On Improvement Of The Possession Protection System In China

The possessory system is a great innovation in the property right system,which relates to the circulation of property and social stability.The regulation of possession protection is the core of the system.Came into force in 2007 of the property law in China has a special "possession",but because it about the nature of the possession,cause the entire possession protection logic chaos,possession of the property rights protection of right of claim shall apply mutatis mutandis to the real right of claim for protection,the right protection of creditor's rights to claim right of claim for protection.The author discussed from possession of properties as the logical starting point,through to the current China occupies a protection system,namely "real rights protection method" and "creditor's rights protection method" the analysis of the system,combining with the outside system and practical experience,using the methods of classification,comparison,combining the theory of right of claim system of our country currently has a protection system is analyzed.In addition,the author will make an evaluation on China's possession protection system based on the research on the protection of judicial cases and the empirical research on the possession protection.In the category of "fact theory",the author discusses the perfect path of the possessory protection system which is the core of the protection of the claim of protection.The main contents of this paper are as follows:The first chapter discusses the theoretical basis of possession protection.Possession is the state of possession of the possession of the fact of the possession.The nature of possession is the fact,it is the fact that has the legal meaning,namely the legal fact.It is of great significance to protect the legal order,property stability,the protection of the right and theprotection of creditor's rights.The author investigates the representative countries and regions throughout the world and occupy system legislation,has carried on the comparative analysis,sums up the constitutive requirements of the possession protection and its two main relief ways,a lawsuit and self-help.The second chapter discusses the current system of China's possession protection.There are only five provisions in China's property law on the possession system,which is very brief,so there are many deficiencies in the legislation of the possession system.The present possessory protection in China is the right to claim for self-relief and possession.It is not scientific to claim the right of claim for protection,because the possessory right of claim is the right of claim,not the right of claim.Should in general not to set up a general provision about the right of claim of real rights,in the specific provisions stipulated separately based on the ownership of the real right claim,based on the principle of real right and the right to take possession of the protection of the right of claim.The third chapter discusses the protection mode of creditor's rights.The claim for unjust enrichment can be divided into unjust enrichment and non-payment.It can make up for the deficiency of possessory property protection,but it still can't cover all the types of possession infringement.In tort compensation claim,in clear violation of elements of tort liability,on the basis of detailed analysis of the right to possess the tort damage compensation claims and possession of the reply to the responsibility of the holder of the problem.The fourth chapter makes an empirical analysis of the practice of China's possession protection.Through possession protection cases retrieve data statistics,this year to the growth rate of possession protection disputes is extremely large,but the protection of the creditor's rights and property rights protection way,compared to more likely to be adopted.In the author's opinion,as the possession system under the property law,the main protection method should be taken as the core and basic property rights protection method,and the creditor's rights protection method should be supplemented.This phenomenon and the property law of our country havea great relationship with the definition and nature of the ambiguous definition and the property system.