Legal Value And Legislative Thinking On No Right For Possession

The provisions of the tenure system is too simple in the"PRC bill of property rights"implemented on October 1, 2007. As for the legal protection of no right for possession, it only find minimum consensus during the more different views, but also the very expression of euphemism. Through the use of historical analysis and comparison method, the article analysis origin of the protection of no right for possession, system functions, legal value, legislative design, and several other aspects in more detail, and in a bid to explore a system of legal protection of no right for possession which is more comprehensive and suited to the condition, hoping to benefit to China's Civil Code legislation.There are about 20 million words in the full text, with the exception of the introduction and conclusion, a total of three parts. In the introduction ,I introduce the history of the tenure system origin, history, the controversial nature of the legal system and the impact on national legislation. This first part mainly Elaborated the functions and legal value on the system of no right for possession. As to the function of the tenure system, the paper using functional essence of Roman law and German law on the possession of system, this hybrid of the two systems and the formation of the modern civil tenure systems function, namely tenure with the maintenance of social order and peaceful function, has to obtain no right for possession a gifted or functional status of the more established tenure systems so that the recognition of no right for possession. The authors agree that possession is a fact , all laws should be protected possession, regardless of whether the person has possess possession. The article maintains that tenure system's attraction lies in the protection of no right for possession, the protection of the right to possession of property order for the protection of very important role: It is conducive to safeguarding property order and promoting social harmony; Conducive to safeguarding private property rights and encourage social wealth creation; conducive to safeguarding security and rapid in transactions; promote the best use and improve efficiency.The second part of the article is main demonstration, it introduce legislative design from a specific legal relationship in the nature of rights of no right for possession and the effectiveness. The article analyze the legal relations between no right for possession and the original rights Through examples: First, the people no right for possession have no rights to indigenous people with the right to request the return of the original confrontation, which has returned obligations. Secondly, the people no right for possession have no right of disposition, his action on the disposition of the rights of indigenous people is not effection. Thirdly, the people no right for possession had to bear legal responsibilities, such as the return of the original positive, the yield paid on a possession to repair the damage compensation. Fourth, the people have all of the requirements of violence against its non-possessory rights, even if some deprived of not lawful possession, but also should be prohibited by law. the legal relations is following through the example: First, people no right for possession have the freedom of possession, others do not have the right to request his return of a possession. Secondly, the people no right for possession have the right to demand the use of violence against its non-possessory rights, while others obligation not to violence against the illegal possession possession. Thirdly, the people no right for possession t did not bear any responsibility on other people's actions possession of conduc. Because the right to the presumption applies only to defend their possession were negative and the possession, and not an active advocate of the rights in the right to the presumption invoked the provisions of the original human rights through infringement v. to advocate their rights. Fourth, the people no right for possession have no right to possession of punishment, the punishment of acts to others are nor effective.The article discuss the act of the legislature of the Property Rights Protection on no right for possession in a few typical countries using comparative analysis. Germany, Sweden and China's Taiwan region is the representative and advocate: possession law is to state the facts as a possession to be protected. Japan is the represent that affected by the legal requirements of no right for possession and advocate for the rights of possession, and possession of such property rights was given to recognize the various legal effects, and be protected. The legal effected by the facts and the right say provisions was in possession of ownership, as an empowerment ownership, or a content, or is part of the ownership rights, ownership at the same time recognizing that there are other existence of possession, and another chapter provides the protection of possession, this mainly reflects the legal system with the Soviet Union and Eastern European countries, and French civil legislation. China's civil law is impacted by the right theory, or that China's possession of the facts is the main legal provisions of the rights and said that based on the provisions of title says: all the people have enjoyment of their property possession, use, and disposal of empowerment within laws and rules.The legislative system design is the focus of the article.. First, the presumption of possession of the rules set, and with Chinese and foreign legislative practice that theory: the presumption of possession rule is actually not the legal presumption that presumption,it means that possession from the state of facts in the possession of its presumption is corresponding rights, such rights may be that ownership, but also Property is the other can.It include the following: First, the right to presumption of possession rules apply to the movable and immovable property unregistered. Second, any person is presumed to enjoy their rights when he occupies a particular property. Third, constructive possession is goodwill possession even no right for possession,. Fourth, take approach to the possession by the possession of people objected to the burden of proof. At the same time pointed out that the rules only occupies a negative presumption maintaining possession, does not have the right to actively request the function. Secondly, clearly provisions no right for possession and the right to possession in the Code, its significance is to occupy two different legal protection. In addition, the distinction of no right for possession and the right to occupy is the premise of the distinction to possession in goodwill or malicious. Again, design a limitation of the system taking "comprehensive legislation", play the value, maximize the usefulness of achieving property. Finally, we should establishment of a system of good faith, breach of statutory deadline under the Lost Property Lost in all the problems, found anything can happen property rights law changes, negate the right to possession of the self-help, and was briefly illustrates solution in the design of legislation.The third part of the article evaluate protection of no right for possession of China's Property Law using history, comparative analysis, I believe that the Property Rights Law for the Protection also is not comprehensive enough ,not specific enough, the question of their existence much greater than can be sure of. For the legislative thinking on no right for possession, I propose the amendments to the Law on Real Right, the system should be enriched and improved as following aspects: 1, the Property Rights Law tenure systems should be set to protect the right to presumption of possession possession. 2, It should be clearly stipulated no right for possession and the right to possession. 3, It shoud be provided prescription system. 4, The attitude on several issues related to the system of no right for possession should be clear.