Research On The Tort Liability Of Possession

The possession system is long-standing and complicated. As for human life, all the important things may be related with explanation to the possession system. As concerned in Civil Law, possession is actually foundation of property law system. The importance of possession not only lies in its basic position of ownership as well as other real right, but also lies in a series of systems established centered on its effect such as the presumption effect of possession, acquisition in good faith and reinforcement on effect of obligatory right etc. Discussion on the nature of possession has triggered long dispute in jurisprudential circle. Because this is not a senseless metaphysics theory at all. It involves measurement on rights and legal interests as well as protection on possession. It is generally recognized that possession represents social peace order as a kind of defacto management and domination of things, thus even if the fact does not conform to the vested rights, private and unauthorized infringement is disallowed by the law. Protection on possession is the core of the whole possession system. All things about possession system generated around the protection on possession, as things'defacto domination or management changes constantly, the whole society would be in a state of disorder and confusion if it gains no recognition and protection. Protection on possession can be divided into protection by property law and protection by obligation law. Protection by property law mainly includes self-help right and possession claims right. Self-help right could be further divided into self-reliance defense right and self-reliance recall rights while possession claims right could be further divided into right of claim of restitution; right of claim for removal of possession interference and right of claim for prevention of possession interference. As for protection on possession, Chinese "Property Law" rarely mention while most articles are designed for protection of original rights. Besides, Chinese "Property Law" does not stipulate the self-help right of possession and right of claim for prevention of possession interference which shows the weak point of research. Protection by obligation law mainly involves protection on tort law and unjust enrichment system while research on the liability for tort of possession is the key point of this dissertation. The second half of item 1 of Article 245 of Chinese "Property Law" stipulates " and where any damage is caused by virtue of encroachment or interference, the possessor has the right to require compensations. " which is the most direct provision on liability for tort of possession.However, that article as well as the Article 2 of "Tort Law" does not explicit the basic issues of right of claim for infringement damage compensation of possession. Secondly, the dissertation studies the doctrine of liability fixation of liability for tort of possession, infringement act as well as security liability mode of possession etc. Finally, the dissertation studies the limit of compensation of damage compensation for possession and whether it differs due to authorized possession or unauthorized possession,...