중국민법상 금지청구권에 대한 소고

Abstract

Chinese Civil Code that was enforced in 2021 prescribes injunction aimed at real rights in Article 236 of the Part of Real Rights based on Article 35 of the repealed Chinese Property Law, and prescribes injunction aimed at torts in Article 1167 of the Part of Torts in accordance with Article 21 of the repealed Chinese Tort Law, meanwhile injunction aimed at personality rights has been prescribed in Article 995 of the Part of Personality Rights. In addition, Article 179 of the Chinese Civil Code which is about the methods of civil liability stipulates ‘cessation of obstruction’, ‘removal of obstruction’, and ‘risk elimination’ as one of the methods of civil liability in Paragraphs 1, 2 and 3, therefore Chinese Civil Code legislated injunctions as right to claim for cessation of obstruction, right to claim for removal of obstruction, right to claim risk elimination.
 Accordingly, in this paper we introduce and examine injunction aimed at real rights, injunction aimed at personality rights and injunction aimed at torts recognized under Chinese Civil Law, and introduce the situation of discussions in China on the interrelationship of the three injunctions in detail. Besides in Chinese Civil law whether rights to injunctions is subject to extinctive prescription, the legal principles of restricting injunctions and discussions in China between injunctions and preservation litigation are also introduced in this paper.
 The legislation of injunctions aimed at real rights, personal rights and torts in Chinese civil law can be said to be a legislative attitude with few legislative examples in other countries. In addition, clarifying the relationship and application of injunctions under Articles 236, 995, and 1167 of the Chinese Civil Code is a task to be resolved in the future.
 Recently, Korean Ministry of Justice proposed to legislate injunction aimed at personal rights as an amendment of Korean Civil Code, in the meantime there have been several discussions on the revision of injunctions due to the revision of the Korean Civil Law. Legislative discussions on the rights to injunction in Korea are expected to continue in the future, and when discussing it legislation on the rights to injunction in Chinese civil law can be considered to be an important legislative reference.