物权法上的排除妨害研究
发布时间：2018-10-25 12:33
【摘要】：《物权法》第三十五条确立了排除妨害请求权这一重要的物权请求权,但仅做了原则性的规定而未做细节性的安排,该模糊性导致了实务中的诸多问题。明确排除妨害的具体适用,首先应明确其主要适用于对不动产所有权及用益物权的保护,并将其与返还原物、恢复原状、赔偿损失等予以区分,此外需要重点解决的核心问题是:1)排除妨害的妨害认定;2)排除妨害的相关主体;3)排除妨害的抗辩事由;4)排除妨害的法律效果。在排除妨害的妨害认定上,应当首先将其与妨碍、侵占、损害等概念严格区分。在此基础上可将妨害首先分为侵入和侵扰两个大类,侵扰可分为有形侵扰和无形侵扰,无形侵扰又包括积极侵扰、消极侵扰和意识性侵扰。在判断是否构成妨害时考虑的相关因素主要包括:1)妨害结果的违法性;2)妨害状态的持续性;3)妨害程度的实质性;4)妨害行为的不合理性。侵入的认定仅需考虑前两项因素,有形侵扰的认定需考虑除妨害行为不合理性的其他三项因素,无形侵扰的认定需考虑全部四项因素。在排除妨害的相关主体上,结合我国现行法律规定及相关学说,有权请求排除妨害的权利人包括:1)所有人;2)用益物权人;3)居住权人;4)承租人或借用人;5)业主委员会。排除妨害请求权的相对人为:1)行为实施人(特定情况下包括出租人或者特定场所的管理者等);2)所有人;3)使用人(无需考虑其使用是否存在合法的基础)。在排除妨害的抗辩事由上,除提出不构成妨害的抗辩外,相对人还可以主张的抗辩事由为制定法规定或行政许可以及权利人同意或合同义务等特殊情况。但权利人主动接近妨害、不可抗力或者第三人原因以及多数人构成妨害等外来原因一般情况下不作为抗辩事由,而仅能在妨害本身的认定或者妨害排除的费用承担时予以考虑。在排除妨害的法律效果上,排除妨碍主要针对有形障碍物本身或其直接产生的影响带来的妨害,效果及于妨害源泉和妨害结果的排除;停止侵害主要针对持续的行为带来的妨害,效果为侵害行为的停止;金钱补偿系排除妨害不能适用情况下派生出来的救济手段,效果为对权利人的适当补偿。妨害排除费用的承担可以参照侵权法责任承担的相关规则,一般情况下由相对人承担,特殊情况下考虑共同分担或由多人共同承担。
[Abstract]:Article 35 of Real right Law establishes the right of claim of excluding obstruction of claim in real right, but it only makes the stipulation of principle but not the arrangement of detail, which leads to many problems in practice. First of all, it should be clear that it is mainly applicable to the protection of real estate ownership and usufruct, and distinguish it from restitution, compensation for losses, etc. In addition, the key problems that need to be solved are: (1) the determination of obstruction; (2) the relevant subject of excluding obstruction; (3) the defense of excluding obstruction; (4) the legal effect of "excluding obstruction". In order to eliminate obstruction, we should distinguish it strictly from the concepts of hindrance, encroachment, damage and so on. On this basis, the nuisance can be divided into two categories: intrusive and intrusive, which can be divided into visible and intangible intrusions, positive intrusions, negative intrusions and conscious intrusions. The related factors in judging whether or not to constitute a hindrance include: 1) illegality of impairing result; 2) persistence of impairing state; 3) substance of impairing degree; 4) irrationality of impairing behavior. The identification of invasion only needs to consider the first two factors, the identification of tangible intrusion should consider the other three factors except the irrationality of hindrance, and the identification of intangible intrusion should consider all four factors. On the subject of excluding obstruction, the obligee who has the right to request exclusion includes: 1) owner; 2) usufruct; 3) right of residence; 4) lessee or borrower; 5) owner's committee. The counterparty to exclude prejudice claim is: 1) the perpetrator of the act (including the lessor or the manager of the particular place, etc.); 2) the owner; 3) the user (regardless of whether there is a legal basis for its use). In the defense of excluding obstruction, in addition to putting forward the defense which does not constitute prejudice, the counterparty may also claim the special circumstances such as the formulation of law or administrative license and the consent or contractual obligation of the obligee. But the obligee takes the initiative to approach the hindrance, force majeure or the reason of the third party, and the reason of the majority of the person to constitute a nuisance, etc. Generally, it is not a defense reason, but can only be taken into account in the determination of the prejudice itself or when the expense of the obstruction is excluded. As for the legal effect of excluding obstruction, the exclusion of obstruction is mainly directed against the visible obstacle itself or its direct effect, and the effect is the exclusion of the source of obstruction and the result of obstruction; To stop the infringement is mainly aimed at the obstruction brought by the continuous behavior, the effect is to stop the infringing behavior; the money compensation is the relief means derived from the circumstance that the obstruction can not be applied, the effect is the proper compensation to the obligee. The assumption of the expense of prejudice exclusion may refer to the relevant rules of tort liability, generally by the relative party, and under special circumstances by the consideration of common sharing or by more than one person.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
