect state of real right.Before the promulgation of the Property Law,the content of excluding obstruction is stipulated in Article 83 of the General Principles of Civil Law,which is related to the neighboring relationship.After the promulgation of the Property Law,Article 35 of the Property Law of our country stipulates separately that if the real right is impaired or may be impaired,the oblige may request the rule of eliminating the impairment or eliminating the danger.Such provisions are more conducive to the protection of the legitimate rights of property owners.In judicial practice,the following issues still need to be further clarified: First,how to identify the impairment? Second,whether there are reasons to exclude obstruction and how to judge? Third,how to limit the scope of the subject of exercising the right to exclude obstruction? Starting from the cases of excluding obstruction in 2018,this paper focuses on the analysis of the issues of excluding obstruction disputes and the right to exclude obstruction.At the same time,combining with judicial practice,this paper combs the difficult problems in judicial judgment,and explores the formation of the rules for excluding the right to request obstruction.In recent years,there have been frequent disputes over the removal of obstruction in China.This type of cases often occur between neighbors or relatives.If not handled properly,it may lead to more disputes.And through sorting out and analyzing the cases,we can find that in judicial practice,some general views have been formed on the right to exclude obstruction of disputes.The first part of this article combs the general situation of the cases of eliminating obstruction disputes in recent years in China,mainly analyses the number,distribution and characteristics of the cases.Firstly,it makes a general grasp of the cases of eliminating obstruction in recent years,and finds that there exist in the judicial practice when dealing with the cases of eliminating obstruction disputes: the basis of the right of claim for eliminating obstruction is not distinguished and elaborated;when eliminating obstruction When other cases are related and the legal relationship is complex,the application of law in some cases is inappropriate;and when the exclusion of obstruction of the exercise of the right of claim and the adjacent relationship arises competing,the court is not clear and clear in the application of law and the elaboration of facts.In order to solve these problems in practice,the second part of the article firstly analyses the constituent elements of the right to exclude obstruction,and then distinguishes it from the adjacent relationship and the right to exclude obstruction in tort liability,mainly from the perspective of the basis of the right to claim.On the basis of the above two problems and judicial practice,the third and fourth parts of this paper focus on the exclusion of the right to request for obstruction and the duty of tolerance of the real right holder.The obstruction in judicial practice is characterized by non-possession,non-fault and realistic sustainability.In judicial practice,the duty of tolerance of real right holders mainly comes from public law,special position relationship,self-promise and self-intervention.Through the analysis of the above problems,this paper sums up the rules of judgment in the judicial practice on the exclusion of cases of obstruction of disputes.