On The Civil Law On The Possession

This article contains five parts. Chapter 1 elaborates the resource of possession;Chapter 2 and Chapter 3 mainly concentrate on the concept of possession. Chapter 4 studies its function and the last part presents the protection mechanism.Chapter 1 describes the attribute of possession as one kind of law phenomenon;meanwhile we'll discuss the characters of possessions in both of the Roman law and the Germanic law. By studying the evolution of possession in history, we can conclude that its natural attribute is the reason why possession can obtain the approval in the common law. Possession presents human's survival instinct and the result of power balance. It stands for some objective and solid economic activities served for human basic life. These activities means that subject occupies some certain quantity and certain type objects in a particular domain by their own will so as to enable the objects to be monopoly and absolute. The unique ethic attribute is the principal cause that Human's subjective will factor plays an important role of regulation in possession system. Judging the external potency of a fact behavior by the human subjective standard leads the involvement of will factor and penetration of moral strength as faith in the possession constitution. Thus, the protection in the civil law presents mainly the protection of possession will and manifests fully the attention to the human nature and in a certain meaning determines the civil law value goals and its system constitution. Meanwhile, in the Roman law the standard object is the commodity exchange relations of the slavery society as in the Germanic system are the self-sufficient agricultural economy relations of the feudalism society. If we take the exchange relationship as the civil law essence, the Roman law seems more advanced. However considering the economic attribute of possession and the circumstance that the sorts of countries make their possession system by establishing the interpersonal relationship with the property use as the core, the Germanic law gets the advantage. In the modern society, the economic attribute also displays the external potency which the various countries entrust to possession for the exchange benefit, and enable possession to be the adjustment tool of exchange order. In this chapter, we attempt to search the historic reason of the possession system formation and seek the solutions for some realistic questions by comparing the system in the Roman law and Germanic law under the possession evolution regular. In Roman time, along with thedevelopment of the slavery society economy and the augment of material wealth demands, the notion of 'private' is shaped and Real right becomes to solve disputes by defining property the legal system. As we all know, the exploration of new boundary and the discovery of new object always cause conflicts and even violence. Possession, at the beginning was used to arrange the rights of land use in kinds of ways and has become the supplement of property, however the system has finally separated from property and has developing gradually. Roman acquisitive prescription system was the outcome of the achievement of effectiveness and social relation stability with the aid of the good faith principle. In consequence, in the Roman law, the major characteristics are: the separation of possession and property, society harmony and order based possession system, the penetrations of the good faith principle. But in the Germanic law the early Germanic people, the idea of property confirmed by actual use value and self-sufficient economic feature enable the possession to represent a kind of adjustment and use relationship parallel with property and great attention to the transaction security. This point is just responding the legal demand of the modern economy development from ownership to use. Meanwhile, some historic inspections of publication function evolution, find that the possession function concentrates on the right estimation potency. The holder might use appealing right to protect his property without the proof of ownership so this right can avoid property invasion and fraud and maintain the society order. However, the possession function has little resemblance to the modern civil law transaction security. On the contrary, the Roman law and Germanic law have the strict formula to protect transaction security, such as manicpation and in iure cessio transaction manner in Roman law and from hands to hands in Germanic law. Therefore, the possession of publication function is the result chosen by the modern civil law value and its appearance is used to satisfy the transaction need and it is entrusted corresponding potency by the imperative law. Chapter 2 and Chapter 3 make the rational explanation of the possession concept in the static state and the dynamic, on the premise that the nature of possession is relocated. Chapter 2 describes the possession notion through the possession nature and constitution and studies the possession in the static state and relocates the possession internal constitution. A correct localization of possession nation is the premise of possession protection, however in the civil law, possession protection mechanism is merely significant to denied the right of possession, therefore traditionally, the concept of possession aims at the assets denied the right ofpossession. In the opinion of writer, the essence of chapter 2 exists in the facts relations under a certain denied the right state regulated by the natural and ethical attributes, as the adjustment scope of the Real right including the static ownership and the dynamic transaction order. Chapter 3 studies mainly the idea of the dynamic possession. Because of its monopoly and excusive and the external potency in movable property, possession becomes an efficient tool for property, possession becomes an efficient tool for objective faith regulation and transaction security. By analyzing the possession relationship in the two states, we can conclude the benefits from the two concepts and get an abstract nature -legal interests. Possession contains certain benefits which can be represented by legal values: in the static possession, these abstract legal values are represented as the peace and harmony of society, good faith, some moral concept and so on. Compared with the original possession right value, it manifests parallel conflicts, in protection manner it presents "benefits balance" means to consider the rights of the two sides. In the dynamic possession, the values contain transaction security. Compared with the original possession right value, it manifests exclusive conflicts and in protection manner, it presents "either this or that", means either the protection right or the third one's benefit. The concrete legal relations and conflicts of the legal relations display the Liszt's idea of legal interests in theories: Legal rights are the objects of the value that the law protects. It breaks the vexed theory of fact and theory of right which have been discussing since hundreds ago. This theory not only responds the fact-spoke why the civil law protect all the varying types of possession without distinction, but also answer the rights-spoke about its characteristics with common rights;at the same time, it gives an explanation to the questions which the legal fact-spoke cannot reply, just like: the internal intrinsic elements of human behaviors and natural facts combined with the regulation and standard of law, and theoretically the protection manner of possession has been resolved as the other rights in the civil law.Chapter 4 is about the discussion of the possession function. Whatever the angle of the adjustment of the property ownership and use or the influence of the right estimation potency to the society order, whatever the resource or the concept, the right entitled by law, whatever the goals of protect peace from violence, or transaction interests, security protection. It is the possession function is based on the relationship between possession and original possession right Then it can be say that possession has the attributes of manifesting original possession right strengthening theeffectiveness of it and transferring to it. When possession takes place for a legal reason, by the factual controlling, it strengthening the effectiveness of original possession right. In modern civil law ,rights are usually existed in the form of concept , the function of possession to manifest original possession right and transferring to it is not virtually true .To some extent, it is the choice of the legislators whose method is to entitle possession the function of manifesting right. Chapter 5 focuses on the protection mechanism of possession. The nature of possession ~ legal interests and different values embodied in the static and dynamic relationships make the civil law take special method which is different from that which is used to protect the legal interests. As is mentioned, the possession has the function of controlling (dominate) in the factual, so when infringed, people can self-preservation or resort to the real law. The legal interests, as the object of value, derived from possession, is abstract and sometimes vague, so it is important to establish the regulations principally and in some circumstances concretely. Since the value of the system of possession may be showed in different manners in various property relationships, the protection can also be founded in detailed descriptions in civil law.