Keywords: adjacent norms/autonomy of will/mandatory norms/arbitrary norms

Abstract: In China's property law, mandatory clauses such as "no" and "should" are widely used to regulate the adjacent relationship. However, when reading the text of property law, we should not be completely confined to the original meaning of literal terms, but should specifically analyze their functions and properties in the property law system. Among them, the norm of "no" has the function of protecting basic human rights and facilitating the connection with public law, and should be a mandatory norm; However, the norm of "should" should have room for autonomy and free consultation of the parties to promote the best use of things, but the agreement between the parties does not have the effect of resisting the third party.

"Although the content of neighboring relations is mostly' not' or' should', there are still a few people whose nature really belongs to the behavior prohibition norm." —— Su [1]

First, the literal interpretation of the neighboring relationship norms in China's property law.

Law realizes its governance of society through various specific rules, while civil law regulates people's current behavior through various legal norms, and provides guidance and expectation for future behavior. For legal norms, we can classify them according to different standards. From the point of view of the extent to which the contents of legal norms restrict people's behavior, legal norms can be divided into mandatory norms and arbitrary norms. Mandatory norms mean "forcibly adjusting the legal relationship of the parties regardless of their intentions." [2] Arbitrary norms are legal norms that can be "excluded by the agreement of the parties to the transaction". [3] Generally speaking, civil law is a typical representative of private law, so there should be more arbitrary norms in civil law, allowing the autonomy of the parties in private law, such as contract law. However, the scope of civil law adjustment involves the interests of unspecified others, so civil law is not always composed of arbitrary norms. For example, there are many mandatory norms in the Property Law, because "property right is the right to directly control things, which is strongly exclusive and directly related to the interests of third parties and the security of transactions, and the parties cannot be allowed to freely create property rights through contracts." [4] In fact, property law has more mandatory norms, which also constitutes a major difference between property law and contract law. This compulsion of property law is also reflected in its norms about neighboring relations.

Chapter 7 of the title series of Property Law is a special chapter on adjacent relations, with 9 articles in total. In these nine articles, the word "no" appeared three times; The word "should" appeared eight times, seven of which were about the rules of exercising rights in adjacent relations; The word "can" only appears 1 time. According to the classification of legal norms usually taught by jurisprudence in China, mandatory norms are the code of conduct that parties must abide by, and their signs are the words "prohibition", "no", "should" and "must" in legal norms; The word "can" is a typical arbitrary normative term, and the parties can freely agree whether and how to apply it. Among the nine provisions of the Property Law on neighboring relations, the word "can" is used only when local customs can be applied if the laws and regulations do not deal with neighboring relations, while the specific rules on the exercise of neighboring relations in this chapter all use the words "can" and "should". Judging from the provisions of the property law, the neighboring relationship rule is a typical mandatory norm, and the parties have no room for free negotiation.

Second, analyze the norms of "no" and "should" in detail.

The reason why the neighboring right is stipulated as a legal right in the Property Law is that in real life, neighboring real estate "will affect the use of neighboring land or real estate more or less due to chemical or physical effects." If the affected real estate owner exercises the right to claim ownership preservation because his own ownership is often violated, it will definitely make the adjacent land in a useless predicament, so what if it is changed? "[5] In such a dispute-prone right boundary, the proper intervention of the law will force the parties to formulate a right boundary pillar, reducing a large number of disputes and lawsuits in daily trivial matters. Its legislative purpose is to promote social harmony on the whole, save social resources, and avoid people putting all their energy into unnecessary litigation, which will only increase the burden of litigation. "The question is, which neighboring relations are norms of behavior prohibition, and which are only norms of property right adjustment, and there is no intention to prohibit or force a certain behavior at all? "[6] Does the compulsory literal language of the neighboring relationship norms in the Property Law completely exclude the autonomy of the parties and free negotiation? As an important part of civil law, property law should not be completely divorced from the autonomy of the will of civil law. Therefore, when reading the text of property law, we should not be completely limited to the original meaning of literal terms, but should specifically analyze the functions and properties of these terms in the property law system.

