Research On The Basic Problems Of Possession

What is the nature of possession? What is it composed of? It has been a heatedly debated issue in the field of law, and until now no agreement has been reached yet. Moreover, now China has been engaged in enacting Chinese Law of Things, and possession will be a compositive part of Chinese Law of Things. Thus it is necessary to clarify the two aforementioned questions theoretically as it is the cornerstone of the possession system and it will affect the orientation of the possession system. Based on this, I attempt to make an investigation of these two questions and offer some valuable proposals which are highly expected to benefit the legislation of property in China. The thesis consists of three parts:preface, mainbody and conclusive. In the preface, I introduce the contents of possession as well as the value and method of its research. Since I have expounded the two former questions, now I will concentrate on the method of the research briefly. The possession system has a long history of more than two thousand years. It originated from the Roman Empire, and then spread to Germanic Empire, France, Germany and Japan, combining the political, economic and cultural factors from different periods and different nationalities. Therefore, this thesis takes possession and right in essence as the reference for further research of the problem of possession from a historical perspective, hoping that we can at least find a possible way to recognize the problem of possession. The mainbody is composed of four parts. In the first part, I make an investigation of the historical background of the possession problem in a comparative way, and the investigation is about Roman and Germanic Empire, because modern possession system is originated from these two countries. According to my investigation, though the Germanic Empire was founded much later than the Roman Empire, its law system was not as advanced as the Roman law system. The Roman Empire was a hierarchical country based on feudal agricultural economy, and land was the center of life; while the Roman Empire was a contractual country based on the slavery commercial economy, and commodity was the center of life. In order to adapt itself to these different situations, the Germanic Empire developed a concrete law system which highlighted the external form and was based on the social status, while the Roman Empire developed an abstract law system which highlighted internal meaning and contract-based law. On the basis of these investigations, I analyze the nature of possession in the second part of the mainbody, taking right in essence as the reference. In this thesis, I first analyze the Germanic law, and then the Roman law, German law and finally the Japanese law. In Germanic Law, from a legal point of view, possession was undoubtedly a fact, but it had not attained an independent status in the legal system, it was only a subordinate under the cloak of right in essence in the legal system. In Rome, the legal sense of possession had been protected by the law as a fact, but compared with right in essence,it was still relative, and it was affected and limited by right in essence. In Germany, there was direct and indirect possession, but possession was also a fact which had become independent, and in a sense, it had achieved the equal status with right in essence. In Japan, possession had been protected as an obligation and it had attained unprecedented legal status, but it was still a fact in essence, it just achievedsuperficial unification with right in essence. Based on these, we could draw the following conclusion: the nature of possession is a fact, its legal status havs been accepted gradually, and finally it have been protected in the form of obligation. Personally I call this the independence movement of possession. In the third part of the mainbody, I analyze the composition of possession in the aforementioned order, taking holding as the reference. By analyzing, we find two basic rules: First, the composition of possession has altered in accordance with the improvement of the legal status of possession, and it is mainly embodied in the absence or presence of animus and the alteration of its content. To put it more specific, in Germanic Law, possession had not become independent as a fact, let alone its composition. In Rome, possession as a fact had achieved relatively independent legal status, and it is mainly embodied in the two constituents of possession: animus and corpus. According to Savigny, the content of animus is appropriation, but according to Jhering, it means possessing. In Germany, possession as a fact had achieved veritably independent legal status, thus the compostive emelment is enough if it has a holding. In Japan, possession as a fact had been improved in the form of obligation, and on the basis of the German one, the animus of self centredness had been added to its compositive constituent, but what was mainly emphasized was that it was a right, in terms of effect, it had the same effect as the German one. Possession can not be separated from holding, and its relation with holding could be seen from four phases: possession was holding in a sense; possession was divided from holding; the reunification of possession with holding; the re-division between possession and holding. In a word, possession was developed on the basis of holding, and it was departed from...