本文编号：2293702
[Abstract]:Article 35 of Real right Law establishes the right of claim of excluding obstruction of claim in real right, but it only makes the stipulation of principle but not the arrangement of detail, which leads to many problems in practice. First of all, it should be clear that it is mainly applicable to the protection of real estate ownership and usufruct, and distinguish it from restitution, compensation for losses, etc. In addition, the key problems that need to be solved are: (1) the determination of obstruction; (2) the relevant subject of excluding obstruction; (3) the defense of excluding obstruction; (4) the legal effect of "excluding obstruction". In order to eliminate obstruction, we should distinguish it strictly from the concepts of hindrance, encroachment, damage and so on. On this basis, the nuisance can be divided into two categories: intrusive and intrusive, which can be divided into visible and intangible intrusions, positive intrusions, negative intrusions and conscious intrusions. The related factors in judging whether or not to constitute a hindrance include: 1) illegality of impairing result; 2) persistence of impairing state; 3) substance of impairing degree; 4) irrationality of impairing behavior. The identification of invasion only needs to consider the first two factors, the identification of tangible intrusion should consider the other three factors except the irrationality of hindrance, and the identification of intangible intrusion should consider all four factors. On the subject of excluding obstruction, the obligee who has the right to request exclusion includes: 1) owner; 2) usufruct; 3) right of residence; 4) lessee or borrower; 5) owner's committee. The counterparty to exclude prejudice claim is: 1) the perpetrator of the act (including the lessor or the manager of the particular place, etc.); 2) the owner; 3) the user (regardless of whether there is a legal basis for its use). In the defense of excluding obstruction, in addition to putting forward the defense which does not constitute prejudice, the counterparty may also claim the special circumstances such as the formulation of law or administrative license and the consent or contractual obligation of the obligee. But the obligee takes the initiative to approach the hindrance, force majeure or the reason of the third party, and the reason of the majority of the person to constitute a nuisance, etc. Generally, it is not a defense reason, but can only be taken into account in the determination of the prejudice itself or when the expense of the obstruction is excluded. As for the legal effect of excluding obstruction, the exclusion of obstruction is mainly directed against the visible obstacle itself or its direct effect, and the effect is the exclusion of the source of obstruction and the result of obstruction; To stop the infringement is mainly aimed at the obstruction brought by the continuous behavior, the effect is to stop the infringing behavior; the money compensation is the relief means derived from the circumstance that the obstruction can not be applied, the effect is the proper compensation to the obligee. The assumption of the expense of prejudice exclusion may refer to the relevant rules of tort liability, generally by the relative party, and under special circumstances by the consideration of common sharing or by more than one person.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
【参考文献】
相关期刊论文 前1条
1 李云波;;嵌入不可量物排放关系中的容忍义务[J];扬州大学学报(人文社会科学版);2014年04期
相关博士学位论文 前2条
1 刘丽;侵权法上私人妨害制度比较研究[D];对外经济贸易大学;2014年
2 李云波;相邻不可量物排放关系的私法调整[D];复旦大学;2011年
，本文编号：2293702
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2293702.html
