| The Property Law of China provides for the first time expressly the denied or defensive claim right (negatorische Ansprüche), and recognizes that, it is the effect of the property right and has the function of prevention. At the same time, according to the General Rules of Civil Law of China, there is also preventive claim right in tort law, which is in line with the defensive claim right in Germany. In German law system, the creation of the defensive claim right in tort law brings about the general trend of the defensive claim right. On the ground of §1004 of the German Civil Code (BGB) as well as other relevant rules, some scholars have abstracted the basic principles of preventive right protection (vorbeugender Rechtsschutz). That is to say, rights should be protected not only when they have been damaged, but also when they are being or to be damaged. The result of such development is that, whether the actor has fault or not can not be a distinction standard of the defensive claim right in property law and obligation law. The key point of distinction between them is their different legal effects, i.e., whether the actor should abate nuisance or should compensate damages. In Germany, it’s generally held that, nuisance is some sustained obstacle which one should be responsible for, and damage is the non-sustained obstacle. There are also different opinions about this problem, and the author of this paper approves the theory of risk allocation. According to this theory, the cost to remove the nuisance should generally be assigned to person who has caused such nuisance. A person should be responsible for the nuisance if his act or property has caused the nuisance. As far as the element of illegality is concerned, there are significant differences of the defensive claim right in property law and tort law. Compared to the damage compensation law system, the nuisance abatement law has not been systematic yet. So the defensive claim right in property law can refer to certain rules of the obligation law, e.g. the rules of the common fault, and so on. The idea of preventive right protection and the distinction between compensation for damage and abatement of nuisance, however, are very significant for the maintenance of self-government system of property right, as well as for the establishment of tort law system. Key words: property claim right, the denied claim right, abatement of nuisance, prevention of nuisance, compensation for damage |
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