Sunshine standard refers to the amount of sunshine obtained by the room facing the sun in the front of the residential building on the specified sunshine standard day, which is determined according to the climatic conditions and living hygiene requirements of each region? What is the minimum standard in China? Residential spacing should ensure that the sunny window at the bottom of the sheltered residential building has at least 1 hour sunshine time from the severe cold to the winter solstice, which is the main basis for determining the spacing of residential buildings when making residential district planning. The so-called lighting right usually means that the owner or user of the house has the right to get moderate light from the outside, which is greater than the sunshine range without relevant legal provisions? At present, the neighboring rights of General Principles of Civil Law and Code for Planning and Design of Urban Residential Areas are the main body.
In recent years, disputes about the right to light have emerged endlessly in China's judicial practice, and there are more and more cases demanding the right to light, and disputes about the right to light between urban and rural neighborhoods have occurred from time to time. On the one hand, it reflects that people pay more and more attention to the quality of life, but on the other hand, it also shows that legal policies do not pay enough attention to the issue of light use rights, and the corresponding laws and regulations are not sound enough.
Wei Yanan, a judge of Beijing Fengtai Court, strongly appealed to improve the legislation of lighting right as soon as possible from years of trial practice.
In recent years, due to the scarcity of land resources, the building density has increased, and with the development of urbanization, the construction scale of high-rise and even super-high-rise buildings has been expanding. Shading has seriously affected the normal life of some residents, resulting in more and more disputes and lawsuits for sheltered residents to safeguard their lighting rights. This gives us a new problem-how to effectively protect the residents' right to use light.
Sunlight is priceless, and lighting is precious.
On the premise of discussing how to protect the residents' right to light, we should first look at the provisions of our laws on the right to light. China's laws have extremely limited provisions on the right to light: First, Article 19 of the Constitution stipulates that "the houses of China people and citizens shall be inviolable"; Second, Article 83 of the General Principles of the Civil Law stipulates that "the neighboring parties of real estate shall correctly handle the neighboring relations in terms of water interception, drainage, ventilation, transportation and lighting in accordance with the spirit of convenient production, convenient life, solidarity and mutual assistance, and fairness and reasonableness. If losses are caused to the neighboring parties, the infringement shall be stopped, the obstruction shall be removed and the losses shall be compensated. "
Because the above-mentioned laws are too general and lack specific substantive content, in practice, there are no clear provisions on whether the right to light has violated the judgment standard of neighboring rights, whether the right to light should be compensated, how to compensate, and what standard to compensate, which brings great difficulties to judicial practice and makes the legitimate rights and interests of the parties unable to be effectively protected.
When it comes to the protection of lighting rights, we must first clarify the "determination of lighting infringement". In judicial practice, residents are prone to fall into a misunderstanding when claiming the right to light, that is, they think that as long as the new building blocks the lighting of the room and shortens the time for the room to enjoy the sunshine, it constitutes infringement. Regarding the compensation standard for infringement of lighting rights, the amount of compensation demanded by lighting rights holders is also considered from the following aspects: First, the physical and mental harm caused by limited lighting conditions is considered; The second is to consider the cost of increasing heating, ventilation, lighting and other conditions during the use of houses in the next few years; Third, consider the cost of obtaining lighting rights. Although sunlight is priceless, under the condition of market economy, getting good lighting conditions requires a price.
However, this is not the case in actual trials.
There are different standards about how to compensate.
Article 13 of Chapter 4 "Shading Treatment of Existing Residential Buildings" of the Interim Provisions on Residential Building Spacing in Beijing stipulates that if the newly-built buildings approved by the competent department of urban planning administration block the sunshine of existing residential buildings, the construction unit (including individual houses) shall take the initiative to deal with it according to the following provisions: the existing residential buildings with sunshine time less than 1 hour from winter to day, and the newly-built buildings with twice the height outside the horizontal distance between illegal buildings and residential houses will not be compensated.
Therefore, according to the existing laws and regulations, as long as the distance between the developer's Gai Lou and residential buildings reaches the minimum limit stipulated by law-1 8m, and the sunshine time of residential buildings exceeds1hour from winter to morning, even if the newly-built buildings according to the current regulations affect the lighting rights of residents, they do not have to bear the corresponding compensation obligation because the building spacing meets the prescribed standards. In other words, if the new building blocks the sunshine of the existing house on the premise of meeting the requirements, it is a "legal block", so it will be difficult for residents to win the lawsuit on the grounds that the lighting right is infringed. If, after professional sunshine surveying and mapping, the minimum sunshine time of the building does not meet the requirements of the Code for Planning and Design of Urban Residential Areas, residents have great hope of winning the case.
However, a lawsuit must be filed as soon as possible, because once the building is built, even if the planning department loses the case in the administrative lawsuit, the court will generally not decide to demolish the building for the benefit of society, but solve it in the form of compensation, so that the lighting problem of residents cannot be substantially solved.
