The Tort Liability Of Against The Possession

There are three legal mechanisms to protect the possession of one's own, i.e., the right to the owner's self defense, the rights to claim for retaining possession and for the protection based on the law of obligation. The purpose of the former two means is to protect the owner from illegal seizing (occupying) or damaging. However, it doesn't concern about the right to acquire the compensation from the damages. While the claim for returning the unjustified benefits in the law of obligation requires the transgressor to return the illegal benefit, but the owner cannot asks for the compensation at the time. Nonetheless, the interest upon the subject by the owner is underlying the alleged possession itself, and such sort of interests has frequently been approved by the laws. Therefore, it's necessary to provide the owner the protection based on the tort law. As to whether the possession should be accorded the protection from the tort law, usually scholars hold affirmative positions. But relevant monographs about the measurements of carrying out the protection and the scope of the damages' compensation are really rare. Moreover, there's no unanimous standing among law scholars. Regarding the tort responsibility against the illegal possession, the discussion as following will be presented with four chapters:In Chapter I the discussion is about whether it's necessary to protect the owner by the tort law. First, the author will introduce various measures as to protecting the owner and their effects. Then, the author will explain the limits of those measures and the necessity to carry out such means of protection.In Chapter II the discussion is focusing on if the possession could be the object of the tort behavior. First, the author will define the legal features of the possession in China. Second, the author will combine the domestic legislation, scholars'standings and principles of jurisprudence and those in other countries, and clarify the rights and legal interests supposed to be protected by the tort law. Third, according to the verification of the proposition that possession is characterized as one type of legal interest (broadly), the possession should be protected by the tort law.In Chapter III the author will analyze the subjective components of those torts against the possession. In Part I the author said the subjective element against the possession is deliberate normally; While further in Part II, the author will based on varied types of possession narrate the reason of negligence against the possession by creditor's right should be imposed liability, but negligence against the possession by rights and unauthorized occupying are the exceptions.In Chapter IV the author will bring out the issue of compensation against the possession. This chapter is divided into five sections, i.e., the capability of possession, necessary cost, useful expenditure, the time limits as to retrieve the possession and physical damages, all of which will be deliberated. The purpose of the above discussion is to make clear to the scope of the compensation, and for what reason the transgressor can be exculpated from the responsibility.