A Study On The Issues In Retaining Possession

The true foundation of private property is the possession, which is a unexplainable fact rather than a right, only if the society has endowed the actual possession with legal provisions, does the actual possession is legal with the nature of private property. No matter the lawyers or citizens of no legal knowledge, everybody is able to sense the property interests inherent in the back of possession, which is a simple and straightforward term. It's hard to imagine whether the Property Law can also be called the cornerstone of the legal system of property if there isn't the possession system in the Property Law. Possession is a legal concept, which occupies a leading position in the four recognized empowerments composing the ownership, and without the possession, there can be no disposition to talk about the other three ones which are use, income, and disposal. Possession is the external identification to show ownership, and also an important means to realize the value of ownership. Possession is also a concept of life, and common civil subject to intuitively judge whether a property is yours, mine or his through the facts of possession. As for the possession, there seems to be a concavo-convex mirror between the fact and the law. If seen from a legal point of view, the legal properties of possession will be enlarged--right; if seen from a living point of view, the living properties of possession will be enlarged--fact, which leads us to a vague understanding of the concept of possession. The old system of possession has been playing an important role in the Property Law, so that legal workers are tirelessly questing about it up and down over the years. With the development of commodity society, the separation between ownership and possession is becoming more and more frequent, so the retaining possession is playing a more and more important role in stabilizing the social order, and protecting ownership is no longer the only value of the system of possession. In this way, we have to make a more suitable choice of the current social needs about the properties of the possession and the value proposition for retaining possession.Whether possession is a fact or a right? This question is the starting point of studying the system of retaining possession, and also a continually explored problem by the jurists since possession was brought into laws as a legal concept from the Roman law. Up till now, the point of view tending to take possession as a fact that is protected by law has been accepted by the mainstream view. The reason why possession is considered to be a fact by the majority of people mainly depends on the essential attribute of possession and its value of existence in the legal system. Possession is a complex and multi-stage process from capturing material wealth from the natural world to completely using up this wealth in the service of mankind. Thus, ownership can occur as possession in no matter which empowerment (possession, use, or disposal). It is visible that there are a variety of means to obtain possession, and people can possess the objects based on leasing, pledging, custody, and even raiding under the separation of ownership and the objects. Whether the possession of things can be legally recognized and protected directly affect the social order and peace. If retaining possession aims at maintaining social order and security, we will find that as long as the fact of possession exists, there is no need to provide separately other reasons for the protection of possession, because the possession of thieves are also subject to legal protection. The uncertainty and openness of legal concepts have given us a space to present a more reasonable explanation for possession, because the application of the law is always a value realization process. If the possession can be protected by law as a right, we first need to consider, what kind of rights does possession really belong to? If the possession can be protected by law included in any of the rights, we must suspect that whether there is still the necessity to establish the system of possession? If possession is to be protected as an independent right, we still have to explain what the foundation of possession right is? The view that only the right is worth of protection by law is being challenged, because rights should be based on the fact, and its legal value will lose its meaning without fact. Although no one has argued the phrase public order and good morals to be a right, it has great practical significance of the protection for public order and good morals. It is true with possession, and protected by law as a fact of life, it is the best way to achieve the legal value. The remaining question is how to protect against possession.Article 245 of Chinese Property Law makes it clear that the right of claim for retaining possession has provided us with another effective means to uphold the interests of law in addition to the right of asking for property rights and the right of asking for creditor's rights. In the event of the possession being destroyed by a third person, the embarrassing situation in which the possessor can not claim the right without the ownership has been completely broken. In Chinese Property Law, possessor hasn't been given the right to self-help, so it is obviously a legitimate way to exercise the right of claim for retaining possession through the public remedy. In proceedings of retaining possession, the validity of possession behavior should not be the reason for affecting the judgments. However, in the case of conflict between possession and the ownership, the value option for the system of retaining possession will be tested. Whether the lessor can recover the leasehold directly by force when the lessee does not pay the rent in accordance with the agreement? The writer believes that possession is a fact while the ownership is a right, and with difference in nature, there is no comparison of high and low ranks between them. In proceedings of retaining possession, the destruction of possession is what the lessee is based on to charge. When considering whether the lessee's request should be protected, first, it shouldn't be considered who, after all, is more entitled to possess the leasehold, but it is should be considered whether lessor's behavior of recovering leasehold by force is valid. From the perspective of maintaining social order and security, the self-relief acts are not worthy of promotion, but should be made to negative evaluation. It can be determined based on this point of view, that even if the owner enjoys a higher right to possess the object than the possessor, as long as the result of the approach taken improperly, the priority of protection should belongs to the fact of possession, rather than the rights of the owner, and it can not compensate for the destruction of possession even if the owner takes the ownership as the defense. As for the possession, protected by law as a fact, there is bound to appear conflict between the ownership and it under a variety of situations, and it has presented new challenges for lawyer in the process of dealing with this type of case. While retaining possession system has a long history, it only stopped at the theoretical level before the Property Law was formally promulgated and implemented in our country, and applied in practice in a relatively low frequency. After the promulgation and implementation of the Property Law, possession was incorporated in it as a separate chapter. The author, as a practicing lawyer, is pleased with this practice and also feels a trace of faint confused. The provisions in the Property Law on retaining possession and possession being too principled, results in poor operability of the system. This requires that the lawyers to sum up and grope experience in practice, making unremitting efforts for the establishment of retaining possession suitable for China's national conditions.