On Noise Tort And Its Remedies

As modern scientific technologies are broadly utilized, disputes involving neighboring relations are increasing dramatically, which are caused by the invasion of certain immeasurable things such as noise. The speedy cars on the highway, clacking metros or streetcars, buzzing airports, the rumbling of big scale construction projects, as well as some clamorous recreation facilities such as KTV, more and more things become noise-emitting sources. Ironically, as the hosts of cities, not only are we surrounded by noise during our working hours, but also we are encircled by noise in our spare time. We try our best not to notice the existence of noise, however, our efforts makes us feel thoroughly tired and worn out. Facing with those facts, this paper held that we have to find ways to resolve the following tasks:number one, researching on the systematic resolutions of noise tort disputes; number two, trying to unify the judging standards for noise tort in judicial practice. Fulfillments of those goals are truly good for the appropriate settlement of disputes as well as for the development of harmonized society.This paper has three parts. Chapter one "the basic theories of noise tort" has three sections. Section one discusses the matter of "the boundary of toleration duty". Due to the tension existing between the limited resources and the constant increasing of population, it is possible that "dispute of rights" would happen among neighboring parties. In order to settle those disputes, neighboring parties need to mutually respect each other's interests. On the level of legal technology, that "respect" can be translated as "toleration duty". "Toleration duty" is the core of the whole system of neighboring relations, and German Civil Law had clear stipulations about that. Section two debates the conception of noise tort. And based on two typical cases, the author analyzes the current judicial practice about noise cases. Section three thoroughly expounds the "balance of interests" used in the process of noise tort settlements. Fundamentally speaking, the conflicts of rights are the conflicts of lawful interests. There are two main reasons for these conflicts:one is the "social nature of human being"; the other is "the uncertainty and ambiguity of rights'boundary". Because those two reasons assuredly exist in our daily life, conflicts of rights are unavoidable. As a method of "reconstruction of laws", "balance of interests" can help us resolve some conflicts that laws do not clearly stipulate. However, in order to avoid the subjective bias of judges while weighing interests, and to guarantee the judgment complying with the reality and substantive justice, judges should consider these following elements:the basic hierarchy of rights; the fundamental contents of rights; the empirical rules of preponderance of evidence; the reasonability and practicability of judgments; local civil customs; and the influence of social policy, etc.The second chapter discuss the three constituent elements of noise tort——"the unlawfulness of defendant's behavior", "the damages", and "legal causality". This paper held that, the core of "the unlawfulness" lies in "the boundary of toleration". As for this, we can learn something from "the theory of endurableness" stipulated in Japanese laws. About the "causality" element, the author held that we should adopt the principle of "presumptive causality". Only resorting to that principle, can we give more sufficient protection to the interests of the noise tort sufferers, and can we attain the substantive justice at last. Furthermore, the paper also held "the wrongfulness" should not be considered as one of the constituent elements.The third chapter deals with the problem of remedy. The first section debates the importance of private remedy for the settlement of noise tort. In the second section "public force remedy", the paper mainly discusses these following procedural matters:(1) the distribution of the burden of proof; (2) the possibility of using "similar mandatory party joinder" for noise tort; (3) the forms of liabilities; (4) "the balance of interests" requires judges thoroughly disclosing their judicial reasoning; (5) how to relief the "subsequent damage" happening in the future, etc.In the conclusion, on one hand, the author reviews main opinions of the dissertation. On the other hand, she concisely explains the logical relationship between those main opinions. Furthermore, the author also discusses the theoretical values and the practical values possessed by the dissertation.