The Relationship Between The Exclusion Of The Nuisance Claim And The Claim For Damages

The problem studied in this paper is to clarify the relationship between the nuisance claim and the claim for damages.The most important content is to divide the scope of application of these two concepts,and then conduct the research on the relationship between them.According to the summary of results of cases,it can be found that there are two disputes about the identification of nuisance and damage:(1)the results of the violation is a nuisance,or damage;(2)whether the damage should be regarded as nuisance.Behind the controversy is the problem of obscuring the fact that the criteria for identification are vague.On the issue of the facts of nuisance,there are four theories that provide the basis,the source of hindrance theory,the initial source of the hindrance theory,the invaded rights and the reusable theory.(1)The initial source of the hindrance theory and the source of hindrance theory are homologous,and both believe that the object of nuisance constitutes the source of persistent infringement,but the initial nuisance holds that the nuisance is a step forward targeting the behavior or equipment that resulting nuisance.According to this,the result of the violation will not fall into the nuisance and maintain a fairly clear distance from the damage.(2)The reusable theory says that damage can be considered as nuisance.It does not believe that the exclusion of the nuisance claim will arbitrarily claim damages.(3)The invaded righttheory says that the nuisance is defined as one person's right space invaded the others'.The contents of the above-mentioned doctrine cannot convince the author.The author believes that from the essence of nuisance and damage,nuisance is the interference of the legal status of the owner,which is embodied in the influence of ownership power(possession is a nuisance in the broad sense),affecting the dominant will of the right holder;The judgment of property interests is the content of different perspectives.However,under this standard,the problem of occlusion and damage still overlaps,and within the scope of the coincidence,the criterion for judging whether the damage can be evaluated as a nuisance cannot be simply applied.The key point is that the purpose of explicitly excluding nuisance is to restore the full state of ownership.In the case that the object is damaged or lost by the entity,the right which the right of excluding the nuisance based on has changed,and it is impossible to request “restitution”.Therefore,the exclusion of the nuisance claim and the claim for damages is a free-coupling relationship,and the right holder chooses to exercise it.With regard to the relationship between the exclusion of the nuisance claim and the legal effect of the claim for damages,the first issue is the removal of the nuisance.Even in the case of a competing right,the removal of the nuisance will have a legal effect similar to the restitution.There is also a difference between the two.Secondly,the cost burden is not of course a legal effect of exclusion of nuisances claims.Because of the nuisance and force majeure of third parties,it is unreasonable that all costs are borne by the nuisance,which should be regulated in accordance with the liability law.Thirdly,the rule of imposing a nuisance claim should be allowed to apply the damages law.