However, what needs to be added is that, in the case of legal shelter, according to the provisions of Chapter IV of the Interim Provisions on the Spacing between Residential Buildings in Beijing, "existing residents who are sheltered by newly built or expanded buildings, resulting in insufficient sunshine time from winter solstice 1 hour, enjoy one-time economic compensation". This kind of compensation is generally around 2000 yuan. That is to say, although it is legally blocked, considering that the new building has a great impact on the original living conditions of residents, this impact has brought certain damage to residents. In order to make up for the damage to residents, this compensation method is put forward in combination with the actual situation in Beijing. However, if it is a residential community built in the same period, even if the sunshine time of the whole window is less than 1 hour from winter to day, there is no economic compensation.
In addition, judging from the current judicial practice and existing laws and regulations, there are two problems in the amount of damages for lighting rights: first, due to the lack of relatively unified law enforcement standards and applicable standards for compensation, the standards for handling compensation cases for infringement of lighting rights vary from place to place, and most of them depend on the discretion of judges; Second, the amount is too small to reflect the value of the right to light. Therefore, the author thinks that a perfect compensation standard should be established to deal with the housing asylum problem from the perspective of economics.
Expect lighting rules
In order to improve the legislation of lighting right, we must first make clear the reasons for the infringement of lighting right.
The current view is generally understood as the result of the new building blocking the original building. Then, whether the new building meets the planning approval has become the first controversial focus. First of all, assume that the new building is within the scope of planning approval. That is to say, subjectively, the planning department anticipated the existence of this kind of occlusion in the early stage of planning approval, and admitted the inevitability of the infringement of lighting rights from the beginning, which is also a typical "knowing" behavior. This subjective "intention" directly leads to the occurrence of infringement results, and it is impossible to "restore the original state and eliminate obstacles." The infringement of this right is naked helplessness to the infringed. Another kind of violation is the violation caused by illegal operation and illegal construction under the premise of not meeting the planning approval. This is a more direct and serious phenomenon of "knowingly committing crimes". The fundamental difference between it and the former one is that the infringer is the actor who directly commits the infringement. This kind of infringement is difficult to "restore the original state and remove obstacles" in judicial practice, and generally it is only the minimum compensation, which greatly damages the principle of fairness and cannot safeguard the justice and fairness of the law.
Secondly, it is necessary to make clear the direct economic consequences caused by infringement of lighting rights. In reality, there is an obvious economic gap before and after the house is blocked, especially when the new building blocks the original building, which makes the economic value of the original building change greatly. For example, if a sheltered owner buys a house, the price per square meter is about 500 higher than that of a house in the same geographical location, which means that the advantage of lighting is about 500 yuan per square meter to 800 yuan. However, due to the emergence of new buildings, houses have lost the advantage of lighting, which makes the value of houses drop significantly. In this way, the current compensation standard has no economic basis for existence. In other words, 800 yuan's one-time compensation standard of 2,000 yuan has no economic basis for its existence.
To sum up, the author mainly calls for legislative perfection of lighting right from the following aspects:
First of all, "lighting right" should be embodied in legislation as an independent personal right. Lighting right should not only be embodied as real right, but also be summarized as the category of personal right to some extent. Lighting right is a right closely related to human life and health, and it is the right for people to fully need sunlight indoors. The right to light is not given by anyone, but an inherent and necessary right of human beings. The value of lighting right to human life and health cannot be measured by simple figures and economy.
Secondly, as far as the infringement of lighting right is concerned, as long as the shading of new buildings and facilities shortens the lighting time of the original buildings, it will infringe the rights of the owners of the original buildings and the infringement should be established. As for whether the new building is legal or illegal, and whether it meets the requirements of building spacing, it should not be the standard for determining civil tort.
Thirdly, a simple and reasonable standard can be established for the amount of compensation for infringement of lighting rights, that is, the difference between the value of the house after the infringement of lighting rights and the value of the house before the infringement can be used as the compensation standard.
Fourth, strengthen the functions of government administrative departments, and fundamentally put an end to violations of lighting rights. Under the condition of market economy, people's judgment of value tends to be "market-oriented". As a right directly related to life and health, once it is infringed, it is a long-term matter, and short-term small compensation cannot recover the losses caused. Therefore, we should avoid infringement in the early stage. This requires the dual attention of the planning department and the construction department!
In a word, with the increasing number of cases of lighting rights, the embarrassing problem faced by legal vacancies is becoming more and more prominent. Today, people pay more and more attention to the quality of life, and the author strongly appeals to improve the legislation of lighting rights as soon as possible to better safeguard the legitimate rights and interests of lighting rights holders.
Lighting right: usually refers to the right of the owner or user of the house to obtain direct, moderate and timely sunshine from the outside. At present, the infringement of lighting right is manifested in that the high-rise buildings or other facilities in the neighboring countries do not keep a proper distance from the neighboring countries, and even under the premise of keeping a proper distance, indoor lighting of the residents in the neighboring countries still occurs, resulting in insufficient lighting.