Study On Several Problems Of The Usucaption System

The usucaption is one of the most important regulations in the civil law system. It comes out from the Roman law, and is regulated in the civil law code of France, German and Switzerland etc. And it is one of the essential parts in the law relating to the rights over things. As the establishment of the market economy, the usucaption plays a more and more important role in keeping the stability of the rights over things and maximizing the utilization of property. But because of different reasons, the General Principles of the Civil Law do not have this regulation. In theory, there are still many questions left. Today, we discuss the problem of the usucaption will greatly help the formulation of the law relating to the rights over things. This thesis discusses the necessity of the establishment of the usucaption and the basic structure of the usucaption, by comparing different ways of regulation in different countries, reconsidering different theories, observing and analyzing the problem in reality. This thesis in divided into three parts.The first part: the necessity of establishing the usucaption in our country. The establishment of usucaption is the reply to the request of the mordern civil law and its own value of secure, stability and efficiency also helps a lot to the establishment. The exercise of one right is connected closely with many other rights. To protect the real owner of right, the failure of exercising one right will lead to the destroy of the complex legal relationship and lead to the result of upsetting and confusing the society. Once this long existing role is ruined, the building of faith will be vanished. So the usucaption has the function of protect the economy order. At the same time, the usucaption will help make full use of thing, reduce the squandering of recourses. The usucaption, together with the bona fide acquiring, extinctive prescription, registration of real property and possession, forms the system of the protection of right on property. And because of the character of itself, the usucaption cannot be replaced. The second part: the legislation of usucaption in our country. The basic character of the usucaption is a way to get property. It is different from extinctive prescription. They should be regulated separately in the civil law. Basically, the usucaption is a presumption right based on possession. In the modern civil law, the realization the value of use is becoming more and more important. As a result of this, the usucaption is the role of making the fact of possession changed into the right of ownership. Possession is one of the most important constitutive elements of usucaption, so we should regulate the usucaption in the chapter of possession.The third part: the construction of the regulation of usucaption. Bona fide gestura as a subjective state of mind, lacks a standard to judge if it is bona fide or not. So in the usucaption, bona fide should not be taken as one of a constitutive element of usucaption. But even so, if the one who has the possession is cheated or forced to do so, he will not gain the ownership of the property. So if the one who has the possession of the property possesses the property publicly and continuously, he will get the ownership of the property. To keep the stability of economy and stop waste, movable property is more suitable to be applied to suscaption than real property. Besides superficies, as ownership, belongs to right over things, there is no reason to stop the application of usucaption to the superficies. To those registered real property, if the constitutive elements are met, the usucaption also should be applied. So dose the intangible property. The value of the civil law in our country put more attention on moral person, this is not suitable to the development of the modern civil law, and we should change this value to economy person. The usucaption is the reflection of this value.