The concrete analysis of 1. "No" specification

In the Property Law, the word "no" is used to regulate adjacent behaviors, all of which are concentrated in the three paragraphs from 89 to 9 1. Among them, the behaviors that are strongly prohibited can also be divided into three categories: the first category is that the construction of buildings violates the relevant national engineering construction standards and hinders the ventilation, lighting and sunshine of adjacent buildings; The second category is to abandon solid waste in violation of state regulations and discharge harmful substances such as air pollutants, water pollutants, noise, light and electromagnetic wave radiation; The third category is the behaviors that endanger the safety of adjacent real estate, such as digging holes and taking soil, building buildings, laying pipelines and installing equipment. From the content point of view, these three types of "prohibition" behaviors either infringe on the rights of neighboring obligees such as ventilation, lighting and sunshine, or endanger the physical and mental health of neighboring obligees, or endanger the personal and property safety of neighboring real estate obligees. Through the analysis of the contents of these three norms, I think it is justified and reasonable for the property law to adopt a "no" compulsory prohibition attitude here:

First, in order to protect basic human rights. In modern society, safeguarding human rights not only means safeguarding people's basic right to exist, but also means safeguarding people's right to live in dignity and health in their social environment as social subjects. If the building built by one party violates the relevant national engineering construction standards and hinders the ventilation, lighting and sunshine of adjacent buildings, it will undoubtedly deprive the adjacent real estate owners of their right to normal ventilation, lighting and sunshine. Sunshine and fresh air are indispensable for people's healthy life. "Ventilation, lighting and sunshine are not only the requirements of maintaining people's basic production and life, but also the minimum living conditions, which also involves the issue of personal dignity to some extent." [7] If the distance between adjacent buildings is too narrow and too high, which completely casts a shadow on the other party's house, the other party's obligee will have to live in a dark, humid and dreary environment all the year round. Even if one party gives the other a certain amount of economic compensation in exchange for consent, the law adopts mandatory provisions to prohibit and refuse one party to completely purchase the other party's basic human rights by means of economic compensation. Similarly, if one party engages in harmful activities such as pollutants, noise, electromagnetic radiation, etc. on his real estate, or rebuilds the house on a large scale, it may lead to the collapse of the house and put the other party's personal property in real danger. The law will not sit idly by and watch one party buy the other party's basic human rights, but make prohibitive provisions.

The second is to facilitate the connection with public law. Things, especially real estate, are not only the object of individual rights, but also have close interests with others and the public. The concept of absolute unrestricted ownership is out of date, and the ownership in modern society is subject to many restrictions on social welfare. For example, the property of the obligee should not only obey the government's urban and rural planning, but also obey the government's requirements for housing quality, fire protection and environmental protection. Therefore, in the modern society where the government actively intervenes in social and economic life, even the civil law in the field of private law will inevitably leave traces of state intervention in citizens' lives, which is inevitable and necessary. Therefore, civil law must pay attention to the connection with relevant public law and management norms, that is, civil law must be able to "accommodate public law", [8] to coordinate the relationship between civil law and other legal departments and maintain a benign society. These three norms of property law are convenient to connect with relevant public laws. These norms are the expression of public law intervening in private law, and there are corresponding public law norms behind them.

Specifically, these three specifications relate to national standards for engineering construction, regulations on solid waste treatment, discharge of various pollutants and other harmful substances, and relevant standards for building and building safety. The public law norms closely related to these norms include the Urban and Rural Planning Law, the Environmental Protection Law, the Construction Law, the Regulations on the Quality Management of Construction Projects, and the Law on the Prevention and Control of Environmental Noise Pollution. The existence of these three norms in the property law leaves an interface and space for these public norms to intervene in private law and participate in the management of the obligee's exercise of real estate rights. Moreover, the revision of these separate laws and regulations, as a part of the future civil code, is much easier than the property law, and can be revised in time according to the changes of the city appearance and times, without frequently revising the civil code with the nature of the fundamental law of private law, so as to maintain the stability of the civil code.

