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Randolph Guthrie v. Giant Star Property Inc. (Dispute over Elimination of Obstruction and Compensation for Losses)
顾然地诉巨星物业排除妨碍、赔偿损失纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Property
  • Legal document: Judgment
  • Judgment date: 07-25-2003
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 6,2003

Randolph Guthrie v. Giant Star Property Inc. (Dispute over Elimination of Obstruction and Compensation for Losses)
(Dispute over Elimination of Obstruction and Compensation for Losses)
顾然地诉巨星物业排除妨碍、赔偿损失纠纷案

Randolph Guthrie v. Giant Star Property Inc.
(Dispute over Elimination of Obstruction and Compensation for Losses)

 

顾然地诉巨星物业排除妨碍、赔偿损失纠纷案

BASIC FACTS 
Plaintiff: Randolph Hobson Guthrie III, male, borne on January 29, 1967, of the US nationality, dwelling at Suite 29E, Building No. 4, Sanhe Garden, Lane 123, Yanping Road, Shanghai. 原告:顾然地(RANDOLPH HOBSON GUTHRIE III),男,1967年1月29日出生,美国国籍,现住上海市延平路123弄三和花园4号楼29E室。
Defendant: Giant Star Property Inc., domiciled at No. 1, Lane 118, Maoming North Road, Shanghai. 被告:上海巨星物业有限公司,住所地:上海市茂名北路118弄1号。
Legal Representative: Qiu Yunluo, general manager of the Company. 法定代表人:裘云洛,该公司总经理。
PROCEDURAL POSTURE 
Randolph Guthrie, the plaintiff, considered that Giant Star Property Inc. (hereinafter referred to as GS Inc.) prevented him from exercising his ownership, and brought a lawsuit with the People's Court of Jing'an District, Shanghai Municipality (hereinafter referred to as Jing'an District Court) for elimination of the obstruction and compensation for the losses. 原告顾然地认为被告上海巨星物业有限公司(以下简称巨星物业)妨碍其行使所有权,向上海市静安区人民法院提起排除妨碍、赔偿损失的诉讼。
Randolph claimed that: Suite 29E, Building No. 4, Sanhe Garden was an apartment he had bought, so he should have the right to install a bathtub in his own apartment. GS Inc.'s duty was merely to manage the real properties. However, it prevented him from installing the bathtub on the ground that the installation and use of the bathtub would impact the safety of the building. Even after Randolph promised that he would not use it at present, GS Inc. still did not consent to the installation, thus the bathtub was placed outdoors for long, and was seriously damaged. GS Inc.'s act had seriously infringed upon Randolph Guthrie's lawful rights and interests, and had caused mental and property losses to Randolph Guthrie. Randolph Guthrie pleaded with the court to order GS Inc. to eliminate the obstruction, to compensate 5,000 Yuan of mental losses and 7,600 Yuan of labor costs to Randolph, and to bear the litigation costs for the present case. 原告诉称:三和花园4号楼29E室是原告购买的房屋,原告有权在自己的房屋安放自己的浴缸。被告的职责仅是对物业进行管理,却以原告安装、使用这个浴缸会影响楼房安全为由,阻止原告安放浴缸,后在原告承诺目前并不使用的情况下,被告仍不同意安放,以至该浴缸被长期搁置在户外,损坏严重。被告的行为严重侵犯了原告的合法权益,给原告造成精神和财产损失。请求判令被告排除妨碍,给原告赔偿精神损失5000元、人工费损失7600元,并负担本案的诉讼费。
Randolph Guthrie submitted the following evidence to support his own litigation assertions: 原告顾然地为支持自己的诉讼主张,提交以下证据:
1. the contract for the sale of commodity house in Shanghai, which proves that Randolph Guthrie was the owner of Suite 29E, Building No. 4, Sanhe Garden, Lane 123, Yanping Road, Shanghai; 1.上海市商品房出售合同,以此证明顾然地是上海市延平路123弄三和花园4号楼29E室的业主;
2. Qin Yong's written testimony, which proves that Randolph Guthrie was prevented by GS Inc. when hanging the bathtub on December 13, 2001; 2.证人秦勇的书面证词,以此证明2001年12月13日顾然地吊装浴缸时遭到被告的阻止;
3. Gu Jinkuan's written testimony, which proves that Randolph Guthrie paid fees to the installation company after he was prevented from hanging the bathtub; 3.证人顾金宽的书面证词,以此证明在吊装浴缸被阻止后,顾然地向安装公司支付了费用;
4. the directions to the use of the bathtub in dispute and the translation thereof, which prove that the shape, size, weight and use of the bathtub will not harm the building body. 4.系争浴缸的说明书及翻译件,以此证明浴缸的形状、大小、重量以及使用该浴缸不会对楼体造成危害。
GS Inc. argued that: GS Inc. was entrusted by the owners' committee to manage the whole real properties of Building No. 4 of Sanhe Garden. The area and cubage of Randolph's bathtub were too large, and its weight could not be endured by the floor of the building when it was put into use, and it would endanger the safety of the building's structure, so GS Inc. prevented Randolph from hanging it. Randolph brought the lawsuit for twice in order to put that bathtub indoors, and his purpose was not merely to protect the bathtub. Randolph's commitment on not using the bathtub was not honest, and was unconvincing. The general use of a bathtub could only be for bathing. Once Randolph got the consent to place the bathtub indoors and used it, it would become a concealed trouble endangering safety, and thus impact other owners' normal use of the real properties. As a real property manager, GS Inc.'s stopping Randolph from installing that bathtub was an act of performing the management duty according to law, which did not injure Randolph's lawful right, hence GS Inc. did not agree to Randolph's litigation claims. 被告辩称:被告受业主委员会的委托,管理三和花园4号楼整个物业。原告的浴缸面积、体积过大,使用时的重量是该楼楼板无法承受的,会危及楼房结构的安全,被告因此才阻止原告吊装。原告为让这个浴缸进入室内,不惜两次提起诉讼,其目的绝不仅仅是保护浴缸。原告关于不使用该浴缸的承诺,缺乏诚信,难以令人信服。浴缸通常的用途,只能是洗澡。如果同意原告将浴缸放置在室内,其一旦使用,就会成为安全隐患,从而影响其他业主对物业的正常使用。作为物业管理者,被告制止原告安装该浴缸,是依法履行管理职责的行为,没有侵犯原告的合法权利,故不同意原告的诉讼请求。
