Research On The Possession System

As an indispensable part of the law of things even the whole civil law, thepossession system plays a significant role in property order maintenance andtransaction safety protection. Affected by the legislation of Soviet Russia, thelaw of our country only regulates possession as a function of ownership whilehasn't established independent possession institution, which leads to theincompleteness of law of things system. Furthermore, possession is oftenencroached on by force so the interests of possessors'are lack of protection,and social economic orders are unsteady. With the gradual developments ofmarket economy in China, it becomes necessary to promote circulation ofcommodity and protect convenience and safety of transaction. So it has greatpractical significance to study the possession system systematically andadvance constructive suggestions about how to build independent possessionsystem in our country when Chinese law of things is going to be promulgatedsoon.The paper is divided into four sections:Section one gives a brief account of the possession system. In this section,the paper summarizes the history origin, theories and evolution of the system,along with the basic intension of possession. Based on the comparative studies,the author gives a common and scientific definition to possession. By analysisof the constitutive requirements, the paper holds that the main body ofpossession should include physical person, artificial person as well as otherorganizations, and the object should be goods (which are different to that ofright.) Then the paper distinguishes possession from holding, possessory rightand right in essence. Finally, the history evolution of possession system isintroduced. The Roman law focuses on action right for possession and its mainfunction is to maintain social order. In Germanic law, possession is closelyconnected with right in essence, and the possession system that fulfils thefunction of transaction safety insurance emphasizes right presumption andgives possession public trust. In German law, possession is regulated as a kindof fact, i.e. the will of possession is not a necessary requirement of it.Furthermore, the German law creates the indirect possession system whichextends the traditional concept. In addition, protection system is builtcomprehensively in this code, including possessor's self-relief right andpossession protection claim. The French law regulates owner's will possession,and based on which the law prescribes acquisitive prescription and innocentobtainment. The biggest character of Japanese law is that possession isregulated as a kind of right. In addition, the law distinguishes bona fidepossession and dishonest possession as well as establishes the principle thatdifferentiates action for possession and action for right in essence.Section two is about the basic theories of possession. In this section, thepaper expounds the characters, functions, classification and presumption alongwith the protection of possession in order to found a theoretic base to sectionthree Legal Principles and Systems Related to Possession and section fourPossession System and Chinese Real Right Legislation.Firstly, based on three reasons (the origin of possession, institution designand judicial practice), the paper holds that possession is not a right, but a fact.Secondly, the social functions of possession include protection of possession,acquisition of right in essence and demonstration of right in essence. As far asthe classification is concerned, possession can be divided into direct andindirect possession, titular and adverse possession, oneself and accessorypossession, owner's will to possess and imperfect possession. Fourthly, thepossession presumption involves presumption of fact and presumption of right.The former presumes that all practical possession is legal so as to explain theuniversality and validity of possession protection. The consequence of thelatter is to give public trust to possession that is the base upon which theprinciple of public summons and trust can be established. Lastly, the logicalpremise and legal foundation of possession protection are possessionpresumption of fact and of right discussed above. And the protection methodsinvolve possessor's self-relief right and protection claimSection three focuses on the relationship between possession and otherrelated principles or systems. Concerning the relation between possession andthe principle of real right public summons, the paper believes that as a kind oflegal right, the real right need represent itself by noticeable facts, andpossession is a preferred method to manifest the right. Possession and deliveryform the way of movables publication together, and delivery is in fact thetransfer of possession. About possession and the principle of real right publictrust, as long as the other side of dealing possesses movables realistically, itcan be presumed that the possessor has the very disposition or proprietaryright. This presumption saves dealing costs, as well as safeguards dealingsafety.With regard to the possession system and innocent obtainment, the logicalbasis of the latter is possession's public trust of which is the very consequenceof possession presumption of right. Therefore, the innocent obtainment is notapplicable when the guarantee entries into possession by constitutumpossessorium.When it comes to the relation between possession and acquisitiveprescription, the paper indicates that the civil law of our country only regulatesextinctive prescription while there is a lack of acquisitive prescription. On thebase of the comparative study about acquisitive prescription, extinctiveprescription and innocent obtainment, the paper discusses that acquisitiveprescription can not be replaced by other institutions, and further demonstratesthe necessity to set up acquisitive prescription system from the angle of itsfunction and value as well as the rule of right execution. The chief constitutiverequirement of acquisitive prescription is possession, which must be withowner's will, public and peaceful.Section four deals with the system of possession from the angle ofChinese real right legislation. Firstly the paper indicates the understanding ofpossession in our current civil law. Due to the long-standing confinement toprivate ownership mentality, there isn't systematic law of things or completepossession system, and the rules about possession scatter among specific...