案情简介
1.基本案情
2020年8月，发包人通过公开招标确定被告为案涉输电线路工程施工承包人，双方签订施工合同后被告开始施工。2021年12月，原告向法院提起诉讼，主张被告于2021年9月施工架设的高压电力线路经过其房屋，该线路高度不足，存在电磁辐射等给原告生命和财产带来的巨大安全隐患，要求被告赔偿其16万元。
2.处理结果
收到传票后，弘石律所法风管团队承办律师代理被告进行了答辩和举证。在确定的开庭当日，庭审开始前，法风管团队承办律师在与原告沟通过程中，有效释法、明理、劝解、疏导，最终原告申请撤回起诉，法院裁定予以准许。
法律评析
本案系消除危险纠纷，属于物权纠纷案由，案件主要争议焦点在于：1.被告是否对原告存在侵权行为？2.原告的损失如何确定？
争议焦点一：被告是否对原告存在侵权行为？
被告代理人认为，被告并非本案适格被告，更未实施任何侵权行为。
一方面，被告作为承包人与发包人签订案涉线路工程《施工合同》，发包人依法将案涉线路工程发包给承包人完成。而本案案由为消除危险纠纷，属物权纠纷。承包人并非涉案电力线路的所有权人，仅为施工单位，对原告的房屋并未构成妨碍或损害，因此，承包人不是本案适格被告。
另一方面，即使抛开被告是否适格问题，本案被告亦不存在侵权行为：首先，承包人并未实施任何违法行为或者存在过错。发包人就案涉工程依法向政府部门办理了核准批复等手续，并依法通过招标程序确定承包人为案涉工程项目中标人，双方于2020年8月签订《施工合同》，承包人按照《施工合同》施工的行为合法有据，不存在任何违法行为或者过错。其次，案涉线路并未正跨原告房屋，线路垂直投影与原告的房屋距离为3.5米，完全满足国家标准《110kV-750kV架空输电线路设计规范》（GB50545-2010）第13.0.4条“输电线路边导线与建筑物之间的最小水平距离不小于2.5米”的要求，对原告的房屋未形成任何妨碍或损害。原告亦未提供任何证据证明其房屋遭受了损害。再次，就原告提出涉案电线存在电磁辐射给其造成损失的主张亦缺乏科学依据以及相关证据资料证实。故原告诉称侵权事实并不成立。
争议焦点二：原告的损失如何确定？
本案中，原告起诉金额为16万元，但并未提供任何证据证明其确实存在16万元的损失，对于该16万元的构成等亦无法进行有效说明。根据“谁主张，谁举证”的民事诉讼证据规则，其损失金额依法不能确定。
管理启示
1.工程项目应当严格按照法律及相关标准的要求进行建设
一方面，工程项目建设前，从项目审批、环评、水保、规划到验收等环节，都应依法依规开展，特别是施工环节，发生对相关方房屋等造成妨碍的情况时，应当及时与相关权利人进行协商并依法给予补偿，并签订书面补偿协议，同时在签订的补偿协议中明确约定该补偿为一次性补偿。另一方面，除了建设手续需合法外，具体建设的工程项目应当满足国家标准、行业标准的要求，确保工程项目质量达标、品质合规。
2.行使诉权需有充分依据
本案中，原告对于其所主张侵权行为、损失金额等均完全凭感觉、凭想象进行主张并提起诉讼，就其提供的相关证据资料显然无法支撑其诉讼主张，难以被法院所支持。因此，进行诉讼活动，无论是单位或是个人，在提起诉讼前，一定要充分了解“谁主张，谁举证”的民事诉讼证据规则，务必要充分结合证据情况分析诉讼风险，最终决定诉与不诉、如何诉讼，包括如何举证等，避免盲目起诉后不被支持，徒增诉累亦浪费司法资源。
3.处理纠纷事项要注重方法和策略
就本案，通过原告提交的起诉状以及证据资料，可以明显看出其此次诉讼活动相当不专业，原告很难通过诉讼活动实现其所主张的所谓权益。对此后果，原告未必不知晓，但其仍然起诉，无非是对诉讼结果存在侥幸心理，或者是存在斗气心态。处理如同本案类型的纠纷案件，要注重方法和策略，善于“用管理的方法解决法律问题”，而若仅简单粗暴地讲法条，则难以起到处理问题并长效化解矛盾纠纷的效果。对此，作为代理人对于类似纠纷的处理，笔者提出几点意见：一是在诉讼过程中要给处于弱势的对方当事人以尊重，营造平等沟通氛围，切勿以己方所占据的专业、社会地位等优势攻击、嘲讽、轻视对方。二是要善于倾听对方的心声，了解案件的前因后果，后续才能有针对性地提出解决方案和意见。三是存在己方不应当承担任何责任的情形，可以给予对方同情和理解，但对于不予赔偿或者补偿的立场要鲜明，态度要坚决，避免相对方形成误判导致陷入调解僵局。四是要善于察言观色并开展有效疏导，通过对方的语言以及行为举止，揣摩对方真实想法（是想要讨个说法还是仅想获得赔偿，或者有其他的考量因素），就对方担忧的事项给予耐心详细的解释说明，在解除其担忧的同时解释其诉求难以被支持，通过有效疏导，力争大事化小、小事化了，最终能够通过调解或者原告撤诉结案并化解矛盾。
本案案件承办人：王武、许灿虎律师。
Case | Disputes arisen because of the transmission line construction near private house, the lawyer of G-stone Law Firm made the householder withdrew the prosecution through explaining the law and the reason
Case Brief
1. Basic facts of the case
In August 2020, the contract-offering party identified the defendant as the construction contractor for the transmission line project in case through public bidding, and the defendant began construction after two parties signed the construction contract. In December 2021, the plaintiff filed a lawsuit to the court, claiming that the high-voltage power line erected by the defendant during the construction in September 2021 passed through his house, which was not high enough and had electromagnetic radiation and other great safety hazards to the plaintiff's life and property, requesting the defendant to compensate 160,000 yuan.
2. Processing results
