A Comparative Study on Immission System

 A cura di Tingting Zeng-



Immission System originated from the Roman law,it first appeared in the provisions of excellent Shi Dingni “Digest” in section 8 Article VIII of Chapter V of the proceedings on the easement, and was inherited and transferred by countries later, then becoming direct source of Civil Law rules. The development of society bring many inevitable problems to us,as a result of a greater pressure for expanding number of people ,land pressures ,utilization of resource ,deteriorating environment  , a lot of Immision  like noise ,hot-gas, stink, radiation material was produced by the industrial development of our society ,making the people who lived nearby suffer a interference invasion ,and then trigger a lot of legal disputes.This paper aimed at using a methodology in comparing analysis of different countries on the subject matter relating to policy and law to complete Article 90 of property law in China.

Keywords: Immission system    duties of tolerance   relief methods  


Many people perceive immission as substance which has no certain form, it’s immeasurable, divergent and intrusive.With the development of industrial society, immission system has been widely used in the field of national laws, such as Germany called “immission” (Immission), France called “nuisance neighbors” (trouble de voisinage), Japan called “public nuisance violation,” the Anglo-American called “private interest prejudice” (private nuisance),But in the “Property Law” of China, only the first 89 and 90 relate to the immission system, nothing  more to describe the scope of the immission or the margin of duties of tolerance ,as well as the protection .

一、The stipulations concerning  for Immisson system in some countries 


1: stipulations:As described in  article 906 of German Civil Code,the ownerships of land can’t prohibit the interference invasion made by gas, steam, stink, smoke, soot, heat, noise, shock or similar interference invasion made by lands, but the limit should be set up as this kind of invasion won’t hinder or just very lightly hinder the using age of lands .In generally,the invasion under the number which calculated as a maximum  or standard could evaluate to be a light one according to the stipulations and directives.in another hand ,the significant invasion was caused by the normally use to another land and meanwhile it can’t be prevented by expecting and reasonable way in economic.The ownerships  of the lands must tolerate this kind of invasion ,if the invasion is beyond the limit of reasonable and their interests of lands been infringed the ownerships can ask for pecuniary compensation to another user of lands .(3)Special pipelines are not allowed。

2: Analysis

      (1) According to Article 906 of the German Civil Code: Immision is defined as “gas, steam, stink, soot, heat, smoke, noise, shock and other similar interference invasion produced by other lands”. stipulating the similar interference invasion is also one part of interference invasion.Similar interference invasion generally should include the invasion produced by dust, quarry dust, gray, spark, moisture fungus, electric current,snow, fallen leaves, and light. After that ,they also put small  size and inevitable animals in to the similar interference invasion, such as bee and mouse .Apart from the substance stipulated in the provision,German also put “perception possibility” ,”negative invasion”, “concept invasion” into Immision in the legal  practice. The “negative invasion” generally made by building facilities, like sunshine, ventilation, groundwater,“concept invasion’’  means a situation that brings discomfort to people psychologically, like setting up parking for corpse, garbage storage site, sex shops, KTV etc., near to people, making neighborhood suffer mental damage to a certain  extend .2The limit for duties of tolerance:by analyzing (3)we can know,if the result of damage made by Immision can be described as some number, that’s to say there are different situation to judge the responsibility and right,if the  number is under the maximum or standard,the ownerships of lands have to tolerate the behaviors ,we call this as absolutely duties of tolerance  , but if the number is right at standard or maximum or more than it, the ownerships of lands don’t need to bear the duties of tolerance ,oppositely ,they get the right to ask compensation  for damages .when we though the damages beyond the number of maximum or standard  can be  substantiality damages,we actually  ignore sometimes there maybe not a substantiality  damage ,but it definitely  have the same influence  with significant interference  of invasion ,so ,the substantiality  isn’t the only standard  to measure the extent of damage , in view of this ,when we talk about the margin to judge the duties of tolerance  ,the key step maybe to definite  the significant interference  of invasion  correctly  in German Civil Code .The criteria of judging  the significant  interference  of invasion is vary from each other,at present ,the theory  of “Rational people in general ” become a main factor to be taken in to account ,the maximum and standard  based on the evaluation and measure related with scenes become  a margin of duties  of tolerance ,to do this ,we can further balance the power between  public law and private law ,to make it more detail ,the ownerships of lands can got the protection and ask for compensation  only under three conditions meet each other at  the same time:firstly,the result of substantiality damage or transitivity  damage ;secondly,the result must evaluate by generally standard in local place ;thirdly, we can’t take economical measure to avoid it

