An Analysis Of The "Pengzhou Ebony Case"

The system of preoccupation is an important system of the original acquisition ofownership, having a prominent position in ownership system, but it is not set up in"general principles of civil law"and "property law" legislation in our country,resulting in the lawlessness of the ownership of the ownerless articles in judicialpractice.The ownerless buried objects and lost property in China adopt the legislativemode of state-owned. This paper selects "Pengzhou ebony case" as a typical caseanalysis,which is controversial in the theory and the practice group, discussing in theabsence of the system of preoccupation and under current legal framework andjudicial practice, how the court can fill the legal loophole in the trial, which causes thethinking of relevant legislation in China, and combined with the case put forwardrelated suggestions of legislation.In addition to the introduction and conclusion,this paper is divided into fourparts:The first part introduces the case and the focus of controversy. The "Pengzhouebony case" case is briefly introduced, and the disputes of both parties aresummarized.The second part introduces the dispute and the parties point of view. This part ismainly to review the focus of controversy of both sides,and at the same time todiscuss the theory’s and the practice’s views.It mainly involves what the ebony is andthe related ownership problems in law. From the point of the plaintiff and thedefendant that ebony is natural fruits，buried objects and the point of the parties thatebony is a natural resource, cultural article and fossil, we think that ebony is neithernatural fruits, buried objects nor natural resources, fossil and cultural article, and thepoints of the plaintiff and defendant and the theory’s and the practice’s views does notconform to the related legal provisions, and legal reasons are not enough.The third part introduces the case analysis conclusion. This part mainly includestwo aspects: one is that with the combination of the second part, this paper thinkebony should be judged as ownerless articles and should apply the law provisions onthe ownerless articles. However, at present our country has not set up the system ofpreoccupation. Therefore,the problem that how to make this decision in this casebecomes the problem that how to fill the loopholes in the law in the judicial practice. For the countries of Anglo American law system, filling the loopholes in the law is nota problem. The countries of continental law system let the judge make law to solvethis problem. Our country has "embryonic form of judge made law" in the judicialpractice. This paper believes that at present in the legislative and judicial practice, thejudge can make laws at the trial in the strict rules, and judge the ebony belongs to thestate, using the method of analogy. The other is to review the judgment of the court.Mainly related to the comments of the existing decision and final judgment of case.The fourth part introduces the reflection on the legislation of our country.Combined with the case, this part is mainly puts forward the consideration of relatedlegislation and suggestions of legislation. It mainly involves the consideration of thestate legislative mode that ownerless buried objects and lost property shall be ownedby the state and the lack of the system of preoccupation. Combined with the case,wecomment the the legislative model of over-nationalization, at the same time,combined with the reality of our country,we put forward the idea of establishing thesystem of preoccupation in china.