GS Inc. submitted the following evidence to support its own assertions: 被告巨星物业为支持自己的主张,提交以下证据:
1. the owners' convention of Sanhe Garden in Jing'an District, Shanghai, which proves that Randolph Guthrie violated the convention, and GS Inc. followed the owners' convention to perform its management duties; 1.上海市静安区三和花园业主公约,以此证明顾然地违反了该公约,被告只是按业主公约履行管理职责;
2-3. eight photos on the bathtub in dispute and the ichnography of the bathroom of Suite 29E, Building No. 4, Sanhe Garden, which prove that the bathtub in dispute was unable to be installed in the bathroom of Suite 29E, Building No. 4 of Sanhe Garden; 2—3.系争浴缸的照片8幅以及三和花园4号楼29E室的浴室平面图,以此证明系争浴缸无法安装在三和花园4号楼29E的浴室内。
4. the convention concluded between Randolph Guthrie and Shanghai Hexin Real Property Management Limited Company (hereinafter referred to as Hexin Company), which proves that Randolph Guthrie promised to perform the owner's obligation pursuant to the laws, regulations and the convention, while Randolph Guthrie's installation of the bathtub violated the convention; 4.顾然地与上海和馨物业管理有限公司(以下简称和馨物业)签订的公共契约,以此证明顾然地承诺按照法律、法规及契约的规定履行业主义务,而顾然地安装浴缸的行为违反了这个约定;
5. four notifications for rectification as sent by Hexin Company to Randolph Guthrie, which prove that the former real property management company of Sanhe Garden ordered Randolph Guthrie in writing for several times to stop the rule-breaking decoration of the apartment and installation of the bathtub; 5.和馨物业发给顾然地的整改通知书4份,以此证明三和花园原物业管理公司因顾然地违规装修房屋及安装浴缸,曾数次书面限令其停止违章行为;
6. a letter of commitment concluded between GS Inc. and the owners' committee of Sanhe Garden on May 28, 2001, which proves that GS Inc. was a lawful manager of the real properties of Sanhe Garden, and had the right to stop the owners' rule-breaking act; 6.巨星物业与三和花园业主委员会于2001年5月28日签订的承诺书一份,以此证明巨星物业是三和花园物业的合法管理者,有权制止业主的违规行为;
7. four notifications sent by GS Inc. to Randolph Guthrie for rectification within a time limit, which prove that GS Inc. also ordered Randolph Guthrie in writing for several times to stop the rule-breaking act; 7.巨星物业发给顾然地的限期整改通知书4份,以此证明巨星物业也曾数次书面限令顾然地停止违章行为;
8. the letter wrote by some owners of Sanhe Garden with joint signatures to GS Inc., which proves that some owners considered Randolph Guthrie's act endangered the safety of the building and injured other owners' interests, and they required GS Inc. to obstruct Randolph Guthrie from doing that; 8.三和花园部分业主联名写给巨星物业的信件,以此证明部分业主认为顾然地的行为危害房屋的安全,侵犯了其他业主的利益,要求巨星物业予以阻止;
9-10. a statement issued by Sanhe Garden Residents' Committee and anther one issued by Caojiadu House Administration Office, which prove that GS Inc. prevented Randolph Guthrie from hanging the bathtub, and the facts that the Residents' Committee members, the policemen and the House Administration Office staff stopped Randolph Guthrie's act; 9—10.三和花园居委会和曹家渡房管办事处出具的情况说明各一份,以此证明巨星物业阻止顾然地吊装浴缸,以及居委会人员、民警和房管办人员对顾然地的行为进行制止的情况;
11. the letter sent by Randolph Guthrie's lawyer to GS Inc. and GS Inc.'s reply letter, which prove that GS Inc. did not consent to Randolph Guthrie's hanging the bathtub in consideration of the real property safety. 11.顾然地的律师发给巨星物业的信函以及巨星物业的回复件,以此证明巨星物业从物业安全的角度考虑不同意顾然地吊装浴缸。
Jing'an District Court presided over the cross-examination and certification of the evidence in the court hearing. GS Inc. had no objection to Evidence Items 1 and 2 submitted by Randolph Guthrie, but thought that the statement of the witness of Evidence Item 3 was untrue, that Evidence Item 4 was superficially authentic but unable to prove that the use of the bathtub would not endanger the building body. Randolph Guthrie had no objection to Evidence Items 2, 3, 4, 5, 7 and 11 submitted by GS Inc.; he held that Evidence Item 1, i.e. the owners' convention, had no binding force upon him because he was not clear about how it was concluded, and the convention neither bore the date nor was registered; he also held that the letter of commitment of Evidence Item 6 was not a real property management contract, and could not prove GS Inc.'s qualification to manage the residential area, because only the registered and archived real property management contract could prove the relationship between the owners' committee and the real property management company; he was not clear about the process of forming Evidence Items 8 through 10 or the contents to be proved, and did not provide corresponding opinions in cross-examination of the evidence. After cross-examination of the evidence, the court confirmed the evidence items undisputed between both parties; and held that since Randolph Guthrie did not make any reasonable explanation on GS Inc.'s opinion in cross-examination of the evidence regarding Randolph Guthrie's Evidence Item 3, nor did he submit other evidence to corroborate his own actual losses, the probative force of that evidence should not be certified; the authenticity of Randolph Guthrie's Evidence Item 4 should be confirmed, and whether the use of the bathtub would endanger the building body should be determined in combination with other evidence; GS Inc.'s Evidence Items 1 and 6 were found true from verification, and should be certified; although at the time of cross-examination of the evidence, Randolph Guthrie did not think that the owners' committee followed the prescribed procedures and the owners' convention had binding force before it was archived, he failed to submit evidence to support that assertion, hence the assertion should not be adopted. GS Inc.'s Evidence Items 8 through 10 could not directly prove the source of its right to stop Randolph Guthrie from hanging the bathtub, nor were they directly connected with the present case, hence they should not be certified. 