Indirect Possession Of The System

Possession system is an old system, originated from the law of Rome and the law of Germanic, which as one of the civil law system is most complex, most diverting, and most disputed. Possession system is an important part in civil system info, and is the base of property law in order. It can mainten the peace in sociaty, and accelerate the development of economy. Before constituting the law of property ,civil law in china is absence of possession system, and some correlative property systems ,such as positive prescription, goodwill acquire, are absence in civil law. Along with the development of economical live in sociaty, people possess property everywhere. The ascription of property and the utilization of property are attatched .The property law in China uses for reference the possession system in civil law, establishing possession system to regulate possession and utilization of property .It remedies the insuffciency of property law. It's a great progress in property legislation. Possession system in property law is very faultiness, especially absence of indirect possession is disregarding phenomenal of indirect possession in living. Some systems can not be supported, discovering many deficiencies in logic and in function. The dissertation wants to study possession system, indirect possession and other related systems, and discuss the origin, character, important documents. This dissertation reviews some national related systems, combining legislations and judicatory in China, and indicats the function of protecting of indirect possession system. This dissertation expects to study indirect possession fully, and perfects possession system.Part I elaborates the history of indirect possessionPossession in Roman law pays attention to protect the ascription of property. In the relation of tenancy, the possession of leaseholder is regard to possession of lessor, viz.the possession of principal, without mulriple possession, so there is no indirect possession. Gewere in Teutonic law is the initial shape of indirect possession. Because of the conflict and integration of possession of Rome civil law and Gewere in Teutonic law. Germany civil law takes lead to establish the system of indirect possession to protect the interest of indirect possession person. In the article, I continue to review the case of legislation in France, Switzerland, Japan, Anglo-America and Taiwan area in China. We want to establish and perfect system of indirect possession ,we can use for reference to overseas related case of legislation.PartⅡthe nature of possession and indirect possessionScholars consider the nature of possession to be fact ,not right. Indirect possession is a state of possession shaped by certain relation of law. Some scholars think that indirect possession is a state of fact, only it is not a physic fact, but a production of conception of possession. It is different from the essential of direct possession. Possession not only include control in physical, but also include control in concept ratified by sociaty. Some scholars think indirect possession is a relation between person of indirect possession and substance. In the relation ,the person has some law effect in intercourse of law. Indirect possession is not like direct possession controlling substance, but it is assumed by law that it has ascendant. For instance, lessor does not have ascendant in fact, but he is endowed a nominal possession by law. When in the period of other possesses the substance, lessor is also a person of possession, viz.indirect possession. Indirect possession is a nominal possession which sometimes is equal to a ascendant in fact. From two aspects above, we can regard the indirect possession to be a possession in fact, also to be a nominal possession. In a word, whatever the protect of possession is applicable to indirect possession.PartⅢThe function and meaning of system of indirect possessionThis part mainly discusses the necessarily of indirect possession in two aspects in follows: one is the combination of the system of indirect possession and other related systems; the other is the protect function of indirect possession. Although indirect possession dose not have function of property publication as direct possession, the function of property publication is to protect safety of bargaining, protect the interest of a third part. The main function of indirect possession is to protect the person of indirect possession, to maintain the order and peace of sociaty. So deficiency of function of property publication is not influence on setting up system of indirect possession. Indirect possession and notional delivery. Modern times idea of civil law about the relation of person of possession and substance thinks that this relation not only localization at time and space, bases on relation of law and has go-between also possession comes into existence. In system of civil law, every concept of law is interosculate, each other has tight logic relation. Indirect possession is related with notional delivery in logic. Delivery is divided into real delivery and notional delivery, comparatively possession is divided direct possession and indirect possession. Delivery is in angle of dynamic, possession is in angle of static state. Direct possession is a result of real delivery, they are regarded to the means of property publication. The same is to the production of indirect possession. Existing property law has explicit provision on simple delivery, direction delivery and changeable possession. Because of the establishment of market economy and increasingly frequency bargains, notional delivery enriches manners of movable property delivery, and remedies the deficiency of real delivery. It is very necessary to establish notional delivery. Now that delivery includes notional delivery, indirect possession also should be accepted.Indirect possession and positive prescription. If there is no system of indirect possession, how to account time in positive prescription is a delicacy problem. Some scholars suggest that the combination of possession can substitute the function of indirect possession in positive prescription. The fifth part in the law of property only has several items about the system of possession, and there is no provision on the combination of possession. I think there are some questions on combination of possession being the same with positive prescription. 1,In the order of legislation ,combination of possession is to convenience to transferee. If person of direct possession claims the combination of possession, there will be a good many limitation. For instance, the combination of possession is only applicable to successable acquirement, not to original acquirement; the nature of former possession is the same as the later; the person of later possession should success the flaw belonging to the former. The person of later possession should success the flaw belonging to the former, such as secrete, violence should be successd. But if the former person of possession wants to acquire interest of positive prescription through claiming combination of possession, there is some obstacles. Comparing combination of the former possession and the later with indirect possession, indirect possession is more in favor of the former person of possession. Because if the person of indirect possession is accord with the provision of positive prescription, no matter the person of direct possession is continuance possessing or no flaw possessing substance, the time should be accounted continually. This is more favor of the person of indirect possession.The main function of the system of indirect possession is to protect the person of indirect possession and maintain stabilization and peace of sociaty. In this part, I mainly discuss the exertion of claim of protect possession and the third party infringes upon possession to prove that the protect function of indirect possession can not be substituted by other systems. The system of indirect possession has its own value.PartⅣDesign the system of indirect possessionThrough the discussing above, we prove the necessary of establishing system of indirect possession. This part through using for reference related systems in overseas, wants to constitute the system of indirect possession, and wishes to perfect the provisions about system possession in existing law of property.