Possession In China Of Reforms

Possession is mainly regulated in Articles 241 to 245 of The Property Law of the People's Republic of China(the Property Law),these relevant articles are more practical than theoretic and ignore the true value of possession,as well as the legal interest which should have been protected.This work intends to discuss possession in China in the following four aspects:Firstly,the nature of possession will be discussed.It should be pointed out at the firstly place that "possession" has not been clearly defined in the Property Law and therefore,there are different understandings about the nature of possession.Should possession be regarded as a matter of fact,unentitled possession will be able to be protected by substantive law;while should possession be regarded as right it could not be protected by substantive law but in a legal proceeding it will be presumed as entitled possession,subject to counter evidence and in China the legal practice favors the latter.Secondly,the Property Law fails to define encroachment when considering the interest which possession should protect due to the vague language in the statute.In the draft bill of the Property Law,the word once used in the relevant article about encroachment was"trespass" instead of "encroachment".It was believed by legislators that "trespass" excluded possession by fraud or duress while these were included in "encroachment" and therefore encroachment should be more suitable for that article.However,it is argued in this work that possession by fraud or duress should nevertheless remain protected by the Property Law.Even though possession by fraud or duress may cause mistakes and fear to the original possessor,it is,prima facie,a negative and peaceful possession from the aspect of the new possessor,and what should be excluded from the protection of possession is possession by positive illegal actions instead of encroachment.Thirdly,it is axiomatic that self-preservation is of fundamental importance in a society which values peaceful transaction orders.By recognizing possession as a right,self-preservation will be protected and regulated by law in the future.Lastly,the law of indirect possession is not clearly stated in the Property Law,which makes the law about the delivery of movable properties uncertain and the right of the indirect possessor limited;this is especially the truth when Articles 25(traditio brevi manu).26(delivery by indication),and 27(constitutum possessorium)of the Property Law are involved.