RESEARCH CONCERNING RELATION BETWEEN OWNERSHIP OF PRIVATE WAY AND LIFEINTERESTS OF INHABITANTS.

1998 Fiscal Year Final Research Report Summary

• Project/Area Number: 09620031
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Civil law
• Research Institution: NIIGATA UNIVERSITY
• Principal Investigator: SEKI Takeshi FACULTY OF LAW NIIGATA UNIVERSITY PROFESSOR, 法学部, 教授 (30187835)
• Project Period (FY): 1997 – 1998
• Keywords: PRIVATE WAY / OWERSHIP OF LAND / DISINHERITANCE OF DISTURBANCE

Research Abstract

Private ways which are controled in a law(=Kenchikukijun-ho) are very different from the other ones. Though man can use such ways for a walk or drive, he has no private passage-right and only reflexive effect resulting from this legal various controls. When the ownership of a private way does not observe a legal control, inhabitants along the way are able to claim against relative government agency in oder to set that way right. However, this agency is not aliways obliged to obey their claim.
The aim of my research was how to protect such inhaitants. I discovered German judgements and literatures in which their disinheritance-demand of disturbance or demand for damages against the ownership of private way was recognized. These have considered that inhabitants should be given such demands suppoted by neighborhood-law (Immissionsgesetz). Then legal explanations by recent literatures understand that legal controls have not only publical but also private character and this character is based by community-theory.
It's difficult to recognize this theory in applications of the Japanese Civil Code. In addition, we don' t have such a law as the German Immissionsgesetz. However, inhabitants' disinheri tance-demand should be recognised, because I understand that inhabitants' life-interests must be protected as far as their safety and health are able to be acquired.