Return To Claim Claim Study

In the juridical practice,the lawsuit of rights to claim for returning original has many problems,such as cases run adrift from judgment basis,cases run adrift from judgment contents,proof of difficulty and uncompleted property preservation measures of defendants' subject matters of actual possession,and so on.These forces us think over theoretical problems about rights to claim for returning original as well as regurgitation-feeding practice through theory.From the perspective of legal principle,rights to claim for returning original means that owners of property have the rights to put request of returning their real estate or personal property from people who have no rights to own them.The ethical basis of rights to claim for returning original lies in that it's human's instinct demand to own and use property,so it meets the basic justice conception to esteem this ownership and use.The economic foundation of rights to claim for returning originals lies in the scarcity of resources and the hypothesis of economic man.Putting definition on property rights is the premise of rights to claim for returning original,and this definition is able to reduce external effect and transaction cost.Therefore,rights to claim for returning original will make for increasing efficiency.Besides,rights to claim for returning original itself is the internalization for external effect of property rights transaction.The social foundation of rights to claim for returning original lies in that,in civil society,giving rights to claim for returning original terms is a great esteem to subject of rights and has special necessity in modern society.In continental legal system countries,rights to claim for returning original has gone through a series of development and evolution,from appealing for returning the original to appealing for just claim of returning the original and then to claim for returning original.In this process,Roman law's claim for returning the original is the most important basis.While some related institutional factors in Germanic law and Canon law also play an important role.The rights to claim for returning original in civil law system countries focuses on the property claim of returning the original.Meanwhile,according to mutatis mutandis stipulations and judicial precedent practice in the corpus juris,extend it to jus in re aliena and develop it into general rights to claim for returning original.However,in civil law system countries,not all rights to claim for returning original are guided into civil corpus juris.But,even if there's no rights to claim for returning original terms stipulated in civil corpus juris,some countries shall recognize its existence in the theories and judicial precedents.During its developing period,the system of rights to claim for returning original not only carried substantial effect on civil law system,but also carried important effect on the form of returning the original in common law system.Therefore,returning the original systems in common law system has original relation with which of the civil law system.It can be referenced in new developing countries when compiling civil corpus juris or perfecting civil corpus juris system.Considered from constitutive elements,the holders of rights to claim for returning original is the person who lost his property or who can exercise the ownership of property,specifically including: the owner who lost his possession,the person with jus in re aliena who lost his possession and the person who can exercise the ownership of property according to the law who lost his possession,however,the pure possessor who lost his possession cannot claim rights for returning original.The counterpart of rights to claim for returning original is the existing unauthorized possessor,namely,the obligor of rights to claim for returning original is the possessor in the first place;secondly,there is no origin of rights for the possession;finally,the possession without the origin of rights still exists when the oblige advocates.The object of rights to claim for returning original is an objective existence original which is not possessed by the relative person.If the original has been lost,the property will be eliminated because of the destruction of the object.At this time,the rights holder can only claim the unauthorized possessor to make compensation for breach of contract or tort damages.In addition to the property holder who can require the unauthorized possessor to return the original based on rights to claim for returning original,German Civil Code,the “Civil Code” of Taiwan region of China,the Property Law in China,etc.set up the usufruct rights of claim for returning and the rights of claim for damage compensation for the property holder and set up the rights for claiming expense reimbursement for the possessor.These rights of claim are the supplements to the rights of claim for returning the original,and also take the existence of the appeal of returning the original as the premise.Therefore,it belongs to the category of legal effect of the rights to claim for returning the original.Abiding by relationship rules of owner--possessor in German Law,when usufruct returning,compensation for damages and expenses reimbursement and other issues are investigated,consider differently according to the goodwill and malevolence of the possessor.The general principle is that malicious possessor shall bear aggravated responsibilities.However,based on the protection of the rights to possession and the denial of unauthorized possession,the Property Law in China uniformly stipulates that no matter the well-meaning possessor or the malicious possessor shall return all the fruits.In the terms of compensation for damages,if any damage or loss caused by the well-meaning possessor during chose in possession in unauthorized possession period,the well-meaning possessor is only liable for damages within the scope of subject matter being damaged and lost.Under the circumstance of contract-based and transfer of possession,the competition and cooperation of rights to claim for returning the original and rights to claim for returning in contract(rights to claim for returning leased property)shall happen in case that the possession term stipulated in the contract terminates,for example,the lease contract expires while the leasee(the occupant)refuses to return the leased property.In the case that the possession of the obligee is invaded,the competition and cooperation of rights to claim for returning property and rights to claim for returning the original in the tort liability shall happen.However,it's more favorable to choose the rights to claim for returning the original in case of competition and cooperation between them if taking into account that the rights to claim for returning property is inferior to the rights to claim for returning the original in the aspect of prescription and burden of proof.The rights to claim for returning property still has its applicability because it is also suitable for the restitution of other assets besides the property rights.In the case that the heritable legacy after the death declaration is movable or immovable property,the competition and cooperation between the rights to claim for returning the original and the rights to claim for returning property of the person with death declaration revoked can also happen.In addition,the competition and cooperation may happen between the rights to claim for returning the original and the claim rights in negotiorum gestio and the claim rights of partial reinstatement.In the case that there's severability in act of debt and juristic act of real rights is effective,there will be the wide application of the claiming rights of unjust enrichment and narrowed and limited application of the rights to claim for returning the original in case of the approval of the principle of abstraction of juristic act of real rights while there will be the wide application of the rights to claim for returning the original and narrowed and limited application of the claiming rights of unjust enrichment in case of the disapproval of the principle of abstraction of juristic act of real rights.Both of them,with the principle of abstraction of juristic act of real rights as the medium,have a reciprocal relationship.But anyway,the rights to claim for returning the original still has existence value with extreme independence.The matter of cases for the rights to claim for returning the original appears diversified.In addition to the most basic dispute of restitution of the original,the dispute of return of company license,the dispute of recall rights and other disputes are the matter of cases that may be chosen in the case of the claim of restitution of the original.In the case of the rights to claim for returning the original,the demurrer of the accuser(the obligee)mainly comes from its demurrer in the substantive law,of which the pleas mainly include the demurrer of non-possessor,the demurrer of the source of legitimate rights,the demurrer of acquisition in good faith,the demurrer of prescription,the demurrer of illegal reason,the demurrer of social appropriateness,the demurrer of exercising rights and implementing duties and other demurrers.In the event of a dispute of restitution of property,the factum probandum for the accuser to claim the restitution of property and the fruits includes: the accuser has the property or has the same legal status with the proprietor,the accused possesses the subject matter,the possession of the accused has no rights source and the fruits arises from the subject matter during the possession of the accused.In these factum probandum,the burden of proof for the rest factums except for the factum “the possession of the accused has no origin of rights” shall be borne by the accuser.In the process of factual identification,the judge also needs to exert certain subjective role and implement the judicial inference to some factums.In the case of the rights to claim for returning the original,there're corresponding benchmark for judgment of rejecting the suit,judgment of rejecting the claim,judgment of restitution of the original and judgment of alternative claim.In the future,the judge should properly develop the judicial initiative and implement the judicial inference of factum to some factum probandum in accordance with individual cases and explain that whether the accuser adopts preservation measures and whether the accuser proposes alternative claim in adherence to the general rules of allocation of burden of proof at the same time.