On The Construction Of Indirect Possession In China

Possession system is an ancient system,which originated from Rome law and Germanic law.The "Possession" in the law of the Rome means the actual power that man can control and dominate the subject.And the "Possession" in Rome has nothing to do with right and only be a fact.On the contrary,the Gewere of Germanic law is closely connected with property right.Indirect possession is the first time be confirmed by the "German Civil Code".And it is the fusion of Germanic law and Rome law.Correspondingly,China's "property law" does not expressly provided indirect possession,but the system has penetrated into the various systems of property rights.It has the same function of direct possession.Correspondingly,indirect possession is not expressly provided in Chinese "property law".However it has penetrated into the various systems of property rights.Therefore,whether it is necessary to introduce the indirect possession system and how to construct the indirect possession system has become an urgent problem to be solved.In the first chapter,functions of indirect possession are analyzed in the context of property law in our country.Based on the analysis we can decide whether it is necessary to introduce indirect possession.With the development of society and in order to make the best use of subject,the phenomenon of separation of ownership and right to the use the subject is becoming increasingly prevalent.Therefore it is quite important to providing protection of indirect possessor.For the convenience of the transaction,more and more people choose to transfer the ownership through transfer the indirect possession.In addition,the indirect possession plays an indispensable role in the system of bona fide acquisition,possession presumption and acquisitive prescription.Hence we can see the necessity of the indirect possession system in our country.In the second chapter is the nature of indirect possession analyzed.Indirect possession and direct possession have the same function in protection,transfer of the property right,bona fide acquisition,and presumption of ownership.It can be considered that the nature of the indirect possession and the direct possession is essentially the same.And the nature can be used as the theoretical basis of the above functions.It can be found that in fact,the control power is the theoretical basis to support the above functions.The view of publicity as the nature of indirect possession is questioned.Indirect possession,like direct possession,has the power of control and its control is realized by the actual holder.It is through the return of the right of claim and possession of the media of the media who have the meaning of these two elements,to ensure that the indirect possessor of the actual control.It is through the two elements(claim of restitution and the will of intermediate possession)to ensure the actual control of the indirect possessor:In the period of the possession,the direct possessor maintains the status of possession in accordance with the will of the indirect possessor;Under certain conditions,the indirect possessor returns the subject according to the right of claim for restitution,which make the indirect possessor resume direct control.Through the analysis of the function and essence of indirect possession,it is proved that the system of indirect possession is needed in our country.The third chapter focuses on how to construct the system of indirect possession in china.The direct possession of the actual holder,the imperfect possession will of the actual holder,claim of restitution,the possession will of the indirect possessor are the essential elements of indirect possession.According to the general view,intermediate possession relation and will of intermediate possession are the two difficult elements.The article makes an in-depth analysis of the two elements.The factors of intermediate possession relation are one by one argued.Its factor of specificality is weakened by the silent declaration of intention.The reason why we weaken the effectiveness of the basic legal relation but still stressed that the parties need to enter into legal relations is to guarantee the existence of possession will of the indirect possessor according to the agreement.Finally,the intermediate possession relation return to only two factors: claim of restitution and possession will of direct possessor.The will of intermediate possession is a will in reality.And the will reflect the actual control.Any change of will may lead to the loss of indirect possession.But the change needs to have the external identifiability.On the end,the reason why our country did not need to introduce the indirect possession system when the property law was enacted is criticized.Combined with practice,this paper expounds the judicial confusion existing in our country due to the lack of explicit regulation of indirect possession.Therefore,on the basis of reference to the legislation of various countries,our legislative proposals have been made.