    (3)assertion of rights :There are three core stipulate in article 906(2) of German Civil Code,the first is the duties of tolerance;second is the right of asking for a compensation;third is the right of elimination of the obstruction ,in other word,when the invasion is measured as non substantiality damage or non transitivity damage ,the ownerships of the lands have absolutely  duties of tolerance ,when the damage measured  as substantiality damage or transitivity  damage ,the ownerships of the lands have relatively duties of tolerance .To make it more detail,there are two situations when the interference of invasion is significant ,one is : it’s a common way to use the lands,meanwhile,it can’t be avoid  by measure or technological methods ,then,the ownerships of lands can ask for compensation  ,under this situation ,the fault of the behavior  don’t require ;the other one is :the interference of invasion isn’t the common way ,or the the interference  of invasion can be avoid by economic or technical methods ,then ,the ownerships of lands can get the right to ask a compensation ,but under this situation ,the fault of behavior must be require  .


1: stipulationsThere is no direct stipulation about Immission system in France Civil Code. However there is a general and limited stipulations about nuisance of neighbors through case and doctrine and put this into the scope of servitude. This system’s main contents are noise, soot, shock, stink, light pollution, leaf damage, dust, sunlight, ventilate overlook, and the interference of waves, for example radio and television waves.     


2: analysis

     (1)There is little stipulation about Immission system in France Civil Code,It only involves the easement and servitude  of book 2 (4) of France Civil Code, as same in German. France also put the “negative invasion” and “conception  invasion” into Immision, however, it’s still far from giving solution to the problem in reality by limiting the distance  between source of invasion and the place of victim. However,  there are cases and doctrine in France ,which fill the gap in France Civil Code.

  2The limit for duties of tolerance: In France,they call duties of tolerance as the “theory of tolerance limits”, that’s to say, there exist an inevitable invasion in the process of using adjoint real estate, but ownerships have to bear situation based on the necessary of living together, at the same time. This kind of invasion shouldn’t cause any damage over the limit to people. In the stipulate of “negative invasion”, there is one margin in measuring  the damage – excessive damage. The difference  between France and German’s significant  damage is the later have two kinds of situation ,one require  the fault of behavior, and another one is not. In France, when we take excessive into account, there is no requirement for fault or the intention, so the “excess” is the only substantive requirement for people to ask the behavior for responsibility. Generally, the judge always consider the element, like extent of damage, the kind of damage and the tortuous action to judge the margin of excessive damage.

    (3)assertion of rights: Article1382 of France Civil Code have a stipulation: “anyone made a damage by themselves to other one must be responsible for it”the form of responsibility divide into  two ways; one is recover, such as installation  for noise elimination ,or the installation for dust prevention;the other one is compensation,mainly include the compensation or substance  and mental ,the judge can choose a way which can protect the victim best .

(三) Japan

  1stipulationsThe Immission system in Japan is called “public nuisance violation”, as is described in《Basic law of public hazard 》: “public nuisance violation” may contain air pollution, water contamination,soil pollution,noise,shock,land subsidence and stink ,etc,which produced by the process of activity of daily  life and business and bring a damage to the people’s health and environment ,as well as sunlight and ventilate also be classified as public nuisance violation later. After revising the 《Japan Civil Code》, there are some new contents about the public nuisance violation between adjacent lands in Articles 234, 236, 237, mainly stipulate the distant between adjacent boundary and the precaution for Immission.

(2The limit for duties of tolerance: the duties of tolerance was called “tolerance limit theory” in Japan, and became a basic theory of judging whether it meets “public nuisance violation”. The “tolerance limit theory” is relatively complicated; it does not only consider the invasion whether substantive or excessive, but also combine with the elements of territory, time, the extent of victim benefit, the relationship of the turn of utilizing land and whether  it can be avoided. In Japan, the margin of duties of tolerance of public nuisance violation vary from different places and different characters, such as manufacturing district or residential areas, day off or work day, urban resident or rural  resident, public benefit or private benefit, different situation has different margin . To sum up, there isn’t a straightforward  margin of duties of tolerance about Immision in Japan, but various kinds of situation we need to take into discussion.

