Tort Liability Of Infringe Possession

"Property Law of the People's Republic of China"(hereinafter referred to as "Property Law")Section 245,paragraph 1,third sentence provides,in case any impairment is caused due to encroachment or interference,the possessor shall be entitled to ask for damages.However,when the invasion of possession occurred,There is no doubt as to whether this provision can be used as the basis for the right of claim against aggression.At the same time,There are many places to discuss the way to bear the tort liability.For example,the relationship between the Possess protection claim and return the property,the elimination of impairment,the elimination of danger.Define the scope of damages,etc.Around the solution to the above problems,In addition to the introduction and conclusion,the text is divided into three parts.The first part,discusses the necessity of protect the possession under Tort Liability Law.This section first determines the nature of possession.From the two aspects of the factual attribute and the right attribute,it is a kind of legal fact that the nature of possession is considered in nature.Second,By discussing the overview of possessive protection under the Property Law,it is pointed out that the claim of possessive protection is similar in nature to the claim of property rights.Its function is limited to the realization of the protection of possession effectiveness,but does not involve the compensation of the value of the damage caused by the thing,and leads the necessity of protect the possession under Tort Liability Law.At last,it is pointed out that the interest shown in the possession belongs to the property interest stipulated in Article 2 of Tort Liability Law,meets the criteria of "legality,private nature,certainty and salvability" protected by the Tort Liability Law,and ultimately determines the reasonableness of possession under Tort Liability Law.The second part,discusses the basis of claim infringing on the possession of the tort liability.The discussion in this section focuses on whether the third sentence of paragraph 1 of Article 245 of the Property Law can be used as the basis of claim infringing on the possession of the tort liability.First of all,the current status of the referee made a type of statistical analysis in this section.After that,combined with the theory of law in methodology of jurisprudence,this article makes a logical hypothesis on the relationship between the normative attribute of the third sentence of Article 245(1)of the Property Law and the principle of imputation of the damages liability.After commenting on the academic point of view,at first,the discussion of the normative attribute was started from Article 37 of the Real Right Law,which is very similar to the legislative structure of the third sentence of Article 245,paragraph 1,of the Property Law.Then,we make an analogous analysis of the normative attributes of the third sentence of the first paragraph of Article 245 of the Property Law.According to the principle of imputation of the liability for damages liability,there are two possibilities of fault liability and faultless liability,pointing out that it is not a complete law,thus denying the possibility that it is solely on the basis of claim.Therefore,the directive functions that this article serves as are also not necessary for the construction of the basis of claim,as is the case of article 37 of the Property Law.In addition,the third clause of Article 245,paragraph 1,of the "Property Law" is different from Article 37 in that it also combines the character of descriptive laws.Therefore,we still need to explore the descriptive function of the basic structure of the need for the right.As Article 2 of the Tort Liability Law does not expressly list the possession as a protection object.Therefore,it is necessary to resort to the descriptive function of the third sentence of Article 245(1)of the Property Law to include possession in the scope of Article 2 of the Tort Liability Law.When constructing the basis of claim infringing on the possession of infringement,article 2 of Tort Liability Law and Article 245,paragraph 1,third sentence of the Property Law will be combined as a general clause.As for the other components,they should be based on different types of tort liability to match the corresponding law.The third part,discusses the ways to take the responsibility of infringing on the possession.Since the tort liability stipulated in China's Tort Liability Law is not limited to penalty for damages.Therefore,it should also be in addition to penalty for damages other than the responsibility to undertake ways to explore.As the absolute right of claim,the termination of impairment or danger,the return of the property in the same content as the possess protection claim.Due to the nature of the claim belongs to the real right request should be incorporated into the norms of property law,in the case of infringement of possession of the tort liability no need to apply.As for the part of damage compensation that violation of possession of the tort liability,the author firstly puts forward three questions on the traditional classification of damage,think this classification has the logistic flaw.After that,the classification of the damage suffered and the loss of profits lead to analyze the violation of possession of the tort liability.From the perspectives of possession of the functions of maintaining the peace order of society,etc,both penalty for damages can be claimed by whether it is the possessor and the non-possessor.