妨害排除与损害赔偿
王洪亮妨害排除与损害赔偿
A batement of Nuisance and Compensation for Damage
期刊名称：《法学研究》
期刊年份：
作者：王洪亮
单位：清华大学法学院
中文关键词：物上请求权;防御性请求权;妨害排除;妨害防止;损害赔偿
英文关键词：
中文摘要：
我国物权法规定了防御性物上请求权，并承认其物权效力。同时，侵权法上也存在防御性请求权制度，与德国法上防御性物上请求权一般化相合。在防御性物上请求权一般化后，需要重新区分防御性请求权与损害赔偿请求权。二者的主要区别在于妨害的持续性以及排除妨害之效力只及于初始的妨害源。排除妨害请求权中的妨害应具有结果违法性。由于妨害排除法并未体系化，缺少明确的构成及适用范围规则，可以准用损害赔偿法的部分规则。
英文摘要：
The Property Law of China provides for the first time expressly the denied or defensive claim right (negatorische Ansprüche), and recognizes that, it is the effect of the property right and has the function of prevention. At the same time, according to the General Rules of Civil Law of China, there is also preventive claim right in tort law, which is in line with the defensive claim right in Germany. In German law system, the creation of the defensive claim right in tort law brings about the general trend of the defensive claim right. On the ground of §1004 of the German Civil Code (BGB) as well as other relevant rules, some scholars have abstracted the basic principles of preventive right protection (vorbeugender Rechtsschutz). That is to say, rights should be protected not only when they have been damaged, but also when they are being or to be damaged. The result of such development is that, whether the actor has fault or not can not be a distinction standard of the defensive claim right in property law and obligation law. The key point of distinction between them is their different legal effects, i.e., whether the actor should abate nuisance or should compensate damages. In Germany, it’s generally held that, nuisance is some sustained obstacle which one should be responsible for, and damage is the non-sustained obstacle. There are also different opinions about this problem, and the author of this paper approves the theory of risk allocation. According to this theory, the cost to remove the nuisance should generally be assigned to person who has caused such nuisance. A person should be responsible for the nuisance if his act or property has caused the nuisance. As far as the element of illegality is concerned, there are significant differences of the defensive claim right in property law and tort law. Compared to the damage compensation law system, the nuisance abatement law has not been systematic yet. So the defensive claim right in property law can refer to certain rules of the obligation law, e.g. the rules of the common fault, and so on. The idea of preventive right protection and the distinction between compensation for damage and abatement of nuisance, however, are very significant for the maintenance of self-government system of property right, as well as for the establishment of tort law system. Key words: property claim right, the denied claim right, abatement of nuisance, prevention of nuisance, compensation for damage
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