Indirect Possession Of The Abolition Theory

China Property Law drafted by scholars in China and Draft of China Property Law drafted by Committee of the National People's Congress Commission of Legislative Affairs don't regulate indirect possession system. Indirect possession has very important status in possession system in Civil Law countries. This article elaborates that indirect possession should be abrogated from the following four parts.Part I elaborates the origin and legislation of indirect possession. There is no indirect possession in Rome civil law. Gewere in Teutonic law is the initial shape of indirect possession. France civil law inherits most of possession system of Rome civil law. There is no indirect possession in France civil law either. Because of the conflict and integration of possession of Rome civil law and Gewere, Civil Code of Germany regulates indirect possession for the first time. The author also investigates the legislation of indirect possession in Switzerland, Japan, Taiwan area of China, Italy, and Common Law countries.Part II elaborates the nature of indirect possession. The concept of possession in Civil Law countries has objectivity. Scholars generally hold that the nature of possession is a fact but not a kind of right. Indirect possession changes the objective composition of possession. Indirect possession isn't a fact anymore.Part III denies indirect possession form the aspect of the function of indirect possession. There are two main functions of indirect possession. One is that provisions on possession can be applied to indirect possession in principle, especially in usucaption and possession protection respects. Another is that indirect make notional possessions transform possible as a kind of delivery of personal property. Indirect possession hasn't the function of property publication. Protection is the main functionof indirect possession. However, there is a great defect in the protection function of indirect possession. At first, the indirect possessor doesn't have privilege of self-defense on possession. Secondly, the claim of indirect possession has much constraint in performing. Finally, the time for performing the claim of possession protection is very transient. The protection function of indirect possession can be replaced by other civil law systems completely. When the indirect possessor is owner, he can use property right to claim to replace right to claim for indirect possession protection. When the indirect possessor is the person over the property of another, he can use right to claim over the property of another to replace right to claim for indirect possession protection. When the indirect possessor is other rightful possessor, he can use the system of a third party infringement on creditor's rights or subrogation of the right to claim for direct possession protection to replace right to claim for indirect possession protection. When indirect possessor isn't a rightful possessor, he can ask direct possessor to protect his indirect possession or subrogate direct possessor's right to claim for possession protection or constitute action of breach of contract or action of damages instead of the right to claim for indirect possession protection. Another value of indirect possession is its function on usucaption. The author holds that the concept of possession incorporation can be expanded to protect usucaption interest of indirect possessor. Another value of indirect possession is that it makes notional possessions transform possible. The author holds that there are no inevitable connections between indirect possession and notional possessions transform. Notional possessions transform can also be a mean of personal property transform of the parties without indirect possession.Part IV is about some analysis and suggestion of possession system legislation in China. The author agrees to the legislation without indirect possession of China Property Law drafted byscholars in China and property section of China Civil Code. Moreover, the author thinks that the provision on notional possessions transform in the draft of People's University is more scientific than in the draft of China Academy of Social Sciences and suggests adopting the provision of the draft of People' s University in future property legislation in China.