On The Relief Of Adjacent Immssion In China

The immission cases often occur in practice, especially in the crowded metropolis. Dueto the fact that there are more people and less land, disputes occur when the use of real estateis inevitably detrimental to the interests of neighboring relations. Immission belongs toadjacent relations disputes. The immission system has not been specially established, but onlyset up sporadic rules in some laws related to adjacent relations, among which the foremostones are section83of the General Principles of Civil Law and section89,90of Property Law,so the immission disputes practice is complied with these legal provisions. However, theseprovisions only consider immission cases as the behavior of adjacent relations, which aregeneral provisions and make the specific operation very difficult. For example, the concept ofimmission, how to identify, how to relief and so on, have not been provided clearly, whichfall into judges’ discretion. In addition, the confusion between immission and environmentalpollution easily results in difficulties in the applying of law. Therefore, we should establish acomplete system of immission to resolve immission disputes.This paper comes from a immission case. The focus of controversy of both parties iswhether the odor coming from residential garbage which is built by the defendant and vehiclenoise and dust produced during transporting trash prejudice the plaintiff ‘s use of adjacent realestate, and whether the plaintiff can exercise right of excluding prejudice against the refuseroom built under the administrative approval and whether the plaintiff may request thedefendant to set up isolation facilities between the garbage room and the plaintiff’s house andask compensation for losses.The focuses of these disputes have triggered a series of the immission theory. It’snecessary for us to study these theories and build the immission system for the purpose ofresolving the problems in practice. This paper mainly discusses the immission system in threeaspects. The first part is an overview on immission, including the concept of immissioninfringement, its nature and characteristics. The second part is the recognition of theimmission, including the type of immission, the distinction between immission andenvironmental pollution, the recognized standards of immission. The third part is the relief onthe immission, including the private law remedies of immission, public law remedies, conflictand resolution of the former two. It will combine with case analysis, such as the analysis ofwhether the garbage odors, vehicle noise and dust in the case constitute immission, while studying the theoretical issues. It will theoretically consider the garbage and odor asimmission in accordance with the standards of "significant interference","local trafficability"and " inevitability ". As to excluding the immission, due to the conflicts occurring when theplaintiff may take the means of relief in the private and public law, the only way to achievethe purpose of the removal of infringement is to revoke the license of permission. As to theloss caused by immission, the plaintiff can still take the way of private law remedies.However, due to the infringement caused by the administrative license, the plaintiff have nochoice but to tolerant the loss, which means the plaintiff can only require the defendant to setup isolation facilities to prevent against infringement expansion, but cannot requestcompensation for the loss.According to this study, it is known that the recognition of and the remedies toimmission in practice is possible. However, it needs more research to improve the immissionsystem in China.