On The Claim Of Possession Protection

Protection for possession is a key problem of ownership, in our country there is only the concept of possession, but not complete and independent ownership system. Real Right Law sanctioned in 2007 prescribes the right of claim for possession protection in Clause 245 for the first time. This text tries to deal with the right of claim for possession protection, and divides into four sections.The First Section, Worth of Studying of the Right of claim of Possession ProtectionThe right of possession protection means that when one's occupation was seized by force or disturbed, he could request the trespasser to reverse the thing or eliminate or prevent the disturbance. So the right includes right to claim for reversion, right to claim for laminating disturbance and right to claim for preventing disturbance.The system dated from Roman times, when possession had some of the nature of real right. The Roman Law protected lawful possession in good faith by the ban.Nowadays, there is still worth studying the right of claim for possession protection. For it's helpful to protect the right of possession and profit of holders of chattel, to holders who had creditor's right, and to holders without real right nor creditor's right.The Second Section, Inquire into the Claim for Possession Protection and its BasisOccupation is the basis of the claim for possession protection, which is an independent right, including two terms,"for oneself"and"occupy the thing in fact".The body of claim is general, as who occupies the thing in fact for himself has the occupation, when his occupation was or was to be disturbed, could claim for possession protection. In this way, the legal body could claim, too.The features of claim for possession protection are: firstly, it's right based on relief to occupation, secondly, it's right to ask others to do or undo something, based on occupation.The Third Section, Perform of claim for Possession Protection and the Relation between claim for Possession Protection and claim for Real Right One could claim for possession protection in form of action or not, the former applies to condense procedure with the cost paid by the other party.The limitation of the claim for possession protection varies between different counties dividing into two types. In France,Germany and Italy they formulate a same limitation and in Japan they formulate the limitation with different beginnings.The claim for possession protection differs with the claim for real right in aim,body,period etc. But the suits of the two are not different.The Forth Section, Inquire into the Legislation and Practice of the claim of possession protectionBased on seven drafts, the Real Right Law sanctioned in 2007 formulates the claim for possession protection in Clause 245. There is not formulation about the right to claim for preventing disturbance in the second draft but there is in the sixth and seventh and the Real Right Law.Moreover, there is a clear-cut formulation about the limitation of the right to claim for possession protection. There is a one-year period about the right to claim for reversion, which is a progress in legislation.But they didn't formulate all the limitations of the three kinds of rights to claim for possession protection. We should consult legislation in other countries, Japan for example, to amend it in the future. This text tries to amend it like this: Possessor's right to claim for eliminating disturbance would disappear if it was not performed during the period of disturbance or in one year after the disturbance ended. Possessor's right to claim for preventing disturbance would disappear if it was not performed during the period of disturbance.In practice, the claim for possession protection could protect farmland users whose occupation was disturbed, protect holders whose property right was confused registered.In all, the claim for possession protection will work much in practice, and waits on amending by judicial interpret or amend.