After receiving the summons, the lawyer of legal risk management team from G-stone Law Firm represented the defendant to reply and put to the proof. On the day of the trial, the lawyers of legal risk management team in the process of communication with the plaintiff, effectively explain the law, reason and persuasion before the trial began. Finally, the plaintiff applied to withdraw the lawsuit, which was ruled and granted by the court.
Legal Analysis
The case is a dispute to elimination of the danger, which belongs to property rights dispute. The main issue in the case is: a) Whether the defendant has infringed on the plaintiff? b) How to identify the plaintiff's losses?
Issue 1: Whether the defendant has infringed on the plaintiff?
The defendant's agent argued that the defendant is not the proper defendant in this case and not commit any infringement.
On the one hand, the defendant as the contractor, signed Construction Contract with contract-offering party for the line project, the contract-offering party legally contracted the line project to the contractor to complete. The case is a dispute to elimination of the danger, which belongs to the property rights dispute. The contractor is not the owner of the power line, only as the construction unit, and not constitute obstruction or damage to the plaintiff's house. Therefore, the contractor is not the proper defendant in this case.
On the other hand, even putting aside the question of whether the defendant is qualified or not, the defendant also did not infringe. First of all, the contractor did not commit any illegal acts or had any fault. The contract-offering party had gone through the formalities of approval and reply to the government departments for the project according to law, and the contractor is determined to be the winning bidder of the project through the bidding procedure. The two parties signed the Construction Contract in August 2020, the contractor's construction in accordance with the Construction Contract is legal and justified without any illegal acts or faults. Secondly, the line did not cross the plaintiff's house, the distance between the vertical projection of the line and the plaintiff’s house is 3.5 meters, fully meet the requirement of national standard 110kV-750kV Overhead Transmission Line Design Specification (GB50545-2010) Article 13.0.4 stipulates that "The minimum horizontal distance between the transmission line curb wire and the building shall not be less than 2.5 meters", the plaintiff's house did not form any obstruction or damage. The plaintiff also did not provide any evidence to prove that his house suffered damage. In addition, the plaintiff's claim that the line has electromagnetic radiation to create losses also lacks scientific basis and relevant evidence to confirm. Therefore, the plaintiff's claim of infringement is not established.