(3)assertion of rights: there are two kings of way for the relief methods ,first is violation of the ban ,mainly include prohibitive stipulation for trespasser,the purpose of this provision aimed at controlling the source of public nuisance violation;second is compensation,the trespasser must shoulder the responsibility without requirement of fault due to the infringement ownerships according to the Japan Civil Code ,and the composition is measured by money,in this case ,the provision of article 417 apply.


(1)stipulations: There is no conception or stipulation about Immison in Anglo-American, but two systems in general law of Anglo-American to protect lands from invasion; Trespass and Nuisance. Nuisance include private nuisance and public  nuisance, the later is an unreasonable interference to use lands for plaintiff,such as the interference of light, noise, smell, as well as the behavior of setting up bawdy house and sex shop near to the house of plaintiff. Public nuisance is kind of behavior which interfere public benefits, such as threatening public health, safety and morality. The essence of private nuisance is the protection of using lands, specifics including the negative nuisance and conception nuisance. Anglo-American stipulate private nuisance as a kind of liability for tort, mainly include the damage for lands, and the influence to the ownership in peace, safety, health and recent situation.etc.

    (2)The limit for duties of tolerance: “rationality” is the standard of formation of private nuisance, that’s to say it’s the margin of duties of tolerance. Moreover, if the invasion is unreasonable, the ownerships can get the right to ask for protection instead of tolerance. The elements to judge a behavior whether reasonable include the subjective motivation, the extent of act, influence of results, as well as whether the objective is on purpose  or a misstep, the invasion whether serious, the measure whether been adopted to avoid  the result and the result whether it has a significant influence. “Rationality” and “excessive” are the content of private nuisance and has become the margin of duties of tolerance in America, in this case, “excessive” means whether the invasion is significant which generally be judged by the feeling of normal person, and also consider the interest of group who suffer a damage at the same time, based on this, “vulnerable” and “susceptible” were introduced in to the system. 3assertion of rights: two methods are available in protecting people from infringement by Immision in America: compensation is a general way that reflect a damage awards, by which the amount of the compensation is measured by actual damage; against exclusion is another way contrast the compensation. Mainly applicable in the situation where the damage is continuous, but court seem to not prefer to adopt it widely, for it brings a limit to the development of economic. Typical case is: when there is an assert about the new building which was constructed recently ,but it  face to be tear down for infringing the easement of right of nearby people, the ,question then is:does tearing down the building a more worthy way than to bring a protection for people in this case? Actually, when tearing down the building bring a loss for example, slow down the economic development, it is far bigger than the infringement caused by building. It is not worthy to tear down the building, but better to choose another way to protect the right of easement. So, “against exclusion” has a limit in some situation, these situation is clear at a glance, nothing but compare  the interest of “against exclusion” and protection for easement  of rights, if the later is smaller than the former, it’s better to choose compensation  to protect rights.

  (五) Other countries 

  According to the article 684 of the 《Swiss Civil Code》:“(1)anyone who enforces the right of ownership especially business industry on lands should bear in mind they have a duty that shouldn’t cause excessive damage on neighbors: (2)it must be forbid if the damage caused by soot, impurity gas, shock are unbearable according to the local customs.” Obviously, there isn’t a definitely scope of Immission in Switzerland, only simply to give an example for Immission and stipulate a duty of care for Immission invasion, that’s today lightly Immission invasion is allowed in Switzerland. According to the article 976 of Quebec of Canada Civil Code: neighbor should tolerate the interference invasion which is not beyond the limit that measured by the property and location of lands, and the local customs. We can see, only the interference of invasion beyond the limit be prohibit by law in Canada. According to article 900-903 of 《Italian Civil Code》,the right of easement like lighting and overlook belong to the scope of adjacent relationship of property, in that case Immison system can apply if there is any damage caused by Immison