2. The concrete analysis of "should" specification

The stipulation of "should" in the Property Law is mainly about the use of other people's real estate for water use, drainage, transportation and pipeline laying between neighboring people. These contents are necessary but not necessary for the convenience of life, and do not involve basic human rights such as sunshine, lighting and ventilation. Literally, the word "should" has the meaning of mandatory requirements in law. However, the adjacent relationship is of course a necessary extension to protect the exercise of their respective rights between adjacent real estate owners, so as to ensure the complete exercise of ownership. However, the exercise of rights is, after all, the personal behavior of civil subjects, which belongs to the category of autonomy of will in private law. Why does the law not allow the parties to negotiate freely? For example, the second paragraph of Article 86 of the Property Law stipulates: "The utilization of natural living water shall be reasonably distributed among the adjacent owners of real estate. The discharge of natural running water should respect the natural flow direction. " Therefore, if A and B are two families along the same river, and A is upstream of B, the natural flow of the river should be respected according to the property law. However, if Party A wants to build a small dam upstream of Party B to raise fish and shrimp, and Party A is willing to pay a certain amount of money compensation for the adverse consequences of reduced water flow suffered by Party B, Party B fully agrees with this, and the life of others will not be affected after the implementation of this behavior. Then the behavior of both parties did not respect the natural flow of natural water discharge, but changed in the form of artificial agreement. At this point, both parties violated the mandatory provisions made in the form of "should" in the Property Law. How effective are their actions?

One of the differences between adjacent relationship and easement is the relationship between law and agreement, but why is there such a difference? In my opinion, the reason is that neighboring right (neighboring relationship) is a necessary extension of ownership, so the exercise of ownership often has to involve neighboring relationship. For a right that is needed for daily use and costs a lot for the parties to negotiate on their own, the law comes forward to define it at the minimum. Using the authority of the law to enforce legal rules between the parties can save a lot of high-cost negotiation costs between the parties, which is also one of the social functions of the law, that is, the law saves costs for the society. "Land is adjacent to each other, and the exercise of their rights influences each other. If all owners have the right to use, benefit and dispose of their own property freely, and exclude the interference of others, conflicts will inevitably arise. Therefore, it must be regulated within a certain range to ensure the full use of land and the maintenance of social life. " [9] However, the law is rule-based, universal, focusing on the universal justice of society, and it is inevitable to feel uncomfortable about individual justice. Since the purpose of adjacent relationship is to ensure that both parties can normally use their own real estate according to their own wishes, the legal adjustment of adjacent relationship should be based on the consent of both parties. As long as the two parties reach an agreement on the use of adjacent real estate, and the agreement does not violate the basic principles of civil law, the legal purpose has been achieved and the parties can be allowed to autonomy. Therefore, it should be understood as "not allowed", which means that it does not have this power in principle, rather than its behavior is not allowed by the legal order; In principle, "should" only refers to the obligation or benefit distribution with the adjacent land, not a certain behavioral obligation imposed by the legal order. " [ 10]

Therefore, even if the agreement between the two parties changes the provisions made in the form of "should" in the adjacent relationship of the Property Law, as long as this agreement does not violate the basic principles of civil law such as public order and good customs, honesty and credit, then this agreement is effective between the parties, and the law should respect this agreement of the parties. In the above example, two households, A and B, voluntarily agreed to change the natural flow direction of the river and use it. This agreement should be valid. A can make full use of the water flow according to the agreement and pay the price to B..

In fact, it has been clearly pointed out in the chapter on neighboring relations in the Property Law that the purpose and principle of legal adjustment of neighboring relations are "beneficial to production, convenient to life, solidarity and mutual assistance, fair and reasonable", and some specific rules in the Property Law also imply the meaning of respecting the wishes of the parties. Take the second paragraph of Article 86 as an example. The first paragraph of this paragraph stipulates: "The utilization of natural living water should be reasonably distributed among the adjacent owners of real estate." Since it is a reasonable distribution, it is difficult to have a unified objective standard for reasonable standards. Whether it is reasonable or not depends mainly on the psychological feelings of both sides. In the above example, if Party A changes the natural flow direction of water and uses it, and at the same time pays a certain compensation fee to Party B, and Party B agrees, then the use of natural water should be reasonably distributed among neighboring parties, and Party A will use more water and Party B will get extra money compensation.

Third, there should be room for the autonomy of the parties in the regulation of adjacent relations.

1. The norm of "should" should allow the autonomy of the parties.

"The purpose of the neighboring relationship in civil law is to regulate the mutual use of land by neighboring real estate owners, so as to maintain the peaceful coexistence of neighboring people." [1 1] Today, with the infiltration of public law into private law, the neighboring relationship norms include not only various provisions made by law for the peaceful coexistence between neighboring obligees, but also some provisions made from the perspective of social management of real estate, so the neighboring relationship norms should be treated differently according to their contents.

