【作者】 杨顺义；

【导师】 马新彦；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 在当代社会,人与人之间因物权尤其是不动产物权引起的相互权利义务关系甚为紧密,相互之间的妨害、侵扰频繁发生。妨害排除请求权作为一种物权请求权,发挥着越来越重要的作用,也是在适用物权法过程中必须研究的课题。德国民法经过一个多世纪的发展,对此已经形成了成熟的理论规则。而英美侵权法通过众多的案例发展并总结了许多成熟而合理的处理私人妨害侵权的规则。本文通过对德国民法、英美法中的私人妨害制度及相关域外立法例的考察,主要从妨害排除请求权的适用范围、构成要件、诉讼时效及救济方式等四个方面对妨害排除请求权疑难问题进行分析,并希冀能为我国妨害排除请求权制度的发展和完善起到抛砖引玉的作用。更多还原

【Abstract】 The petition right on removal of interference, the property is in a satisfactory state of the property occupied by methods other than prejudice, the prejudice people had the right to request its removal. The petition right on removal of interference is a major property rights claims. Today, and directly applicable to their permitted scope, and has more important practical role than claim of recovery. This is because with the development of modern science and technology, human space increasingly close relationship, the correlation between prejudice, nuisance frequently happen; Technology can not be brought about by the development of the volume of (harmful noise, dust, smoke, sewage, sludge, shock, radio waves, etc.) on the right to a normal life and business prejudice deteriorating; Modern mass media (such as newspapers, radio, television), which led to the personal intervention in the growing private sector expansion."People’s Republic of China Law on Real Right," while Article 35 provides the petition right on removal of interference, but in the application process, it is faced with legislation designed imperfect plight. Legislators established a requirement in a not very clear at the request of the right. This is a difficulty that is how to determine the constitutive elements of the petition right on removal of interference ,and how to apply the "Real Law" section 35 to remove prejudice and realize their rights of the complete state of the law. Otherwise, just let provisions hypothetical, this is not the original intent of the law. German civil law after more than a century of development, The petition right on removal of interference system has already formed a mature theoretical rules. Britain and the United States by many tort cases and summarizes develop many mature and reasonable private nuisance rules. Based on German petition right on removal of interference system, the Common Law in the private nuisance system and the relevant legislation prejudice of the inspection, Mainly from scope, constitute elements, action limitations and relief methods, have a superficial discussion and analysis about the petition right on removal of interference. The author hopes this thesis will be benefiting the Chinese legislature in the end.In addition to the introduction, this thesis is divided into four parts.PartⅠ. The application scope study of the petition right on removal of interference. Based on German petition right on removal of interference system, the Common Law in the private nuisance system and the relevant legislation prejudice of the inspection, from the ownership, other material right, possession, the right personality, identity and intellectual property rights, analysis of the scope of application of the petition right on removal of interference. That should not be limited to the ownership and possession of property, but should apply to include moral rights, the right to identity and intellectual property rights within the context of absolute.PartⅡ.The constitutive elements study of the petition right on removal of interference. Clearly the petition right on removal of interference Elements,and it is great significance in practice. First, the thesis analyzes the common law system of private nuisance elements that constitute an unreasonable prejudice. The irrationality of prejudice is a very complex issue. We should be considered highly sensitive and property prejudice to the location factors, the time factor, and prejudice duration and so on. Second, the thesis analyzes German petition right on removal of interference elements that the wrongfulness of prejudice. In German law, the petition right on removal of interference request that prejudice against the law. The wrongfulness of prejudice request that the ownership has set no tolerance obligations. This part from private and public law aspect analyzes owners’tolerance obligations, and focuses on tolerance in the relations between the neighboring obligations. Finally, the thesis has a comparative analysis to two cases of the Legislative, and gives China’s Property Law and constituting elements of the perfect put forward suggestions. PartⅢ. The action limitations study of the petition right on removal of interference. The objective of the petition right on removal of interference is that maintain a satisfactory state property. In one view,Property ownership is a particularly resilient. Consider revising, since the property does not apply extinctive prescription, it should not apply action limitation. Otherwise, if the scholars will be said, the emergence of a dominant unable to restore the complete state property, the property has lost its essence; it is harmful to the economy also violated legislative intent. On the other hand, the petition right on removal of interference as an independent petition right, it should limit by he action limitations. Apart from a few exceptions, this applies to all petition right. Seen in this light, he petition right on removal of interference should also apply he action limitations. Based on German law, Japanese law, China’s legislative relevant provisions and the views of scholars, the petition right on removal of interference as right of claim for real thing, it belongs to the effectiveness of property, and it is absolutely the right defense system, inalienable and absolute right, so it doesn’t apply the action limitations. As long as the state continued infringement, the right people should be able to rule out the possibility that prejudice to the absolute protection of property rights.PartⅣ. The relief measures study of the nuisance. In the common law system of private nuisance, relief victims there are three ways for relying victims, namely damages, injunction and abatement - by the way mitigate the damage. Damages and injunction are the most basic way. Consider revising, in the laws of Germany, the relief of obstruction of the way through removal nuisance and monetary compensation in two ways. Some argue that this, If prejudice has been caused and sustained in the state, Owners may request exclusion prejudice, prejudice through the petition right on removal of interference to restore the integrity of property right. But when excluding prejudice will prejudice caused losses greater than the cost of excluding prejudice, damages to the way alternative way to remove prejudice of obstruction of relief reasonability. Because under German law on the relationship between the common principle of the adjacent, it should be between neighbors in good faith commitment to the principle of reciprocity and obligation to take care of the interests of the other side. The petition right on removal of interference must not go beyond the principle of good faith exercise of rights restrictions. The right people in the exercise of the right to request exclusion should take care of the interests of prejudice. Secondly, this practice is also consistent with the principles of economics, and it benefit to reduce transaction costs, promote the social wealth maximization.更多还原