Study On Possession As The Object Of Protection Of The Tort Law

Possession is an important system in the civil law,although it has always been in dispute.Studying the problems about possession,it can be known that all of them are associated with its nature,which has effects not only on the construction of possession itself,but also on real right law and law of obligation.The nature of possession is fact.But in the application of tort liability law,how possession becomes the object of protection and how to claim damages are the problems which is waiting to be explained clearly and logically.The nature of possession runs through it.Why is the theory of possession so complex?It is easy to criticize others’viewpoint but it is really hard to prove our own view.The logic of numerous discussions about right and fact is not clear.As the object of tort liability law,someone adopt negative attitude due to the nature of possession.Although most people take a positive attitude,but the reasons are not the same.Someone think it is because that the nature of possession is fact meanwhile it is right. Someone think it because of legal interest behind possession.To the right,there is a debate between real right and personal right.To the legal interest,concrete content is still unknown.The understanding of the nature of possession determines the answer to all above questions,and answers to those questions reflect the nature of possession.The distinction between titular possession and mere possession of facts is the main line of the demonstration of possession in this paper. Although possession whose nature is fact is regulated in the last chapter of property law of China,titular possession and mere possession of facts both are protected.But in the compensation of damage,right gives it different status. Different from the mere possession of legal relationship,right makes it more close to the damage of the right.Rather than claiming for compensation of possession damage,it is better to say that there is no substantial difference between it and claiming for compensation of right damage.In the titular possession,damage compensation for possession has little application of space.Meanwhile,such processing or understanding also has a profound impact on the nature of possession,and the relationship between possession and right.Based on this,if possession want to have its own independent meaning,it must to be proved that mere possession of facts has the value to be protected by law,that is,the possession interest exists.When the mere possession of facts is damaged,whether can the possessor claim for damage compensation which is based on the Tort Law?Different scholars have different views.The main reason lies in under the titular possession,the interest usually are divided by using and income and disposal.Corresponding to the mere possession of fact has no such functions.There is no vested interest.The legal interest is too difficult to be proved,which is the reason why this paper finally adopted the negative view.The theory of maintaining interest is an important proposition,but it also has many problems.Understanding of the possession interest relates to the understanding of nature of possession and the relationship between the possession and right,especially property right.lt is also a reflection of the position of possession in legislators’ and scholars’ views.In the end of this paper,litigation of damage compensation of possession is discussed.The nature of possession has effects on the litigation.Our understanding of possession is short of practical experience.May be it is because of the abstraction of possession theory,or it is because of hardness to apply the laws and regulations.The understanding of possession must be based on the characteristics of the practice,and the actual function of possession depends on the design of procedure law system.Others countries’ legislation and scholarly research has experienced a long time of argument and development,but the research and discussion about possession in civil law in our country is not fully expanded.The meaning of possession lies in the effect of system construction.No matter what kind of understanding is adopted,it has the self-evident importance on the understanding of possession,ownership,limited property rights and the whole system of property law.