從物權法之觀點看二手菸害之問題

The Legal Issues on Second-hand Smoke: From the Viewpoint of Civil Law of Rights in Rem

吸菸傷害身體，而二手菸甚至三手菸更是有害健康。對於二手菸之防制，已有「菸害防制法」可資適用，對於二手菸害之民事上侵權行為損害賠償，因「菸害防制法」並未明文規定而應依民法侵權行為之規定，對於防制二手菸害之民事物權法手段，應依物權法所有權相鄰關係之規定。本文就二手菸害所涉及物權法之問題，分從不動產之使用收益以及不動產相鄰關係二個角度，加以介紹、分析。

Second-hand smoke has been known to cause cancer and other serious illnesses in non-smokers. The legal bases of the limits in smoking in Civil Law of Rights In Rem are Article 765 and Article 793. Article 765 of Civil Code regulates the limit in smoking in one's real property, which prescribes “The owner of a thing has the right, within the limits of the Acts and regulations, to use it, to profit from it, and to dispose of it freely, and to exclude the interference from others.” Article 793 of Civil Code regulates the limit in second-hand smoke from other's real property , which prescribes “The landowner is entitled to prohibit the discharge of gases, steam, odours, smoke, heat, soot, noises, vibrations and other similar nuisances from another person's land, building or other works, except such nuisance is insignificant or is justified by the shape of the land or by local custom.” This paper analyzes the legal issues on second-hand smoke from the viewpoint of Civil Law of Rights in Rem.