上海市静安区人民法院主持了庭审质证、认证。被告巨星物业对原告顾然地提交的证据1、2无异议,认为证据3的证人所述不实,证据4存在表面真实性,但该证据无法证明使用浴缸不会危害楼体。顾然地对巨星物业提交的证据2、3、4、5、7、11无异议;认为不清楚证据1的业主公约是如何签订的,该公约既无日期也无登记,对本人没有约束力;证据6的承诺书不是物业管理合同,不能证明巨星物业有管理小区的资格,只有经登记备案的物业管理合同才能证明业主委员会与物业公司之间的关系;不清楚证据8、9、10形成的过程以及要证明的内容,不发表质证意见。法庭经质证,对双方当事人无争议的证据予以确认;认为巨星物业对顾然地的证据3提出的质证意见,顾然地没有作出合理解释,且不能提交其他证据印证自己的实际损失,故该证据的证明力不予认证;顾然地的证据4,其真实性应予确认,并应当结合其他证据认定使用浴缸是否危害楼体;巨星物业的证据1、6,经核查属实,应予认证;顾然地质证时,虽然认为业主委员会未按规定程序操作,业主公约未经备案对其不具有约束力,但没有提交能支持自己这个主张的证据,故对这个主张不予采纳。巨星物业的证据8、9、10,不能直接证明该物业制止顾然地吊装浴缸的权利来源,与本案没有直接关系,故不予认证。
On the basis of the above-mentioned evidence, Jing'an District Court found the facts of the present case as follows: 基于上述证据,上海市静安区人民法院认定本案事实如下:
In January 1997, Hainan Gusili Microelectronics Technology Co., Ltd. (hereinafter referred to as Gusili Company) bought a double-storey apartment, i.e., Suite 29E, Building No. 4, Sanhe Garden. In October, Randolph Guthrie completed the procedures for moving into the apartment in the identity of employee of Gusili Company, and concluded the “Convention” with Hexin Company, former real property manager of Sanhe Garden. In October 1998, Randolph Guthrie bought a bathtub of 4.267 meters ×2.286 meters ×1.219 meters (length × width× height), with the upper area at 9.754 square meters and bottom area at 8. 826 square meters. The bathtub weighted 362.8 kilograms, and could contain 4160.5 kilograms of water. Randolph Guthrie wanted to install the bathtub on the upper floor of Suite 29E. Hexin Company prevented Randolph Guthrie from installing the bathtub, and served notifications for rectification to him for several times regarding his rule-breaking acts in the process of decoration. In April 2000, the owners' committee of Sanhe Garden employed GS Inc. as Sanhe Garden's manager. Randolph Guthrie again negotiated with GS Inc. for many times regarding installation of the bathtub, but GS Inc. did not permit him to install the bathtub on the ground that the installation should pass the safety test. In September, Randolph Guthrie hung the big bathtub again, but was stopped by GS Inc. In October, Gusili Company brought a lawsuit with the court, pleading with the court to order GS Inc.'s to eliminate the obstruction to Randolph Guthrie from installing the bathtub, and to order GS Inc. to compensate for the losses. In April 2001, the case was finalized due to Gusili Company's withdrawal of the case. After that, GS Inc. wrote letters to Randolph Guthrie for four times, informing him to stop the rule-breaking acts in the process of decoration, and not to hang up the bathtub before the safety was confirmed. GS Inc. also required him to move the bathtub away from the road side of the residential area. On December 10, Randolph Guthrie bought Suite 29E, Building No. 4, Sanhe Garden, and brought the lawsuit in question in the identity of the apartment owner. 1997年1月,海南古斯利微电子技术有限公司(以下简称古斯利公司)购买了三和花园4号楼29E室复式房屋一套。同年10月,原告顾然地以古斯利公司员工的身份办理了入住手续,并与三和花园的原物业管理人和馨物业签订了《公共契约》。1998年10月,顾然地购买了一只长宽高为4.267米×2.286米×1.219米、上口面积9.754平方米、占地面积8.826平方米,自重362.8公斤,可容水4160.5公斤的浴缸,欲安装在29E室的跃层。和馨物业阻止顾然地安装该浴缸,并针对其在装修中的违规行为数次向其送达了整改通知。2000年4月,三和花园业主委员会聘用被告巨星物业为三和花园的管理人。顾然地又就浴缸安装问题多次与巨星物业交涉,巨星物业均以安装该浴缸需通过安全测定为由不予准许。同年9月,顾然地再次吊装大浴缸,被巨星物业制止。10月,古斯利公司向法院提起诉讼,请求排除巨星物业对顾然地安装浴缸的妨碍,并判令巨星物业赔偿损失。2001年4月,因古斯利公司撤诉,此案了结。嗣后,巨星物业四次致函顾然地,告知其停止装修中的违规行为,在安装浴缸的安全问题没有确认以前不得吊装浴缸,并要求其将放置在小区道路旁的浴缸搬离。同年12月10日,顾然地出资购买了三和花园4号楼29E室,遂以该房屋业主的身份提起本案诉讼。
It was further verified that, there were three bathrooms in Suite 29E, Building No. 4, Sanhe Garden, and their usable areas were respectively 3.5 square meters, 10.39 square meters, 4.6 square meters. On May 26, 2001, after GS Inc. managed Sanhe Garden for one year, the owners' committee of Sanhe Garden concluded a letter of commitment with GS Inc., setting forth that Sanhe Garden should be managed by GS Inc. until July 31, 2001. 另查明,三和花园4号楼29E室内有三个浴室,使用面积分别为3.5平方米、10.39平方米、4.6平方米。2001年5月26日,在被告巨星物业对三和花园进行管理一年后,三和花园业主委员会与巨星物业签订了约定承诺书,约定至2001年7月31日,三和花园仍由巨星物业进行管理。
