On The Lack And Establishment Of The Lawsuit Of Possession In China

Possession system plays a significant role in civil law theory, it is closely related to people's life. People judge that who has right to something, the most direct appearance is the thing in their hands,which embodies the public function of possession. Although this public function is not completely correct, people will not easily destroy the possession of this state.This phenomenon occurred because of the nature of possession. On the nature of possession, there are different regulations in the civil law and academic theory. mainly including the fact that, right, powers and functions, law benefit, eclecticism, legal relationship theory etc.When someone usurp or prejudice possession, the possessor can exercise three kinds rights: the return of possession right to request, the right to exclude prejudice,prejudice prevents claims. The concept of possession originated from Roman law, it gets through the wrist system to protect possession.because of trivia of application process, the wrist system cannot meet the needs of people and be replaced by litigation system.Chinese property law has given clear provisions to the protection of possession,this legal basis made the protection of possession perfectly justifiable. However Civil Procedure Law failed to provide the appropriate mode of trial, it is inconvenient to the court to deal with possession of disputes. The case of prosecution to the court are based on the substantive law in principle, but not all entities are protected by the law will have matching procedures, it is unrealistic and wastes the national legislative resources. There are differences between the lawsuit of possession and the lawsuit of right,because of the uniqueness of possession. The trial mode of the lawsuit of right is not necessarily suitable for the lawsuit of possession, so it is essential to build corresponding program in procedure law. From the point of the existing legislation at home and abroad, there are three kinds mode of the lawsuit of possession, the protection mode of movable property and real estate, which represented by France;Germany and Japan chose the mode of false disposition; Taiwan in our country chose the mode of summary procedure. On the basis of drawing on the extraterritorial law and combing with the judicial environment of our country, we choose the litigation mode which suits our country possession,it remedies the insufficiency of possession lawsuit in Civil Procedure Law.