Asimmetrie del doppio regime delle distanze legali fra costruzioni e apporto di metodo

The paper starts from the jurisprudence on the point of legal distances between 'constructions' provided for by the Civil Code and by the supplementary regulations, thus representing: both the public component of the relative ratio (avoiding cavities between buildings, harmful to the general interests of hygiene, decorum and safety of the inhabitants), and the protection tools set up in favor of the neighboring owner who complains of the violation of that discipline, and the detail of the reference case. Except that, misunderstandings remain: the frequent reference to underlying 'non-public' interests; the annexation of the demands of hygiene and safety to the public or private sphere (in the latter case referring them to the dominical condition); thus generating different implications as to the 'scope-applicability' of the relevant regulatory data. With the related implications on the physiognomy of the subjective legal situations involved (including those of third parties). Hence, the need to prefer, rather than an approach by traditional formulas, an investigation of the relationships between principles. Therefore, the very ambiguities referred to have led to the belief that the discipline of private extraction, on legal distances in construction, is affected by a close correlation between interests of different extractions; as such, it should be (from time to time) interpreted-applied (also in terms of derogation or not), attempting to overcome a more general consideration of the dominical condition, made (at the same time) of sacredness and availability; leveraging the creep of the functionalization of the same. Therefore, the problems of harmony deriving from the coexistence of the private discipline (good neighborly relations) with the cohabiting public, general discipline (interest in an orderly urban planning), which is also peacefully 'mandatory', were addressed; developing further connections aimed at better representing a certain 'closed-mindedness' in grasping its 'complex' ratio and bringing out the inconsistencies of jurisprudential matrix. Thus the public law was examined: on the one hand, supplementary to the private sector; for the other, not immediately operating in relations between private individuals; but, above all, aimed at: in addition to preventing the formation of unhealthy cavities, the orderly building development of the territory. Of this fact: 'clearing' a further regime characterized by imperative-non-derogableness; also determining a double order of conditioning on private law, since: the interest (common to the two 'regulatory aggregates') in the protection of health, of this kind, certainly tends to take on a more marked public connotation; The same principle of '(temporal) prevention', as it is also applicable to constructions on the border in order to avoid dangerous cavities, is affected by the different (more severe) modulation of the 'minimum' regime. In spite of the basic sharing profiles, for cases (constructions with walls tending to front) and ratio (protection of citizens' health) of the aforementioned 'regulatory aggregates' of private and public law extraction, the difference in regime for measures (also considered mandatory) has led the jurisprudence to advance interpretative solutions that seem questionable, as they are 'accommodating': aimed more at ensuring coexistence between jurisdictions, than at responding to that instance of 'reductio ad unitatem' that should be intrinsic to the legal system. To this effect, by 'bending' the requests for substantive protection, connected to that unitary structure, to prerequisites of procedural legitimacy. Both disciplines (of private and public law extraction), in qualifying and protecting the common value (health), while imposing different distance limits between buildings (respectively, three and ten meters), present themselves (or are reputed) as (tendentially) 'mandatory' (also by local regulations) and in this sense assimilated (as demonstrated by the jurisprudential consideration reserved for 'computable sports'); at that point, it is a question of determining how this is reconciled with the greater 'severity' of the public regimentation. In the face of this criticality, the jurisprudence has intervened with artifices, elusive of the aforementioned common interest in health. The fact is that the provision of different distance limits and the non-derogable nature of the (stricter) limit of administrative law, imply that the civil limit is resolved reductively (in the same way as a 'residue' connected to a certain historical meaning of 'neighbourly relations'), without entailing a (corresponding) downsizing of the sphere of interest attributable to the subjective right: since any distance of less than ten metres constitutes an illegality; Therefore, not only in the event of violation of the minimum distance of three meters provided for by the Civil Code (or of the greater one contemplated, by postponement-integration by local regulations), the interested party will be allowed to appeal to the ordinary judge for the purpose of restoration and restoration. Proceeding therefore in a 'proactive' direction, it seemed that the critical issues described above have their roots in a traditional conception of legal situations, subjective, now obsolete: starting from associating, to the legitimate interest, the connotation of 'indirect', 'inferior' and/or in any case 'different' protection of the substantial interest, with respect to the active legal positions (rights) that compete by virtue of the rules on legal distances between constructions. Hence: not wanting to put the preference between distinct orientations to the 'living law' (at least, to its less 'equipped' versions); the need to advance a dogmatic 'revisitation', in an epistemological key, of the theories of both the legal norm, and of subjective legal situations, and of the relationship between the substantial interest of the individual and the public interest, has become a priority. Thus returning to the specific object of the discussion, the following have been intervened: on the phrase 'neighborly relations', associating it no longer with a "concept-substance" but with a "concept-function"; on an update of the legal system according to the canons of a 'logic of differentiation', so as to enable it to respond to the new demands that are posed to it by modernity; also, on a review of the figure of the subjective right, so as to admit 'correctives' such as to support the evolution of the relationships between the principles (from time to time) involved in the structure of the relevant relationships between the interests of the associates and also between these and those that usually refer to the public administration. Therefore, it has been made possible to configure the subjective legal situation of the 'neighbours' as of legitimate interest: making use of the 'applications' of the 'operational logic' (of costs/benefits), according to the dictates of 'critical rationalism', from time to time, a reasoned partial sacrifice of the standards envisaged to protect the interest in health, in favour of that of the orderly development of the territory, would be admissible; this, by way of a 'circular' interpretation, such as to put an end to the current 'double regime', in favour of a 'basic' regulation of distances between buildings, unitary and at the same time elastic, which admits exceptions to the 'minimums' as long as they are adequately justified and motivated. With repercussions also in terms of protection: in terms of completeness-penetration of judicial review.