During the court hearing, upon application of GS Inc., the court notified Chen Biyong and Zhai Jinliang, who were separately senior engineer and national first-grade registered structure engineer of China Construction Southeastern Design and Research Institute (the designing entity of Building No. 4 of Sanhe Garden) to appear in the court, and to make explanations and accept inquiries regarding the professional issue of whether the floor of Suite 29E, Building No. 4, Sanhe Garden could endure the weight of the bathtub in dispute when it was in use. The two engineers clearly said that, Building No. 4 of Sanhe Garden was designed according to the national loading code for building structure of dwelling houses, and the huge bathtubs such as that one in dispute were not taken into account at the time of design; the loading capacity of the indoor floor was 200 kilograms per square meter, and generally there was a safety coefficient equaling 1.4; that is to say, the maximum loading capacity should not exceed 280 kilograms per square meter, however, the weight of the bathtub in dispute when filled with water was heavier than the said loading capacity; the long-term use of the bathtub in Building No. 4 of Sanhe Garden would inevitably impact the intensity of the floor, indirectly impact the walls, and cause dangers to the safety of the building. The statements of the two engineers were affirmed by GS Inc. but refused by Randolph Guthrie. Randolph Guthrie held that since the thickness of the floor was twice of the ordinary floor, and if the loading capacity of ordinary floor was 280 kilograms per square meter, then the loading capacity of the floor of that building should be approximately 560 kilograms per square meter. The two engineers explained that, the thickness of floor was determined on the basis of the building structure, and was not necessarily connected with loading capacity; if the loading capacity of the floor was to be increased, it must be subject to particular treatment; hence before the floor of Building No. 4 was subject to particular treatment, the maximum loading capacity could only be 280 kilograms per square meter. 审理中,经被告巨星物业申请,法院通知三和花园4号楼的设计单位中国建筑东南设计研究院的高级工程师陈必勇和国家一级注册结构工程师翟金亮到庭,就三和花园4号楼29E室的楼板能否承受系争浴缸使用时的重量这一专业性问题进行说明和接受询问。两位工程师明确表示,三和花园4号楼是按照国家规定的居住用房建筑结构荷载规范进行设计的,设计时没有考虑到安放象系争浴缸这样巨大的浴缸;该室内楼板承重为每平方米200公斤,一般情况下还有1.4的安全系数,即每平方米最大不能超过280公斤,系争浴缸放水后的重量已大于这个承重极限;在三和花园4号楼长期使用这个浴缸,势必影响楼板的强度,间接影响墙面,会给楼宇安全带来危险。对于两位工程师的说明,巨星物业认同,原告顾然地则不接受,认为该楼楼板厚度是一般楼板的一倍,若一般楼板每平方米能承重280公斤,该楼楼板就应该能承受每平方米560公斤左右的重量。两位工程师解释,楼板厚度是根据建筑结构的需要设定的,厚度与承重没有必然联系;如要提高楼板的承重能力,必须进行特殊处理;4号楼楼板在没有进行特殊处理前,其最大荷载只能是每平方米280公斤。
The above-mentioned statements of the two engineers regarding the professional issue involved in the case were affirmed by the court. 对两位工程师就案件涉及的专门性问题所作的以上说明,法庭予以认可。
Jing'an District Court held that: 上海市静安区人民法院认为:
Any independent building is composed of the base, the framework, the loading part, etc. Although an independent building may be divided into different spaces with plates, so that different people may use their respective spaces independently, the base, framework, loading walls, plates, coping, walkway, stairs, doors, windows, pipelines and necessary activity places, which compose the independent building, are unable to be divided for use. If the whole independent building is divided into parts owned by a number of people, then each person may only enjoy the condominium, which is different from building ownership in the form of one ownership for one property. Although, just like building ownership, condominium has all the features of real right, the character of a building determines that condominium is a compound right, whereby the obligee enjoys all the ownership-based rights to possess, utilize, profit from and dispose of his special part in the building and enjoys the joint ownership over the common parts of the whole building. Meanwhile, the character of building determines that an obligee will face certain restrictions when exercising his rights. Such a restriction means that a unit proprietor may reasonably use only his own part of the building within the limit allowed by the design, and that the unit proprietor shall not, when using his own special part of the building, violate the common interests of all unit proprietors or obstruct the normal use of the whole building. 任何一幢独立建筑物,均由基础、框架、承重等部分构成。尽管用隔板可以将一幢独立建筑物分割成不同的使用空间,以供不同的人分别独立使用,但构成该幢独立建筑物的基础、框架、承重墙体、隔板、顶盖、走道、阶梯、门窗、管线以及必要的活动场所等部位,却无法分割使用。整幢独立建筑物如果被分割为若干人所有,则每个人享有的是建筑物区分所有权,它不同于一物一权形态下的建筑物所有权。建筑物区分所有权虽然与建筑物所有权一样具备物权的一切特征,但由于建筑物的特性,决定了它是一种复合性权利,权利人既对其在建筑物中的专有部分享有占有、使用、收益和处分的全部所有权权能,又对整幢建筑物的共用部分享有共有权。同时也由于建筑物的特性,决定了权利人在行使其权利时要受到一定限制。这种限制是指,区分所有权人只能在建筑物设计允许的限度内合理使用自己专有部分的建筑物,区分所有权人使用自己专有部分的建筑物时,不得违反全体区分所有权人的共同利益,不得妨碍整幢建筑物的正常使用。
