The Research Of Possession Arising From An Obligatory Relationship On The Principal Of Relativity Of Obligation

The possession arising from an obligatory relationship is that the counterpart possesses movable property or immovable property based on the obligatory relationship. It is a possession status that is sourced from obligatory rights. In the dualistic rights system of property right and obligatory right, possession from obligatory right has the different meaning relatively to the possession from property right; however, both of them are acting the role of assets usage and ownership, forming the dualistic mode of assets possession and utilization. The possession from obligatory right is an obligatory right, and intrinsic value of obligatory right is the relativity of obligation, therefore, the possession is a reflection of an obligatory relationship. It is the obligatory right which entitles obligee to possess, use or profit towards property.Different from the normal obligatory rights, the possession from obligatory right is more likely to “dominate” the property because of “the combination of possession and obligatory right”. As a result, there are many who do not agree with the relativity of the possession from obligatory right both in judicial practice and theoretical research area. For example: they hold the opinion that obligatory right cannot against property right, but the possession from obligatory right can do against the right of claim to request the return of assets; they point out that obligatory right has the nature of equality, but the possession from obligatory right gains priority of claim in multiple obligatory rights; obligatory right can only claim right to the other party, but obligatory possession can make protection of tort towards the third party. From the above opinions, this dissertation summarized that the possession from obligatory right has the attributes of antagonism, priority and absoluteness in the protection of tort. All the points of view presented indicate that the possession from obligatory right makes breakthrough of the principal of relativity of obligation, which will make it as an important research content in “transferring obligatory right into right in rem”.It needs to get it right about basic theory of the principal of relativity of obligation and its breakthrough. The relativity of obligation is the nature of obligatory right and the foundation of obligatory right's compatibility, equality, non-publicity and so on. The breakthrough of the relativity of obligation is that the obligation validity can have effect on the third party. The relativity of obligation is the result of formal rationality; the breakthrough of the relativity of obligation is the result of substantive rationality. The relativity of obligation and its breakthrough indicate the relationship between individual-oriented and society-oriented in civil law. In the construction of civil law system, individual-oriented focus on the logic and structure inside the right system, society-oriented focus on the influence of social policy and values.The antagonism of the possession from obligatory right means that the obligatory right can prevent the claim of return of assets, including the obligee can reject to returning movable property or immovable property towards obligor or preventing third party from returning assets when transferring movable property. The antagonism of obligatory possession does not act as the role of property right validity; it is an implication of obligation validity between two parties. The existing civil law theory can fully explain “the antagonism of obligatory possession”; the dualistic rights system of property right and obligatory right should not easily be repudiated. When obligor claims property right according to property law, obligee can reject it. It can be explained by the retention capacity of obligation and the theory of mutual-effect claim concurrence. But the reason of lessee against proprietor from claiming the return of assets based on “sales can not devastating lease” because of the statutory assignment of obligee rights from the habitation protection policy.The priority of the possession from obligatory right means it has the priority claim in multiple obligatory rights. The priority and antagonism of obligatory right are two different propositions. The antagonism of obligatory possession focus on obligee rights against claim on the returning of assets. The priority of obligatory possession is solving the problem of the order of obligatory rights. The priority of obligatory possession is a question discussed in the law of obligation; it is not related to any domination or exclusive validity. When the prestation of obligation is possessing, obligee who has already obtained the contract interest gains the priority of possession towards other parties, the lease contract is an illustration under this situation. However, if the prestation of obligation is registration, real estate business contract for example, it does not have the reason of priority of possession from the perspective of both the obligatory right's equality theory and the effects of contract performance.The absoluteness of the possession from obligatory right under protection of tort is a question argues whether obligee can make protection of tort and litigation towards the third party when the third party invades the property. It should be distinguished between protection of possession and protection of obligatory right when the third party invades the property. In the protection of possession, people who has the obligatory possession owns the right of contemporary protection, including right to claim for reversion, eliminating disturbance, preventing disturbance and compensation. In the protection of obligatory right,the obligee has the final ruling protection, but it can only ask for the obligor because of the relativity of obligation. Besides, the owner has the petition right on property. The protection of possession cannot antagonism the protection of right of obligatory or property.In conclusion, the core viewpoint of this dissertation emphasizes that in the dualistic rights system of property right and obligatory right, the possession from obligatory right is a right based on obligation relationship, it should be discussed and argued within the scope of relativity of obligation. We need to explain the question of the antagonism, priority, and absoluteness of obligatory possession and those phenomena of “transferring obligatory right into right in rem”. The question of validity of obligatory possession can be answered under the obligation relative relationship, it is not necessarily admit the property in rem of obligatory possession, and can also be explained by the theory of relativity of obligation and the compatibility, equality, acceptance, retentivity, publicity system of obligation and so on.