Issue 2: How to identify the plaintiff's losses?
In this case, the plaintiff sued the amount of 160,000 yuan, but did not provide any evidence to prove that it actually had a loss of 160,000 yuan, the composition of the 160,000 yuan cannot be effectively explained. According to the civil litigation evidence rule of "who advocated that, who presents evidence", the amount of loss cannot be identified according to the law.
Management Inspiration
1. Engineering projects should be built strictly accordance with the requirements of the law and relevant standards
On the one hand, before the construction of engineering projects, project approval, environmental assessment, water protection, planning and acceptance, should be carried out in accordance with the law. Especially the construction, when the occurrence of obstruction to the relevant party’s house, should promptly negotiate with the relevant rights holders and give compensation in accordance with the law, and sign a written compensation agreement. At the same time, in the compensation agreement signed, it is clearly stipulated that the compensation is one-time compensation. On the other hand, in addition to the construction procedures need to be legal, the specific construction projects should meet the requirements of national standards and industry standards to ensure that the quality of the project reachs the standard and quality compliance.
2. Exercise of the right to litigation requires sufficient basis
In this case, the plaintiff's claim of infringement, loss amount, etc. and filing the lawsuit were completely based on feeling and imagination, the relevant evidence materials provided obviously cannot support his lawsuit claim, which is difficult to be supported by the court. Therefore, in litigation activities, whether units or individuals, before filing a lawsuit, must fully understand the evidence rules of civil litigation "who advocated that, who presents evidence", must fully analyze the risk of litigation with the evidence, and decides to sue or not to sue, how to sue, including how to prove, etc. So as to avoid being unsupported due to blind prosecution，which also increase the burden of litigation and waste judicial resources.
3.Handling dispute matters should focus on methods and strategies
In this case, through the complaint and the evidence submitted by the plaintiff, it is obvious that this litigation activities is quite unprofessional, the plaintiff is difficult to achieve the rights and interests through litigation activities. The plaintiff may not be unaware of the consequences, but he still sued because he was lucky about the outcome of the lawsuit or had a belligerent attitude. To deal with the same type of dispute cases, we should pay attention to methods and strategies, be good at "using management methods to solve legal problems". If only simple and brutal to talk legal provisions, it is difficult to deal with the problem and the long-term effect of resolving conflicts and disputes. In this regard, as an agent for the handling of similar disputes, the author offers a few observations: a) In the process of litigation, we should give respect to the other party who is in a disadvantaged position, create an atmosphere of equal communication, and never attack, ridicule or belittle the other party with the professional and social status advantages occupied by our party. b) We should be good at listening to the other party's voice, understand the causes and consequences of the case, so that the follow-up can be targeted to propose solutions. c) If there are circumstances in which our party should not take any responsibility, we can give each other sympathy and understanding, but the position on not paying compensation or compensation for losses should be clear, attitude should be resolute, to avoid the other party to have a misjudgment leading to the mediation deadlock. d) We should be good at reading the person's mind and conducting effective persuasion. Through the other party's language and behavior, we should figure out the other side's real thoughts (whether they want to ask for an explanation or just want to get compensation, or have other considerations). Give a patient and detailed explanation of the other party's concerns, explain that their appeals are difficult to be supported while relieving their worries. Through effective guidance, try first to make their mistake sound less serious and then to reduce it to nothing at all, and finally settle the case and resolve the contradiction through mediation or withdrawal of the plaintiff's suit.
The case undertakers are lawyer Wang Wu and lawyer Xu Canhu.
本期撰稿：许灿虎、杨 芹
本期译稿：张 川、解 佳
本期编辑：尤 喆