Article 6 of the General Principles of Civil Law of the People's Republic of China 我我我什么都没做prescribes that: “Civil activities must be in compliance with the law; where there are no relevant provisions in the law, they shall be in compliance with state policies.” Article 83 prescribes: “In the spirit of helping production, making things convenient for people's life, enhancing unity and mutual assistance, and being fair and reasonable, neighboring users of real estate shall maintain proper neighborly relations over such matters as water supply, drainage, passageway, ventilation and lighting. Anyone who causes obstruction or damage to his neighbor shall stop the infringement, eliminate the obstruction and compensate for the damage.” Randolph Guthrie was the owner of Suite 29E, Building No. 4, Sanhe Garden, and enjoyed condominium over the suite. Just like other wallboards and floor of the building, the wallboards and floor in Suite 29E were an undividable part which enabled the building to become an independent building, and were the properties jointly owned by all the unit proprietors. If Randolph Guthrie used the wallboards and floor in Suite 29E according to the designed purpose and loading capacity, no one else might have the right to interfere, but if he used the wallboards and floor by exceeding the limit allowed by the design, he should get consent from other unit proprietors. Although three bathrooms were designed in Suite 29E, the usable area of the biggest one was only 10.39 square meters. The upper area of Randolph Guthrie's bathtub was 9.754 square meters, and on the basis of daily living experiences, the bathtub was unable to be installed in Randolph Guthrie's bathroom. If it were installed in any other indoor position, it would inevitably change the design layout and purpose of the apartment. Moreover, the weight of the bathtub when filled with water exceeded the designed loading capacity of the floor, i.e., maximum 280 kilograms per square meter. If the bathtub was used for long, not only Randolph Guthrie's safety could not be guaranteed, but also the safety of other neighborly unit proprietors would be inevitably endangered. Under such a circumstance, Randolph Guthrie should not place that bathtub unless he was consented to by other unit proprietors, otherwise he would injure both the jointly owned properties and the neighborly relations. 中华人民共和国民法通则》第六条画风不对,如何相爱规定:“民事活动必须遵守法律,法律没有规定的,应当遵守国家政策。”第八十三条规定:“不动产的相邻各方,应当按照有利生产、方便生活、团结互助、公平合理的精神,正确处理截水、排水、通行、通风、采光等方面的相邻关系。给相邻方造成妨碍或者损失的,应当停止侵害,排除妨碍,赔偿损失。”原告顾然地是三和花园4号楼29E室的业主,对该室享有建筑物区分所有权。29E室内的墙板、楼板与该楼其他墙板、楼板一样,是使该楼能成为独立建筑物的不可分割部分,应属全体区分所有权人共有的财产。顾然地如果按照设计的用途和设计的荷载量使用29E室内的墙板、楼板,他人无权干涉,但如果超出设计允许的限度使用墙板、楼板,就应该征得其他区分所有权人的同意。29E室内虽然设计了三间浴室,但最大一间的使用面积也只有10.39平方米。顾然地的浴缸,上口面积达9.754平方米,根据日常生活经验,这个浴缸无法安装在顾然地的浴室内。若安装在室内其他部位,则势必改变房屋的设计布局和用途。况且该浴缸注满水后的重量,超出了每平方米最大280公斤的楼板设计荷载量。长期使用这个浴缸,不仅顾然地的安全不能保证,且势必危及相邻其他区分所有权人的安全。在此情况下,顾然地必须征得其他区分所有权人的同意,才能放置这个浴缸,否则既是对共有财产的侵犯,也是对相邻关系的损害。
The “Regulation of Shanghai Municipality on Residential Real Property Management” prescribes that, owners and house users shall abide by the relevant provisions of the laws and regulations, follow the principle of being beneficial to the use of the real properties, and the principle of safety, fairness and reasonableness, and properly handle the interrelations among water supply, drainage, passage, ventilation, lighting, maintenance, sanitation and environmental protection; they shall not change the residential function of dwelling houses at will, and the acts of damaging the house loading structure and destroying the house appearances are prohibited; the real property management enterprise shall guide and supervise the interior decoration and use of dwelling houses, and shall, once finding any improper act, dissuade and stop it and press for correction, or shall, with regard to those who refuse to make the correction, report the case to the owners' committee timely and ask the relevant administrative department to impose penalties in accordance with the laws. As a real property management enterprise, GS Inc. was entrusted by the owners' committee to manage the real properties of Sanhe Garden. It was GS Inc.'s management duty to stop Randolph Guthrie from hanging the bathtub, which was not inappropriate. The bathtub was unable to be installed in the bathroom in terms of area and could not be installed in other parts of Suite 29E in terms of weight. However, Randolph Guthrie insisted on placing it in Suite 29E. Since the specific function of a bathtub is for bathing, even if Randolph Guthrie promised not to use the bathtub after placing it indoors, the promise did not make common sense. GS Inc.'s doubt on the promise from the angle of guaranteeing real property safety was rational in a certain extent. GS Inc.'s act was not illegal, nor was there any fact of tort. Randolph Guthrie's litigation claim against GS Inc. for compensation of mental losses and labor costs should not be supported. Therefore, Jing'an District Court adjudicated as follows on March 20, 2002: 上海市居住物业管理条例》规定,业主应当按照有利于物业使用、安全以及公平、合理的原则使用物业,正确处理相邻关系,不得随意改变住宅的使用性质,禁止损坏房屋承重结构和破坏房屋外貌的使用行为;物业管理企业指导和监督装修、使用住宅的活动,发现不当行为应劝阻制止并督促改正,对拒不改正的,应当及时告知业主委员会并报有关行政管理部门依法处理。被告巨星物业作为物业管理企业,接受业主委员会的委托,对三和花园进行物业管理。巨星物业对原告顾然地吊装浴缸的行为加以制止,是其管理职责所在,并无不妥。对这个从面积看无法在浴室安装、从重量看不能在29E室其他部位安装的浴缸,顾然地坚持要求放入29E室。浴缸的特定功能是洗澡,将这个浴缸放在室内,其虽然承诺不使用,但这种承诺有悖常理。巨星物业从保障物业安全的角度出发,对这一承诺表示怀疑,有一定的合理性。巨星物业的行为不具有违法性,且无侵权事实。顾然地要求巨星物业赔偿精神损失和人工费损失,该诉讼请求不予支持。据此,上海市静安区人民法院于2002年3月20日判决:
I. Randolph Hobson Guthrie III's litigation claims against Giant Star Property Inc. for eliminating the obstruction and for stopping preventing him from moving his own bathtub into Suite 29E, Building No. 4, Sanhe Garden, Lane 123, Yanping Road, Shanghai, shall not be supported; 一、原告顾然地(RANDOLPH HOBSON GUTHRIE III)要求被告上海巨星物业有限公司排除妨碍,不得阻挠其将自己所有的浴缸搬入上海市延平路123弄三和花园4号楼 29E房屋内的诉讼请求不予支持;