二、Analysis based on the comparative study of Immision system

German has the most perfect and specific stipulation in Immission system compare with other counties, including the scope of Immission, the limit of duties of tolerance and the model for assertion of rights; here is no stipulation about Immision but a general stipulation about nuisance neighbors in《France Civil Code》, nuisance neighbors are regulated in the right of easement, excessive damage is the margin of duties of tolerance, compensation and against exclusion are the way of protection; for Japan, Immission is called public nuisance violation, fault is not require for being asked responsibility, and there is not a definite margin of duties of tolerance, it must be analyzed  according different  situation. Lastly, violation of ban and compensation are the way to protect people. For Anglo-American, there is not a conception and definite stipulation of Immision system, but two systems to protect lands from damage, trespass system and nuisance system. “Rationality” is the margin of duties of tolerance in U.K,“rationality”and“substantiality”is the margin of duties of tolerance in American. Switzerland, Canada, Italy, etc, have different stipulation about Immison system, Switzerland from the perspective of “excessive”, definite the margin of duties of tolerance, Italy and Canada from the standard of local position of lands and local customs to definite margin of duties of tolerance. Although there are different stipulation about Immison system, but have some same characteristics, Civil law system is more completable than Anglo-American law system, but Anglo-American system gradually be completable through  case and theory. However, there can’t be a uniform stipulation about Immision System for the different background and situation. It is important to find a system that is suitable for the development of a particular country.

三、legal provision design about Immison in China

In China, the provision involving Immission system are article 90 of《property law》,article 65 of《tort liability law》 , article 124 of 《General principles of the civil law 》, article 41《environmental  protection law》,article 61of《environmental noise pollution control act》, article 62 of《air pollution prevention law》, but all these provision are not comprehensive and mature for lacking of criteria to judge and the way to protect victim .Although the stipulation about the Immision isn’t uniform and has there advantages respectively , but china  belong to civil  law system ,is quite different  from Anglo-American, we should take the German stipulations concerned for reference in the course of drafting our own property law and also take into account our nation’s actual situation in building up immision system .

(一)Article 90 of property law may amend as follow

(1) Immison should include gas (such as coal gas, steam, stink), smoke (such as soot, dust, smog, stive), sound (such as noise, shake, radio, television, etc), building (such as sunlight, ventilate, overlook), conception of infringement (such as setting park for corpse, garbage storeroom, sex shop, KTV) and similarity  inference (such as heat, light pollution, electromagnetic wave, radiation, leaves invasion, etc)

(2) Three criteria to measure Immision: slight, larger, significant. number of class: slight is below standard, larger is between standard (include) and  extremity number (not include), significant is above extremity, the details data about the number should refer to the data stipulated by national government; if it’s hard to number: according to the rational person and local customs ,discretion should be used by judge. 

(3) Assertion of rights: if the inference of invasion is slight, the ownerships have a duty of tolerance and can’t ask for compensation or against exclusion or whatsoever. If the inference of invasion is larger, ownerships has duty of tolerance, but entitled a right to ask for compensation (make up for the loss), at the same time, they don’t have the right to ask against exclusion or compensation (liability for tort). If the inference of invasion is significant: should consider two situations, when the invasion is inevitably and conform to the local customs, wnerships have a duty of tolerance and can ask for compensation (liability for tort); when the invasion is not conform the local customs and avoidable, ownerships don’t have the duty of tolerance and can ask for against exclusion and compensation (liability for tort)

(二)insufficient of this designation

Firstly, the definition of Immission mainly combine summarize and example, however, it still can’t include all kinds of Immisons, such as the little animals and the substance which are not put under consideration.

Secondly, when we talk about duties of tolerance, three criteria are adopted, then, the biggest problem is whether the number can really show as a certain digit. To make it more detail, how to divide the extent of invasion? will it be difficult? On another hand, how can we work out the data? Although we propose referral to the local customs and the standard of rational persons, but it quite difficult to define who a rational person should be in this context. Though of there, Japan class the invasion according different location and different character, if we take this classification to the provision, how will performance be measured? At last, if we allow discretion to judge,how reliable will that be? What’s the disadvantage under this discretion and how to find the solutions? When we design the provision of protection, is it reasonable for the problem to get solved efficiently? Can we balance the interest between social and victim when the interference of invasion is significant, and conform to the local customs and inevitable; if victim has a duty of tolerance, does this stipulation protect victim comprehensively?


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