| This paper mainly studies the constituent requirements of removal of interference.And the scope is limited to the nuisances of the real rights.First of all,before clarifying the constituent elements,the problem of conflicts which between the application of removal of interference in the Property Law and relief methods in the Tort Law should be resolved.Based on they both stipulate the removal of interference.Such vague provisions have brought about application problems.According to the characteristics of the Tort Law and the “damage” requirement is stipulated in the fault tort liability in the Civil Code(Draft)now,as well as the general trend of it in comparative law,it is pointed out that both are not based on fault.However,in order to prevent Article 35 of the Property Law from changing into meaningless clause because of concurrence,and leading to impact on the system of the real right claim,it is necessary to limit the scope of application of the Tort Law.That is,the Property Law adjusting the nuisances of the real rights,and the Tort Law adjusting which of other rights and interests.Secondly,in the determination of the nuisances,according to the typical characteristics,it is difficult to draw a line between the nuisances and the damage.Because of the similarities in their legal effects.But the former does not take fault as an element.In order to prevent them from mixing,it is necessary to discuss the boundary between the nuisance and damage.Through analysis of various theories,the author believes that there is no clear boundary.Because the transition zone what we need to find out between them cannot be avoided.Combining the analysis of different types of the nuisances,the author believes that when the nuisance is intangibly positive and negative,the crossover of the nuisance to the damage is less likely to appear.Because the source which cause the nuisance is always outside the property.When it comes to tangibly positive interference,there is inevitably a crossover which is a situation of concurrence.However,the claim for damages needs to prove that the other party is at fault,but can ask to bear more serious damages.In addition to the necessary recovery,such as the loss of use of interests.Where the legal effects overlap,the provisions for damages inevitably become useless.But this is exactly the embodiment of this system.Its scope is relatively narrow,and will not pose a threat to the fault principle and the liability system.At the stage of the determination of the relative person,the author combines different theories and their loopholes,as well as the characteristics are quite similar which of the overall structure of the removal of interference and the damage compensation.Basing on the fact that the nuisance is more or less related to human behavior,it is believed that the theory of responsibility is more systematically harmonious and legitimate.The author refers to the German law 's general theory on illegality judgment,and introduces the second level of attribution,that is,the judgment of the illegality of behavior.If the counterpart does not have any behavior directly related to it,that is,only indirect behavior or current inaction,it must be positively evaluated.If it is illegal,the responsibility could be attributed to this specific individual.So it is necessary to determine whether the relative person has a behavioral obligation.That is,to conduct a review through the transaction security obligation.Finally,discuss the situation where the right of request cannot be exercised.It is mainly reflected in the tolerance obligation of the victim.Judging from the typical types of the nuisances summarized by the author,they are mostly related to real estate.In private law,the restrictions on real estate rights are mainly reflected in the regulation of adjacent relations.The author combines the judgment on the adjacent relationship in Chapter VII of the Property Law and draws on the judgment ideas of the tolerance obligation in the comparative law,as well as summarizes the judgment characteristics of judicial practice in China.It is believed that if there is a corresponding standard in public law and social law for a certain type of nuisance,it could be directly applied for judgment in principle.If there is no such standard,we could refer to similar standard.Secondly,based on the German law's greater suitability in dealing with related issues,and its provisions in this regard are more elaborate.It is believed that in practice,where the judgment is vague,the German law could be used for reference.That is,when it comes to the nuisances caused by the maintenance of a state or which are intangible,basing on the impact of the substantive,local accessibility and economic feasibility to make a judgment of tolerance. |
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