Article 1167
Where the tortious act endangers the safety of the person or property of others, the infringed party has the right to request that the infringer bear tort liabilities such as stopping the infringement, removing obstacles, and eliminating dangers.
1. The main purpose of this article
This article is about the manner in which responsibility is to be borne for endangering the personal and property safety of others.
II. Evolution of the Provisions
In the fourth section of Chapter VI "Civil Liability", "Ways to Bear Civil Liability", Article 134 of the original General Principles of the Civil Law stipulates ten ways to bear civil liability, of which the methods of bearing civil liability in items 1~3 are to stop infringement, remove obstacles, and eliminate dangers. In Chapter II of the original Tort Liability Law, "Liability Composition and Liability Methods", Article 15 inherits the legislative ideas of the original General Principles of the Civil Law and stipulates eight ways to bear tort liability, that is, "payment of liquidated damages" and "repair, rework, replacement" (the function of "restitution" in tort liability) that are exclusive to contractual liability in Article 134 of the original General Principles of the Civil Law are deleted, and the remaining eight liability methods that can be applied to tort liability are retained, of which the 1~3rd liability methods are also "stop the infringement, Removing obstacles and eliminating dangers". At the same time, Article 21 is added to the same chapter, adding a provision on the liability for endangering the personal and property safety of others, that is, "if the tortious act endangers the personal and property safety of others, the infringed party may request the infringer to bear the tortious liability such as stopping the infringement, removing the obstruction, eliminating the danger, etc." In essence, this provision has the function of a basic norm for the right to claim for the prevention of infringement, but judging from the structural arrangement of Chapter II of the original Tort Liability Law, it seems that it has not yet gotten rid of the legislative idea of taking it as a mode of liability: juxtaposing this provision with the provisions on the scope of subject, object and calculation standard of liability for damages is actually a concretization of this provision as a concretization of the scope of application of the liability mode in items 1~3 of Article 15.
In accordance with the requirements of systematization and logic of tort liability, the tort liability section of the Civil Code has re-compiled the relevant contents of the original Tort Liability Law, and compiled all the contents related to the composition of liability into Chapter I "General Provisions", and the mode of liability is the content of Chapter VIII "Civil Liability" of the General Provisions of the Civil Code, which is uniformly stipulated in Article 179 together with contract liability, realizing the systematic separation of the composition of tort liability and the mode of liability. Among them, the most noteworthy and important change in the legislative logic and thinking is that the provisions on the right to prevent infringement are moved to the liability for general tort and special tort after the liability for general tort and special tort, and are listed as the liability norms for general tort, special tort and nuisance tort. In the sequence of provisions in Chapter 1 of the "General Provisions" of the Tort Liability Part of the Civil Code, Article 1164 is the provision of "Scope of Adjustment", and the following Articles 1165, 1166 and 1167 are three parallel provisions on the composition of tort liability: Article 1165 is the provision on the composition of general tort liability, and Article 1166 is the provision on the composition of special tort liability. Article 1167 is a provision on the composition of liability for "nuisance tort", which juxtaposes the wrongful act with the obstruction of rights and interests, and juxtaposes the first two provisions of "pre-existing tort", so it can be called "immediate tort". This not only reflects the scientific legislative system, but also reflects the characteristics of the times when the concept of infringement keeps pace with the times, and provides a more complete system and more logical legal remedies for the full and comprehensive protection of civil rights and interests.
3. Interpretation of Provisions
This article is about the injunction of tort liability.
An injunction against tort liability means that when the infringement endangers the safety of persons and property, the infringed party has the right to request against the infringer to stop the infringement, remove the obstruction, eliminate the danger, etc. The conditions for the application of these types of tort liability are that the tortious act endangers the personal and property safety of others and has not caused actual damage. In fact, even if the infringement has caused damage to the victim, the infringed party may avail of these remedies in addition to damages. However, the emphasis in this article is on the former.
When the infringement endangers the safety of persons or property, the cessation of the infringement is an injunction. When this happens, a request to the court to stop the infringement and the court rules to stop the infringement is to prohibit the perpetrator from continuing to commit the infringement. In fact, the removal of obstruction and the elimination of danger are also specific measures of the injunction, which means that in the course of the infringement act, although no damage has been caused, but the obstruction has been caused, or there is a danger of damage to the right, the act that constitutes an obstacle to the right should be eliminated on the basis of stopping the infringement, and the risk of damage to the right should be eliminated.
This article does not stipulate specific procedures for requesting the infringer to bear the above-mentioned liability, and in accordance with legal principles, litigation procedures shall be applied to resolve the matter. In accordance with the requirements of the injunction, the infringed party shall be allowed to apply for an injunction before litigation to prevent the infringement from continuing to be carried out and causing damage. In general tort liability cases, whether to grant a pre-trial injunction can be explored, but the party applying for the injunction must provide security, and the applicant should be liable for compensation if the request is wrong.
4. Cases
You Mouying v. He Mouqiang et al., a case of elimination of nuisance disputes
Facts: On November 30, 2015, the R Villager Committee of Z Town, Yiling District, Yichang City, issued a "Confirmation of the Right to Use Non-contracted Land" to He Mouqiang, confirming that He Mouqiang had the right to use 1.21 acres of non-contracted land named "Highway Side". Because You Mouying and Li Moufeng occupied and used the land, He Mouqiang failed to negotiate several times, so he sued the court, requesting that You Mouying and Li Moufeng be ordered to stop the infringement, return the land to He Mouqiang after removing the debris on the land, and compensate for economic losses. The court of first instance held that the property rights of the right holder are protected by law and may not be infringed upon by any unit or individual. The plaintiff has lawfully obtained the right to use the land, and has the right to occupy, use, and benefit from the land in accordance with law, and no one may obstruct its use. The defendant's unauthorized occupation of the land for which the plaintiff has the right to use without the permission of the plaintiff has constituted infringement, and the defendant shall bear the tort liability for removing the obstruction and returning the land. The court of second instance rejected the appeal and upheld the original judgment.
5. Analysis
Before Article 35 of the Property Law stipulates the right of the owner of the property right to exclude the obstruction, Article 134 of the General Principles of the Civil Law has made the exclusion of obstruction a widely applicable form of civil liability. The Tort Liability Law clearly stipulates that the elimination of obstruction is the way to bear tort liability. This practice is continued in Part I of the Civil Code, "General Provisions", and Part X (Tort Liability). The condition for the exclusion of obstruction is that the obstruction must constitute a continuous interference with the consummation of the absolute rights of the infringed party, and the obstruction must be carried out in an unlawful manner. This is because the removal of obstruction is an absolute right to claim, and the infringer is not at fault. As long as any person's interference with the absolute rights of another person is not based on a contractual or statutory right, it constitutes an obstruction, and the person who is hindered has the right to demand that it be excluded. In this case, He Mouqiang obtained the right to use the land in accordance with the law, and enjoyed the rights to occupy, use and benefit from the land. Long Mouying and Li Moufeng's unauthorized occupation of the land with the right holder's right to use without the permission of the right holder constitutes infringement, and they should bear the tort liability for removing the obstruction and returning the land.