德国公法相邻关系制度初论

The Adjoining Relation System in German Public Law

在现代社会,仅仅依靠民法相邻关系制度不能完全解决相邻不动产空间规整及邻人利益保护问题,于是出现了公法相邻关系制度。公法相邻关系法与民法相邻关系法尽管各自规范的对象和目的不同,但二者在功能上具有很强的互补关系。公法相邻关系法与民法相邻关系法以不同方式实现对邻人利益的保护,但这两种不同保护方式也会不可避免地发生冲突。我国现行法对公法相邻关系作了一般性规定,有必要在相关的具体法律中进一步充实和完善;公法相邻关系法与私法相邻关系法之间的冲突首先应通过立法方式加以解决。在缺乏规定时,应放弃司法实践中所采用的公法优位说,借鉴德国的双轨制说。

In modern society, the civil law adjoining relationship can not solve all problems relating to the regulation of space standard of adjoining real estates and protection of neighbors＇ interests. As a result,public law adjoining relationship comes into existence. Although civil law and public law systems of adjoining relationship have different objects and purposes, they functionally complement each other. Both of them provide protection for neighbors＇ interests by different means. The differences, however, lead inevitably to conflicts. The present law in China has set forth the general provisions relating to public law adjoining relationship. Detailed elaboration and further improvement are needed in relevant laws. The conflicts between the public law and civil law adjoining relationships should be addressed as much as possible through legislation. In cases where there is no applicable provision, the approach of giving priority to public law in judicial practices should be abandoned and the German theory of dual system should be adopted.