On Action Duty Of Right Holders Of Realties In China

In our country,there is no general legislative stipulation on action duty of right holders of realties,but it is scattered in different laws and regulations.Through the analysis of related cases in recent years,we can find that there are three typical problems in China's realty right holder's action duty system.Whether the right holder of a private realty should assume action duty,whether the right holder of a realty should assume action duty on trespassers and the obligation standard of underage entrants,there are many problems and disputes.As to whether the holder of a private realty should bear action duty as the focus of the obligation divergence is the security obligation,opponents believe that the increased obligation will limit the exercise of personal rights of personal realty rights and interpersonal communication,and it is unfair to them.Affirmers believe that the added duty can solve the dilemma that cannot be relied upon when handling private realty violation as an obligation tort.In fact,the security obligations of the right holder of a private realty are in line with the theory of risk control and the theory of trust relationships,and are conducive to human rights protection and fairness and justice,and at the same time can solve related judicial dilemmas.However,based on the balance of interests,the performance of security obligations of private realty rights holders can be restricted to lawful entrants and minors.The standard of Article 37 of the Tort Law applies to avoid the demand for private realty rights holders.Regarding whether the realty rights holder assumes action duty to the trespassers,the affirmer believes that the identity of the intruder should not be the exemption of the realty rights holder,and the opponents believe that the intruder's invasion is illegal and therefore should not be protected by law.Based on the diversity of the trespassers ' identity,constructing the principle of identity differentiation can well resolve differences and maintain fairness and justice.However,the principle of identity distinction at common law is difficult to apply and does not meet the current changes in judicial practice,nor does it meet China's national conditions.The identity of entrants can be divided into legal entrants,good faith intruders,and malicious intruders,and regular intruders,known intruders,and casual entrants are classified as good intruders,and realty rights holders are required to treat legal and good intruders.The person shall bear the uniform act obligation stipulated in the laws and regulations of our country,and shall bear the minimum act obligation to the malicious intruder,that is,the malicious intruder shall not be violated intentionally or by gross negligence.In addition,Anglo-American law system fire rules were introduced.Based on the particularity and legislative requirements of juvenile entrants,real ty rights holders in a special position should assume special obligations for juvenile entrants in order to better protect juvenile entrants.Specifically,underage intruders should assume the same obligations as legal entrants,and individual juvenile entrants should assume a higher standard of action duty.Of course,in order to protect the interests of realty rights holders,the specialization of obligations for minor entrants should be limited to age.Based on China's relevant laws and judicial practices,the age limit can be defined as a minor under 14 years of age,only minor intruders under 14 years of age shall be obligated to act as legally entered minors.