As for the three clauses of "no", because they involve the basic human rights of real estate owners, they cannot be abandoned or changed, so they are really mandatory norms, and both parties may not agree to change them on their own. If both parties agree to change these regulations on their own, for example, one party can engage in activities that make a lot of noise in his own home, and the other party agrees to this harmful behavior and accepts financial compensation. Then this agreement violates the mandatory provisions of the Property Law and the Law on the Prevention and Control of Environmental Noise Pollution, and one party's behavior of making noise will be investigated, fined and ordered to stop by the Environmental Protection Bureau. At the same time, this agreement between the two parties is invalid, and one party may not continue to make trouble according to this agreement, while the monetary compensation received by the other party belongs to unjust enrichment and should be returned according to the provisions of Article 58 of the Contract Law, which cannot be returned or is unnecessary. The party at fault shall compensate the other party for the losses suffered as a result. If both parties are at fault, they shall bear their respective responsibilities.

As for the neighboring relations defined as "should" in the Property Law, it mainly refers to matters that need to use land, such as water use, drainage, traffic, building and repairing buildings, laying wires, cables, water pipes, heating and gas pipelines. These matters belong to the right that the real estate owner must have to use his own real estate, otherwise his real estate right is incomplete. However, under the premise of not violating the basic values of civil law such as fairness, justice, public order and good customs, the parties should be allowed to negotiate freely. Both parties can fully and freely negotiate on the way of exercising their respective rights, compensation standards, time limit, etc. In the adjacent relationship. Of course, real estate owners can give up these rights corresponding to "should" without exercising these rights. [12] There is room for both parties to negotiate freely.

2. Allowing party autonomy can promote the best use of things.

Allowing the parties to exercise autonomy of will over most of the rules of conduct in neighboring relations not only carries forward and implements the idea of autonomy of will as the core concept of civil law, but also has the function of promoting the best use of things and paying attention to economic efficiency and rationality in today's increasingly tight and scarce real estate resources. This is "the reason for the existence of adjacent real estate system in civil law, … its main purpose is no longer to reconcile the interests of individual ownership, but to promote the social interests of making the best use of everything." [ 13]

Marketization is the best way to optimize the allocation of resources at the macro level, while at the micro level, the parties are allowed to negotiate freely in the way of exercising the rules of neighboring relations, instead of being forced by law, so that more rights can be allocated to the party who needs them most, and at the same time, the other party can be compensated effectively, thus optimizing the allocation of rights and property rights with the consent of both parties. This is also one of the ways of market-oriented allocation of resources between specific civil subjects. "The role of most neighboring clauses in the Civil Law is only to avoid special land conditions and increase transaction costs, rather than prohibiting transactions." [14] Because the parties themselves are more aware of their respective needs, benefits and costs, the unified provisions of the law are not as effective as those negotiated by the parties, so it is best to allow the parties to negotiate. Most of the provisions of the Property Law on adjacent relations only set a basic model for the parties to define property rights. On the premise of observing the basic principles of civil law, both parties can freely play games and negotiate on an equal footing, and seek the maximization of their own interests on the basis of mutual consent. The stipulation of "should" in the Property Law "only enables the civil subject with specific interests to obtain the bargaining capital with other civil subjects, so that it can get the corresponding consideration when giving up the rights conferred by law. Such norms are not so-called mandatory norms. " [15] Therefore, according to their own needs, the parties have autonomy in matters such as the location of roads, the mode of transportation or the route of pipeline laying, and reach an agreement on the exercise of their rights between each other's real estate. Their actions are effective and realize the function of promoting the best use of things in the property law.

The agreement between the two parties has no effect on the third party.

Naturally, it should be considered effective for the parties to sign a contract freely on the specific exercise and performance of rights and obligations in the adjacent relationship, but this internal agreement between the two parties cannot be against the third party. "Neighborhood regulation is mainly to adjust the conflict of private rights between neighboring parties ... the parties can still conclude different agreements or give up, but this agreement only has the effect of debt, stipulating that the parties should be bound by it. For example, a third party who is not a party may claim that the transferee of the adjacent right-of-way land is not bound. " [ 16]

The reason is that the agreement between the two parties only has the effect of debt, and the effect of debt is relative, which can only bind both parties to the contract, but not others. At the same time, the agreement between the two sides is not public, and it is difficult for others to know. Even knowing it, the third party did not participate in the conclusion of the contract, and is not a party to the contract, so it is naturally not bound by the validity of the contract. Therefore, the third party does not need goodwill, and is not bound by the agreement between adjacent real estate rights holders regardless of whether they know the agreement and its contents. For example, two neighboring households have an agreement on traffic problems, allowing the party who often comes home late to drive through the other party's yard every night and give the other party some compensation every month. Even if the third party knows the existence and specific content of the agreement, it will not be bound by the agreement when it becomes the buyer of one party's real estate, unless there is a special agreement.