II. Randolph Hobson Guthrie III's litigation claim against Giant Star Property Inc. for compensation of RMB 5,000 Yuan of mental losses shall not be supported; and 二、原告顾然地(RANDOLPH HOBSON GUTHRIE III)要求被告上海巨星物业有限公司赔偿精神损失费人民币 5000元的诉讼请求不予支持;
III. Randolph Hobson Guthrie III's litigation claim against Giant Star Property Inc. for compensation of RMB 7,600 Yuan of labor costs shall not be supported. 三、原告顾然地(RANDOLPH HOBSON GUTHRIE III)要求被告上海巨星物业有限公司赔偿人工费损失人民币 7600元的诉讼请求不予支持。
The RMB 514 Yuan of case acceptance fee shall be borne by Randolph Hobson Guthrie III. 案件受理费人民币514元,由原告顾然地(RANDOLPH HOBSON GUTHRIE III)负担。
BASIC FACTS 
After the judgment of the first instance was announced, Randolph Guthrie was dissatisfied, and appealed to the No.2 Intermediate People's Court of Shanghai Municipality (hereinafter referred to as Shanghai No. 2 Intermediate Court). His grounds were as follows: the upper floor of Suite 29E was of the structure of cast-in-situ ferroconcrete slabs, supported with concealed girders, and was not of the structure of girder slabs usually in use. Compared with ordinary girders, concealed girders have smaller stiffness, are easier to be deformed, and have less supports to and restrictions on the slabs. During the first instance, the statements of the designing entity of Sanhe Garden did not take these features of the upper floor of Suite 29E into account. The conclusion was wrong. The issue of whether the upper floor of Suite 29E could load the bathtub filled with water should be authenticated. Randolph Guthrie was merely to prepare for installing the bathtub on the upper floor of Suite 29E, without using it. The weight of the bathtub itself would not result in damage to the upper floor; after relevant reinforcement measures were taken to the upper floor, even if the bathtub was filled with water, the upper floor could completely meet the loading requirement, and would not cause any concealed trouble to the safety of the whole building. Moreover, Suite 29E was within the scope of Randolph Guthrie's rights, if Randolph Guthrie's act was harmful, it would only damage Randolph Guthrie's own interests, and would not impact the interests of others or public interests. Furthermore, GS Inc. was not a formal or lawful manager of Sanhe Garden, hence its stopping Randolph Guthrie from installing the bathtub was inappropriate, and it should compensate for the losses suffered by Randolph Guthrie due to inability to timely install the bathtub, such as labor costs, freightage, etc. It was wrong for the judgment of first instance to reject Randolph Guthrie's litigation claims, and the said judgment should be amended. 第一审宣判后,顾然地不服,向上海市第二中级人民法院提起上诉。理由是:29E室跃层的楼板,采用现浇钢筋混凝土大板结构,使用暗梁,并非通常情况下的梁板结构。暗梁与普通梁相比,刚度小、变形大,对板的支撑及约束小。一审时三和花园设计单位所作的说明,没有考虑29E室跃层的这些特点.结论是错误的。应当对29E室跃层楼板能否承载注满水的浴缸这个问题进行鉴定。上诉人目前只是准备将浴缸安放在29E室跃层,不去使用,根据浴缸的自重,这样做不会损坏跃层楼板;在对跃层楼板采取相关加固措施后,即使将浴缸加满水,跃层楼板也能完全满足承载要求,不会对整个大楼的安全造成隐患 再说,29E室是上诉人的权利范围,如果上诉人的行为存在危害,损害的只能是上诉人自己的利益,不会影响他人利益和公共利益,另外,被上诉人不是三和花园的正规、合法管理者,因此其制止上诉人安放浴缸的行为是不正当的,应当赔偿上诉人因无法及时安装浴缸而遭受的人工费、运费等损失。一审判决驳回上诉人的诉讼请求,是错误的,应当改判。
GS Inc. argued that:Although Suite 29E was owned by Randolph Guthrie, he should abide by the provisions of law, and use the suite within the limit allowed by the design of the building. Randolph Guthrie's installation and use of the big bathtub would definitely endanger the safety of the floor and the whole building, and thus impact other owners' normal lives. It was the ground for GS Inc. to stop Randolph Guthrie. Randolph Guthrie's installation and use of the big bathtub in Suite 29E would inevitably change the structure and use of the apartment; the inflow of water to and outflow of water from the bathtub would also cause trouble to the water supply and discharge system of the whole building. To speak more modestly, it was to start from public safety and real property safety and to be on the basis of summing up the past lessons that Shanghai Municipality made the real property management provisions on forbidding owners from changing the structure or use of houses. The provisions do not mean that each change of the structure or use of a house would endanger the public safety or real property safety. However, if there are no such provisions, and each owner is permitted to change the structure or use of his house at will, it would inevitably endanger public safety and real property safety. Therefore, even if Randolph Guthrie had not caused danger when changing the structure and use to install the bathtub, he still had no right to violate the provisions of Shanghai Municipality on real property management. Therefore, the judgment of first instance was correct and should be sustained. 被上诉人巨星物业答辩称:虽然29E室归上诉人所有,但上诉人应当遵守法律规定,在建筑物设计允许的限度内使用该室。上诉人安装和使用大浴缸,肯定会给楼板及整幢房屋的安全带来危险,从而影响其他业主的正常生活,这是被上诉人阻止上诉人的理由;上诉人在29E室安装和使用大浴缸,必然改变房屋的结构和用途;该浴缸的进水和出水,也会使整幢大楼的供排水系统发生问题。退一步讲,不允许业主改变房屋的结构和用途,是上海市从公共安全和物业安全出发,在总结以往教训的基础上作出的物业管理规定。作出这个规定,并不意味着对房屋结构和用途的每一次改变,都会危害公共安全和物业安全。但是没有这个规定,允许每一位业主随意改变房屋的结构和用途,则势必会危害公共安全和物业安全。因此即便上诉人为安装浴缸而改变房屋结构和用途的行为没有造成危险,其也无权违反上海市的物业管理规定。一审判决正确,应当维持。
