중국 물권법(2007년)의 상린관계의 서론적 연구 -주요내용과 시사점을 중심으로-

Abstract

In this paper, we review the main contents and its implications as our basic research on how to Relationships of Adjacency newly established China Property law(2007). Relationships of Adjacency is neglected in our study of property law, except the right-of-way land around there(Article 219) and pollution(Article 217). So we do a comparative law between Chines Property law and Korean Civil Code. China Property law defines the Relationships of Adjacency its Chapter 7, which stipulates the previous General Principles of the Civil Law and the Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China, comparatvie legislation. To begin with, the right holders who are adjacent to one another on a real property shall correctly handle the relationship of adjacency in accordance with the principles of facilitating production, making things convenient in life, showing unity and providing mutual assistance, and fairness and equity(Article 84). This gives the implications of the future as a guiding principle of the relationship of adjacency in our Code civil. Next, Where there is any provision on the handling of contiguous relationship, such provision shall apply; where there isn't any provision on it, the contiguous relationship shall be handled in light of the local customs(Article 85). This is a generalization of the sources of law of the relationship of adjacency, including the customs. Then it defines the contents of the individual relationship of adjacency. The holder of a real property shall provide necessary convenience for the use of water and drainage of the adjacent right holders. The utilization of natural running water shall be rationally distributed to the adjacent right holders of a real property. As for the drainage of natural running water, the natural current direction shall be respected(Article 86). The right holder of a real property shall provide necessary convenience in case a adjacent right holder has to use his land because of passage or any other reason(Article 87). Where the right holder of a real property has to use a adjacent land or building for such reasons as constructing or repairing a building, or laying wires, cables, water pipes, heating pipelines or fuel gas pipelines, etc, the right holder of the land or building shall provide necessary convenience(Article 88). As for the construction of a building, no entity or individual may violate the relevant engineering construction standards of the state or block the ventilation, lighting or sunshine of any adjacent building(Article 89). An holder of real property may not discard solid wastes or discharge atmospheric pollutants, water pollutants, or such harmful substances as noise, light and magnetic radiation by violating the relevant provisions of the state(Article 90). When excavating a land, constructing a building, laying a pipeline or installing an equipment, the right holder of the real property may not endanger the safety of any adjacent real property(Article 91). In case the right holder of a real property has to use a adjacent real property for reasons of using water, drainage, passage or laying pipelines, etc, he shall do his best to avoid causing any damage to the right holder of the adjacent real property; if any damage is caused, he shall make corresponding compensations(Article 92). This study on Relationships of Adjacency of the China's Property law would give a lot of thought and suggestions to our Relationships of Adjacency, and it will deepen further research, including the legislative sugession, so its task ofthe the operation of future practice.