On The System Of Possession Litigation Of Continental Lagal System

The system of possession litigation has a centuries-old history,as early as in the period of the Rome law,to protect possession with a writ of possession.The main countries(regions)of the modern continental lagal system have inherited the Rome law and the Germanic law,and have established the system of possession protection in legislation,and established a unique mode of possession litigation.The reason why the system of possession litigation can always exist is closely related to its unique system value.On the significance of the existence of the system of possession litigation,there are different understanding of the schools of law.It mainly includes the theory of personality protection,the theory of protection of meaning,the theory of protection of the right of ownership,the protection of the right of use of creditor's rights and the maintenance of social order.Based on the fact of possession and the purpose of legislation,the author agrees with the maintenance of social order,which should also be the legislative purpose and legal basis for the establishment of the system of possession in our country.From the macro level,the recovery of the system of possession of litigation is conducive to the construction of our country under the rule of law.From the micro level,the recovery of the system of possession of litigation is also conducive to the protection of unauthorized possession,in order to better practice the principle of litigation economy.Constructing the system of possession litigation,it is necessary to clarify the relationship between the litigation of possession and the litigation of the right,and the two are both independent and antagonistic.The possession litigation and the right of litigation in the purpose of legislation,litigation causes,burden of proof,the applicable procedures and the application of the limitation of litigation and the exclusion period have the obvious difference,so handle the relationship between the two is very important in the judicial practice.The protection of possession must have the substantive elements,including the possession facts,the existence of acts of infringing possession,contrary to the meaning of the possessor,does not have the subject of illegal obstruction,possession does not exist flaws.In order to adapt to the functional value of possession litigation of the prohibition of illegal private power and the maintenance of social peace order,for the procedure design of possession litigation,the summary procedure should be applied,emergency situations can be prior execution.The construction of the system of possession litigation brings challenges to the traditional civil litigation mode of the right dispute which is dominated by the right of litigation,can also bring about the effect of amendment,supplement and improvement.