After the trial, Shanghai No. 2 Intermediate Court confirmed that the facts found in the first instance were true. During the second instance, upon application of Randolph Guthrie, the court entrusted Shanghai Research Institute of Building Science to authenticate whether the upper floor of the double-storey apartment, Suite 29E, Building No. 4, Sanhe Garden, could load the bathtub in dispute when it was filled with water. After making structural checking computation of the floor with the SATWE software analysis program, the Institute drew the following evaluation conclusion: if an ordinary dwelling house is not specially designed, it will not be suitable for installing a huge bathtub. The structural checking computation showed that the safety of the upper floor could not meet the requirement for installing a huge bathtub. Therefore, Suite 29E, Building No. 4, Sanhe Garden should not be installed with the huge bathtub on the upper floor. 上海市第二中级人民法院经审理,确认一审认定的事实属实。二审期间,应上诉人顾然地的申请,法院委托上海市建筑科学研究院对三和花园4号楼29E室复式房屋内的跃层楼板能否承载装满水的系争浴缸进行鉴定。该院用SATWE软件分析程序对该室楼板进行结构验算后,得出的评估结论是:一般住宅建筑若不做专门设计,不适宜安装巨型浴缸。结构验算表明,跃层楼板的安全性不能满足安装巨型浴缸的要求。因此,三和花园4号楼29E室不应在跃层安装巨型浴缸。
With respect to this evaluation conclusion, Randolph Guthrie held that: SATWE software analysis program was used to calculate the inner forces and reinforcement of girder wall components under usual conditions, while the upper floor of Suite 29E were of the structure of cast-in-situ ferroconcrete slabs. The inner forces and reinforcement of such a floor should be calculated with the SAP software analysis program worked out by the internationally prevailing slab metamodel. In addition, the evaluation report did not take Randolph Guthrie's reinforcement measures into account, hence the conclusion was not convincing. Randolph Guthrie requested re-authentication. A retired professor retained by Randolph Guthrie also held that, there existed problems with the evaluation report, for example, the calculation conditions of the upper floor of Suite 29E was simplified, whether the upper floor or the whole building was unsafe was not clarified, and the internationally prevailing SAP software analysis program was not used in calculation. GS Inc. held that, the evaluation conclusion was consistent with the statements made by the designing entity of Sanhe Garden in the first instance, and was correct. 对于这个评估结论,上诉人顾然地认为:SATWE软件分析程序是用来计算通常状况下的梁墙构件内力及配筋量的,而29E室跃层楼板采用的是现浇钢筋混凝土大板结构。对这个楼板的内力及配筋量,应当采用国际通用的板元模型编制的SAP软件分析程序计算。另外,评估报告没有考虑上诉人将采取的加固措施,故得出的结论不可信,要求重新鉴定。顾然地聘请的一位退休教授也认为,评估报告存在着将29E室跃层楼板计算条件简化、没有明确不安全性是指该室跃层楼板还是整幢大楼、没有使用国际通用的SAP软件分析程序进行计算的问题。被上诉人巨星物业认为,评估结论与三和花园设计单位在一审中所作的说明相符,是正确的。
With regard to Randolph Guthrie's opinions, Shanghai Research Institute of Building Science, the authenticator, made checking computation with the SAP90 software analysis program on the safety of the upper floor of Suite 29E, and issued the following supplementary report conclusion: (1) The checking computation result made with SAP90 software analysis program shows that, after the huge bathtub is installed, the safety of the upper floor of Suite 29E was insufficient; (2) It is feasible to simplify the structure of the upper floor of Suite 29E from the form of slabs plus concealed girders into the girder slab structure, and to adopt the SATWE software analysis program in the checking computation, while checking computation result basically reflects the true force bearing state of the floor, and is basically consistent with the checking computation result made with the SAP90 software analysis program; (3) If an ordinary dwelling building is not specially designed, it will not be suitable to be installed with huge bathtubs. Since the layout design of Suite 29E did not take the installation of a huge bathtub in use into account, the installed huge bathtub would cause heavy impacts to the safety and normal use of partial structure of the building. 针对上诉人顾然地的意见,鉴定人上海市建筑科学研究院又使用SAP90软件分析程序对29E室跃层楼板的安全性进行验算后,出具的补充报告结论是:1.用SAP90软件分析程序验算的结果表明,29E室跃层楼板安装巨型浴缸后的安全性不足;2.将29E室跃层楼板采用的厚平板加暗梁结构形式简化为梁板结构,并采用SATWE软件分析程序验算,是可行的,验算结果基本反映楼板的真实受力状态,且与用SAP90软件分析程序验算的结果基本一致;3.一般住宅建筑若不做专门设计,不适宜安装巨型浴缸。29E室的房型设计未考虑到使用时会安装巨型浴缸,安装巨型浴缸对大楼的局部结构安全性及正常使用均会产生较大影响。
Randolph Guthrie did not think the supplementary report took his relevant reinforcement measures into account, hence the conclusion was incomplete, and was not practically feasible. 上诉人顾然地认为这个补充报告仍没有考虑其提出的相关加固措施,因此结论是不全面的,不具有现实可行性。
DISPUTED ISSUES 
Shanghai No. 2 Intermediate Court holds that, there are three focuses in dispute in the present case: (1) Could the bathtub in dispute be placed on the upper floor of Suite 29E of Sanhe Garden? (2) Did GS Inc. have the right to stop Randolph Guthrie from installing the bathtub in dispute? And (3) Did Randolph Guthrie suffer losses in the present case? Who shall bear the losses? 上海市第二中级人民法院认为,本案的争议焦点有三个:一、系争浴缸能否放置在三和花园29E室的跃层?二、被上诉人巨星物业是否有权制止上诉人顾然地安放系争浴缸的行为?三、顾然地在此案中是否遭受损失?损失应由谁承担?
