Study On The Claim To Eliminate Prejudice:Focus On The Distinction Between Prejudice And Damage And The Effect Of Claims

The problem studied in this paper is the claim to eliminate prejudice in rem,which is stipulated in the Article 35 of the Real Right Law of PRC.While there are many disputes in theory and in current judicial practice because of the relatively simple regulations,as the constitutive requirements and legal effect are not explicit.Meanwhile,two key questions shall be paid more attention.The first question is to distinguish the nuisance or prejudice from damages properly,and the second one is the legal effect of the right of claim,which also involves the bearing of the cost arising from the process of eliminating prejudice.Based on the questions mentioned above,this paper is divided into three chapters.The first chapter is mainly about the basic situation of the claim.To begin with,this paper,combined with the content of right of ownership,briefly introduces the functions of the claim.As one of the effect of real right,the claim of real rights serves the purpose of guaranteeing the perfect control of the owner.Then detailed introduction is given to the historical origin and the current situation of the claims in different country,and this chapter emphatically discusses the constitutive requirements of the claim of eliminating nuisance in the end.The second chapter focuses on distinguishing nuisance from damage on the basis of the confusion and distinction problem between the claim of eliminating nuisance and the claim for tort damages.It is clarified that the exercise of the right to exclude nuisance may have the same effect as the claim for damages.However,the nature of these two liabilities are different,the nature of the claim of eliminating nuisance is state liability,while the nature of claim for damages is behavior liability.Besides,the requirement of fault element is not the reason of the distinction between these two rights of claim,but the result of the distinction.On the issue of how to divide nuisance and damage,there are four doctrines in theory: the source of hindrance theory,the initial source of the hindrance theory,the reusable theory.and the invaded rights theory.After introducing and analyzing the advantages and disadvantages of these four theories,the author supports the opinion of Picker,distinguishing nuisance from damages according to the theory of invaded rightsThe third chapter mainly discusses the legal effect of the claim to eliminate prejudice,which can be summarized as the contents of such claim and the bearing of the cost.In the meantime,other issues related to the effect are clarified as well,such as the subject of the claim and the settlement of impediment to performance when performing the obligation to eliminate the nuisance.It should be made clear that the content of such claim and the bearing of the expense are not the same,which should be considered separately.On the basis of the separation,the claim to exclude nuisance shall be the claim for action in principle,while the bearing of the expense shall be decided according to the principle of responsibilities.