The agreement between the two parties has no effect on the third party, which mainly applies to the situation that the third party becomes the buyer of one of the real estate rights. When one party sells its real estate, the buyer is not bound by the contract even if it is not due to the neighboring real estate obligee. The buyer should still advocate different ways to exercise the neighboring relationship to the neighboring parties according to the provisions and specific circumstances of the property law. The exception is that when the buyer buys real estate, as part of the terms of the purchase contract, he agrees to accept the contract of adjacent relationship together, or agrees to continue to accept such an agreement alone. Then the buyer voluntarily becomes a party to the contract, and the contract will naturally take effect for him, and the previously agreed form of adjacent relationship will continue.

Four. conclusion

After all, the provisions on neighboring relations in the property law belong to the norms of adjusting the interests of private parties. Except for a few administrative regulations of public relations nature, most of the norms should belong to arbitrary norms or advocacy norms that only play a guiding role. Neighborhood relation norms "involve public welfare, but most of them are indirect, so the parties should be given autonomy in private law." [17] In the legislative process of China's property law, the two major drafts of experts and scholars actually adopted more arbitrary norms in the content of neighboring relations norms. On the basis of setting the basic behavior pattern for the parties, both parties are often allowed to negotiate on the exercise of specific rights. The clauses that appear many times in the chapter of adjacent relations are "right of claim" and "right of claim" [6606]. However, the provisions of the chapter of adjacent relations in the Property Law promulgated by the legislature are full of mandatory normative words such as "shall not" and "should", which are almost .10000.0000000000006 If the property law is to be well implemented and observed in real life, it should not be limited to the literal meaning and wording of the property law, because the unscientific and imprecise wording of the legislature will lead to difficulties and evasion in the implementation of the law in reality. Starting from the core values and basic principles of the property law and the effectiveness of legal acts, we should analyze the nature of the norms of neighboring relations and distinguish the real normative effectiveness of the words "shall not" and "shall" used in this chapter. When explaining the validity of the agreement between adjacent parties on the adjacent relationship, we should carefully distinguish whether such agreement violates the above three norms of public law management. If not, both parties should be allowed to be in the "should" legal mode.

Precautions:

[References]

[1] [6] [10] [14] Su. Economic Rationality in Private Law Autonomy [M]. Beijing: Renmin University of China Press, 2004+0, 26438+09, 26438+09.

[2] Xie Hongfei. On effective "legal norms" —— The influence of public law on the effectiveness of legal acts and its limits [J]. China Social Sciences, 2007, (6).

[3] Wang Yi. Arbitrary norms of property law and its application [J]. Law Application, 2007, (5).

Wang Liming. Research on Property Law (Revised Edition) (Volume I) [M], Beijing: Renmin University of China Press, 2007.163,657,667.

[5][ 16] Xie Zaiquan. On Property Rights in Civil Law (Volume I) (Revised Second Edition) [M], Taiwan Province Province: 2003 (28929 1).

[8] Sue. Integration of civil legislation and public and private laws [M], Beijing: Renmin University of China Press, 2004.56.

Wang Zejian. Civil Law Property Rights Volume I: General Principles and Ownership [M], Beijing: China University of Political Science and Law Press, 2001.210,212.

Rong-zong Chan. Necessary right of way of adjacent land [a]. Edited by Zheng Yubo. Essays on Civil Law Property Rights (I) [C]. Taipei: Taiwan Province Wu Nan Book Publishing Co., Ltd., 1985.222.

[15] Wang Yi. Normative Design of Property Law [J]. Law and Business Research, 2002, (5).

See Wang Liming. Chinese Civil Code Scholars' Proposals and Legislative Reasons: Articles, Legislative Reasons and Reference Legislation (Part of Real Right) [M], Beijing: Law Press, 2005+09-234.

See Liang Huixing. Suggestions on the Draft Property Law of China: Provisions, Interpretation, Reasons and Reference Legislation [M], Beijing: Social Science Literature Publishing House, 2000+08-363.