On the first focus in dispute: 1. The designing entity of Sanhe Garden testifies that, the installation of the bathtub in dispute in Suite 29E, Building No. 4, Sanhe Garden would heavily impact the safety and normal use of the building. 2. The evaluation report and supplementary report of Shanghai Research Institute of Building Science testify that: the plate structure of the upper floor of Suite 29E, Building No. 4, Sanhe Garden not only bore the indoor loading capacity of the upper floor, but also bore the loading capacities of the outdoor balcony and partial roof, hence the installation of the bathtub in dispute would heavily impact the safety of partial structure of the building. The authenticator's authentication eligibility and authentication procedures were lawful, and thus the authentication conclusion shall be adopted. 3. Article 27 of the No. 33 [2001] judicial interpretation of the Supreme People's Court, i.e., Some Provisions of the Supreme People's Court on Evidence in Civil Procedures prescribes: “In case any party concerned refuses to accept the authentication conclusions made by the authentication institution designated by the people's court and applies for re-authentication, the people's court shall approve the application if there are evidences that can prove the existence of any of the following circumstances: (1) The authentication institution or authenticator does not have relevant qualifications; (2) The process of authentication is seriously illegal; (3) There is obviously insufficient evidence for the authentication conclusions; or (4) Other circumstance under which that evidence cannot be used as evidence after cross-examination.” “If any defective authentication conclusion can be made up by way of supplementary authentication, re-authentication or supplementary cross-examination, it shall not be re-authenticated.” Randolph Guthrie did not have enough evidence to deny the authentication conclusion of Shanghai Research Institute of Building Science, hence his request for re-authentication shall not be permitted. 4. Randolph Guthrie alleged that the bathtub in dispute could be installed after relevant reinforcement measures were taken on the upper floor of Suite 29E. Since this is a litigation claim not put forward in the first instance, and has exceeded the scope of hearing in the second instance, it shall not be settled by the present case. To sum up, the bathtub in dispute should not be placed in Suite 29E of Sanhe Garden. 关于第一个争议焦点。1.三和花园的设计单位证明,在三和花园4号楼29E室安装系争浴缸,会对大楼的安全和正常使用带来较大影响。2.上海市建筑科学研究院的评估报告和补充报告证实:三和花园4号楼29E室的跃层平板结构不仅承担着该跃层室内荷载,还承担室外露台荷载及顶层局部屋面荷载,因此安装系争浴缸对大楼局部结构的安全会造成较大影响。该鉴定人的鉴定资质和鉴定程序合法,鉴定结论应予采信。3.最高人民法院法释[2001]33号《关于民事诉讼证据的若干规定》第二十七条规定:“当事人对人民法院委托的鉴定部门作出的鉴定结论有异议申请重新鉴定,提出证据证明存在下列情形之一的,人民法院应予准许:(一)鉴定机构或者鉴定人员不具备相关的鉴定资格的;(二)鉴定程序严重违法的;(三)鉴定结论明显依据不足的;(四)经过质证认定不能作为证据使用的其他情形。”“对有缺陷的鉴定结论,可以通过补充鉴定、重新质证或者补充质证等方法解决的,不予重新鉴定。”上诉人顾然地没有足够证据否定上海市建筑科学研究院的鉴定结论,因此其要求重新鉴定的申请不予准许。4.顾然地提出,其对29E室跃层采取相关加固措施后就能够安装系争浴缸:这是一个在一审审理时没有提出的诉讼请求,已经超出二审审理范围,本案不予处理。综上,系争浴缸不能放置在三和花园29E室内。
On the second focus in dispute: GS Inc. was entrusted by the owners' committee to perform the management functions of Sanhe Garden, and was the real property manager of Sanhe Garden. This fact is not only proved by the evidence, but also proved by Randolph Guthrie's direct payment of real property management fees to GS Inc., which shows that he clearly knew about it. As a real property manager, GS Inc. certainly had the right to, in accordance with the “Regulation of Shanghai Municipality on Residential Real Property Management”, stop Randolph Guthrie from installing the bathtub in dispute. 关于第二个争议焦点。被上诉人巨星物业接受业主委员会的委托,对三和花园履行管理职能,是三和花园的物业管理者。这一事实不仅有证据证明,上诉人顾然地也以其直接向巨星物业缴纳物业管理费的行为证明,其对此是明知的。作为物业管理者,巨星物业当然有权依据《上海市居住物业管理条例》的规定,制止顾然地安放系争浴缸。
On the third focus in dispute: After Randolph Guthrie failed to timely install the bathtub in dispute, there would inevitably be relevant cost losses. But such losses were caused by Randolph Guthrie himself because he did not take the safety of the building and the real property management provisions into account before preparing for installing the bathtub in dispute. GS Inc. had no fault to prevent Randolph Guthrie from installing the bathtub in dispute, hence this part of losses should not be borne by GS Inc. 关于第三个争议焦点。上诉人顾然地未能及时安装系争浴缸后,必然产生相关费用的损失。但这些损失,是由于顾然地准备安装系争浴缸前没有考虑到建筑物安全和物业管理规定造成的。被上诉人巨星物业阻止顾然地安装系争浴缸的行为没有过错,故这部分损失不应由巨星物业承担。
JUDGMENT 
To sum up, the laws were correctly applied in the first instance, and it was not inappropriate to adjudicate not to support Randolph Guthrie's litigation claims, hence the judgment of the first instance shall be sustained. Therefore, Shanghai No. 2 Intermediate Court adjudicated as follows on July 25, 2003 in accordance with Item (1) of Paragraph 1 of Article 153 of the “Civil Litigation Law of the People's Republic of China”: 综上所述,一审适用法律正确,判决对颐然地的诉讼请求不予支持并无不当,应予维持。据此,上海市第二中级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(一)项的规定,于2003年7月25日判决:
The appeal shall be rejected and the judgment of the first instance shall be sustained. 驳回上诉,维持原判。
The RMB 514 Yuan of case acceptance fee in the appeal and RMB 12,000 Yuan of authentication fee in the present case shall be borne by Randolph Hobson Guthrie III.

 上诉案件受理费人民币514元和本案鉴定费人民币1.2万元,由上诉人顾然地(RANDOLPH HOBSON GUTHRIE III)负担。
 

     
     
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