Research On The Protection Of Possession In Property Law

Protection for possession is regarded as possession regulations'core and key part. The promulgated "Property Law" in China has especially compiled for possession system as one part, which, fully laid the importance of the possession system, however, can do little to protect the protection of possession, for the entire part has only 5 clauses, incomplete content and misses a lot of important system of possession resulted from many reasons such as lacking of enough attention to possession and inadequate methods of research etc. So, in this essay, I try to systematically demonstrate the protection of possession, considering the value, effectiveness and protection of possession as well as the relevant provisions in the property law, with a view to improve the protection system in China. There are some sections in this article:First of all,I discuss the theoretical bases of protection for the possession, starting with the system of possession itself, try to explore the legal foundation of the protection of possession from the origin and development of possession, the evolution and separation between possession and ownership, the nature and functions of possession and other aspects, aim to gradually define possession system's basic value to real right system, historical base, economic, social and practical significance to the protection of possession.Then, I study the history of protection systems of possession and the national legislations for reference on the basis of theories described. Firstly the essay introduces the protection systems of possession under Roman and Germanic laws which for the first time discussed the possession protection, and makes a comparative analysis of them, finding that the former pay attention to protecting the facts of possession and the latter the rights behind the possession of the state; Then compares and analyses modern possession protection systems of major civil law countries like Germany, France, Japan and so on, finding that all of them were developed on the grounds of Roman and Germanic possession systems and have similarities.The fourth and fifth part, the core and key of the essay, present the methods of protection in details. Possession protection is generally discussed with property law and creditor's rights law. In the article, I will focus on the former. Property Law divided the protection of possession into self-help and public remedy i.e. possession protection request. The essay, for self-help, emphasizes on its necessity, exercise elements, content and restriction elements; for possession protection request, mainly develops analysis and demonstration from its nature, exercise and restriction etc. in connection with provisions under property law in China. In addition, this section gives an especially exploration into indirect possession, which has recently caused great debate in academic and practical realm, then points out that it should be protected after research on its connotation and value and stipulate the content of protecting possessor's self-relief right and possession protection claim.Finally, as extension content of the essay, so the author makes preliminary analysis of possession protection's corresponding system-- possession lawsuit, and by offering theoretical analysis and positive answers, analyses its functions and practical significance that is shortage of under existing law; then, puts forward to how to construct the occupy lawsuit in China, using the methods from concrete system designing of occupy lawsuit under comparative law, makes a briefly discussion from its subject, its procedure, the burden and related matters of defense objection and providing reasonable suggestions to complete the related provisions under present law, aiming at realizing the effective protection for possession by means of litigation.