The four words that came to Machiko's mind were "explanation by analogy".
[Explanation by analogy]
[The so-called "interpretation by analogy" is a method of legal interpretation. That is, when there is a gap in the legal provisions, a certain provision can be applied by analogy. Among different legal departments, civil law often allows application by analogy. And criminal law is based on strict
The principle of legality of crime and punishment strictly prohibits the application of analogies, but in some cases, analogical explanations that are beneficial to the defendant are not prohibited]
Machiko seemed to have grasped a life-saving straw, as if she had obtained a precious lifebuoy on the stormy sea. In an instant, this beauty was energized again, and she immediately raised her head and said: "Chief referee, we don't need a back-up."
If you have additional written comments, you can respond immediately."
Machiko stood up from behind the plaintiff's table, "The Civil Code provision cited by the other party just now stipulates that the owner of the right of way to neighboring land is the land owner. However, this provision does not expressly exclude other real estate rights holders from enjoying the right of way.
Right of way through neighboring land. Here, it should be considered that the law does not provide for whether other real estate rights holders enjoy the right of way through neighboring land."
"In other words, there is a legal gap here."
"When there is a gap in the law, we should adopt the principle of analogy and application to explain." Machiko looked at Miyagawa opposite, her eyes became sharp, and she heard her voice say: "Aoba Dai in this case
Although the apartment owners are not the owners of the real estate involved in the case, they are the occupants and users of the real estate involved in the case. That is, they have the right to possess and use the land involved in the case."
"Therefore, the key question here is whether the land use right holder or the land occupier should also be able to claim the right of access to neighboring land like the land owner?"
As Machiko spoke, she became a little more sincere. There seemed to be a secret look in her eyes, which made people feel pitiful. "Chief judge, please consider, if we deny the land use right holder to exercise the right of access to neighboring land,
, what kind of effect will it have in the end?”
"Suppose a tenant rents a house from the landlord and signs a long-term lease. As a result, the same situation occurs as in this case. Construction around the house is blocked. And the landlord fails to file a lawsuit on the neighbor's right of way. Then there is no doubt that
, the tenant will lose the means of relief. This is unfair to the users of the real estate.”
"Chief Judge. The original purpose of the right of way on neighboring land is to coordinate conflicts in the use of adjacent land. The owner of the land is not necessarily the actual user. If you are not the actual user of the land and can still file a lawsuit on the right of way on neighboring land, then
The actual user of the land is more qualified to file a right-of-way lawsuit!"
“Therefore, although the Civil Code currently only stipulates the land owner’s right of access to adjacent land, according to the analogy of this article, land users, occupiers, lessors, etc., should all be qualified to claim the right of access to adjacent land.
.Therefore, the other party denies our qualification to file a lawsuit on the grounds that the owner of Aoba Terrace Apartment is not the owner. This reason is absurd!"
A complete discussion was made to refute Miyagawa's reply just now.
After finishing these words, Machiko's highly nervous heart suddenly calmed down a lot. He really underestimated his opponent this time. Unexpectedly, at the beginning of the trial, he was almost restrained by the opponent. But fortunately, he
She reacted on the spot, otherwise the consequences would be really unimaginable. Then, she let out a small breath, walked back to the plaintiff's bench, and sat down.
Gu Meimen swung his chair, and when he saw Machiko coming back, he lost no time in speaking venomously: "Your reaction is really too slow, Dai. You should have been able to say it right away!"
"Ha!!!" Machiko replied angrily, "Lawyer Gu Meimen, you haven't read the case file carefully from beginning to end. I don't believe you can react so quickly."
Miyagawa frowned slightly when she heard Machiko's reply just now. She didn't expect that the other party would refute from the perspective of applicable analogies.
I thought it was a reply that could choke the other party, but it seemed to be resolved by the other party.
Miyagawa lowered his head and thought for a moment, then stood up again, "Chief referee, the other party's analogy just now is not appropriate. The right of passage of neighboring land is a kind of burden imposed on neighboring land. In other words, it is an adverse impact.
.It arises based on the special provisions of the law, and is not a legal relationship arising from the agreement of the two parties. The right of passage in neighboring lands arises from the special provisions of the law, rather than the agreement of the parties, and is inconsistent with general civil rights.
, obviously different.”
"Therefore, no analogy can be applied to the right of way on neighboring land. As a special burden imposed on neighboring real estate, it can only be exercised strictly in accordance with the law and only the land owner. If it is applied by arbitrary analogy, it means that the real estate is not related to the right of way.
The adverse burden on neighbors will be greatly increased."
Machiko, who had just returned to her seat, saw that Miyagawa retorted again in less than a moment, and her beautiful eyes couldn't help but widen.
This lawyer named Miyagawa is really difficult to deal with.
I didn't expect to be pressed so hard at the beginning of the trial.
Perhaps due to the similar backgrounds of Machiko and Miyagawa, the two people are actually similar in some aspects of their hearts. In front of similar people, the unwillingness to admit defeat was suddenly aroused again.
In fact, during the court session, Machiko secretly paid attention to lawyer Miyagawa's legs.
I was scolded by Gu Meimen all day long for having bow legs, so I couldn't help but secretly become concerned about the shape of my legs. When I saw the straight and graceful leg curves of the female lawyer opposite me, I couldn't help but feel envious.
The secret comparison among women, coupled with the unwillingness to admit defeat, couldn't help but stimulate Machiko's fighting spirit.
"Chief Judge!" Machiko immediately stood up again, "Where there are gaps in civil law provisions, analogical interpretations can be applied, and there is no legal obstacle. Even many special systems in civil law, such as the clause on acquiring ownership in good faith, can also be applied by analogy.
Mortgage rights and pledge rights are obtained in good faith. There are no types of rights arising from the so-called special provisions of the law as lawyer Fang Cai said, so the principle of interpretation by analogy cannot be applied."
"In addition, the fundamental purpose of establishing the right of way through adjacent land is to solve the problem of baggage access. It is for practical benefits and to solve practical problems. At present, there is indeed a baggage problem in this case, which is undeniable."
Machiko took out a portfolio and shook it.
Many photos suddenly slipped out of the file bag. However, I saw that these photos were about the construction site outside the Aoba Terrace Apartment. At the site in the photo, a ferocious and wide ravine cut off three directions of the apartment. The site
There are large cranes everywhere, and drilling rigs are constantly working, stirring up bursts of dust. Not to mention whether a road can be opened at the construction site, even if it is opened, it will be extremely dangerous.
Machiko presented these photos to the trial, and then said: "Chief Judge, residents in the community currently have serious difficulties in passing. If things continue like this, it will inevitably be unsustainable. Here, the plaintiff's attorney requests the court to apply the Civil Code's relevant rights of passage to neighboring lands by analogy.
The provisions of the "Aoba Terrace Apartment Owners' Association" have been extended to apply to land occupiers. In this case, the Aoba Terrace Apartment Owners Committee is indeed qualified to file a lawsuit on neighboring land rights of way."
Machiko's voice fell.
For a moment, the two sides seemed to have reached an extremely tangled and difficult situation.
It's like a ball of yarn, the more it is straightened out, the more messy it becomes.
When neither party can really argue against the other, it can only depend on the decision of the judge in the middle.
Chapter completed!