Occupation Of The Protection Claim System

Traditionally,the possession protection claims contain nuisance removing,danger eliminating and possession returning,the above three can also be called as"The Claims in Narrow Sense".It is doubtful that China's Property law holds the view that damage compensation is one of the claims as well.Because the view made a confusion between the claim of creditor's rights and the right of claim for property right.Though the claims of possession protection and the claims of right have the same legal effect,there are still differences in many aspects.The claims of right are generated on the basis of certain rights,but the claims of possession protection are just based on the fact of occupying.The legislative purpose of the claims of right is to settle the dispute finally,but the claims of possession protection are the temporary maintenance of the existing order.Faults are not necessary for claims of possession protection,but the claims of right are based on the principle of fault liability and no fault liability.In burden of proof,the claims of right have to prove the legitimate entity rights,but the claims of possession protection can just prove the possession fact.The limitation of action is applied to the claims of right,and the exclusion period is applied to the claims of possession protection.The civil law countries?regions? have recognized the importance of the possession system for decades,they has developed detailed substantive law and procedural law to prohibit private relief.Meanwhile,in order to avoid the disadvantages brought by the lengthy litigation procedure,possessory actions were given independent legal status to distinguish from the property right actions.Among these countries?regions?,the litigation system of France and Japan are the most typical.With the promulgation of China's Property law,a new type of action called "Possession Protection Litigation" was established.More and more conflicts between possession and property rights occurred.A lot of the possessory actions were judged by claims of property right,which led the action of possession to essentially useless.I suggest that in possession litigations we should prohibit the plea of property right like South Korea,France,Japan and many other civil law countries?regions? did.If a plea have to be prosecuted,the party can counterclaim or bring up a new lawsuit.As so,the legislative value of possessory action will be realized.Possession has already been listed as a separate series,but still resulting in poor practice.Therefore,it is proposed to consummate the procedural law by referring to France and Japan's possessory litigation systems.Also,we can refer to the summary procedure of Taiwan district and German's conservatory measures in litigation.In substantial law,it is proposed to consummate the system of possession claims in the Property Law,to reasonably presume the facts and rights of presumption,to further clarify the rights and obligations of the right holders and non-right holders,to establish regulations related to possession,so that to improve the efficiency of disputes solution.