On The Private Relief Of Possession

Occupation system is closely related to people’s daily social life and vital interests.Possession system is the basis of property law.The protection of possession is the core issue of the possession system.There are five articles 241 to 245 in the fifth section of the “Property Law” in China to stipulate the possession system and grant the possessor the right to request protection,but it is not private to the possessor.Relevant provisions on force relief and possession have also resulted in the inconvenience of whether or not the possessor has the right to private remedy in the judicial practice.In theory,the system of possessing the system is not perfect.Although private relief is viewed by many scholars as a backward and uncivilized phenomenon,public relief and private relief have institutional advantages and procedural prepositions.However,the possession of a mere factual possession of the object,the protection of the possession is mainly to maintain the credibility of the external possession of the show,and then maintain the possession of the order of the facts.Therefore,when the fact of possession is damaged or damaged by others,the protection of possession must be promptly and without delay,but at this time,if the original possessor can only rely on public remedies to eliminate the existing The destruction of order,due to the lag in public relief,may destroy the factual order of the possession of the fact that the new possession factual order has been established,and our laws protect all possessions,so it is difficult to maintain the original possession of the facts Order also violates the original intention of protecting the possession.Therefore,it is necessary to give the original occupant its own private power to exclude others from destroying their own state of possession.Article 245 of China’s “Property Law” does not clearly stipulate that the protection of possession must be exercised through litigation.Civil law is a rights law and it is a private law.According to the principle of “law has no prohibition or freedom”,it should be interpreted as allowing possessor possession.The right to self relief.Of course,in theory and in the practice of judicial practice,although possession of the private remedy rights to the occupier can explain,although China is a statutory country,statute law is the only formal source of law.Therefore,the author hopes to compile the Civil Code in the future.At the same time,the right to private possession of possession can be stipulated clearly,and the related system of possession can be improved.The text of this article is divided into five parts.The first part introduces the status quo of private remedy in China.The author divides it into two sub-sections,the status quo of the theory and the status quo of judicial practice.It shows the focus of disputes in possession of private remedy in our country and the judicial dilemmas in the judiciary of China’s judicial practice.The second part analyzes the foundation of possession of private relief.This paper analyzes the theoretical foundation and institutional foundation of possessing private remedy,starts from the preconditions for possessing private remedy,analyzes the feasibility of possessing private remedy,and compares the provisions of domestic and foreign relevant countries and regions regarding the possession of private remedy.The third and fourth parts are the core content of this article.The third part defines the possession of private relief,distinguishes it from public relief,private relief of ownership,and lien,and distinguishes between possessive remedy and proper defense and self-help behavior.The irreplaceability of possession of private relief rights.The fifth part discusses in detail the applicable conditions of possession of private relief and classifies them.The fifth part is the prospect and hope of the legislation of possessing private remedy.I hope that in the future China’s "Civil Code" will stipulate the right to possess private remedy and related systems.