Claim For Restitution Of Possession

With the progress of modern transaction mode,possession is wide-spreading in our life,and leading more occupancy disputes.In order to protect its possession,the person who have been deprived the possession brought the request in the court to defend their right,which is claim for restitution of possession.The action of possession and restitution is the embodiment of the right of possession and reclaim in procedural law,which to provide convenient ways for occupants to protect their possessions,and to promote settlement of disputes,and to achieve social order and stability of legal order.The property law promulgated in 2007 and specially rose the provisions about occupancy which is provided substantive law basis for returning possession in general,especially the legal provisions which that the occupants possessing the right of possession and restitution when possessions are occupied.Based on the special nature of possession,the procedural principle in law about possessions should not in accordance with the ordinary,but the Civil Procedure Law of our country did not treat them in different way which made the possession of possession did not comply with general procedure,resulting in the person's rights and interests cannot be protected effectively.A clear procedural law can provide guidance for litigants to sue.Otherwise,possessor can only relieve their legitimate rights and interests by normal litigation.Therefore,it is necessary to have procedural research on the claim for restitution of possession.This paper references the law system of main continental countries and the Taiwan area and Macao of China,and makes a brief theory analysis of the litigant issues,such as the litigants,the object of litigation,the trial and the effectiveness of the referee.The main body of this article is divided into four parts.The first part is an overview of claim for restitution of possession.First of all,the connotation of possession is expounded.Due to the special nature of possession,the procedures for its protection should also be different.Secondly,it explains the connotation of the reclaim lawsuit,defines the connotation of the claim for restitution of possession,and analyzes the reasons and the right of claim for the claim for restitution of possession.The second part introduces the legislation and judicial status of the reclaim lawsuit in China.Mainly about the legislation and judicial status of the claim for restitution of possession in China,and then analyzes the shortcomings and expounding its necessity.The third part includes the claim for restitution of possession in the comparative law.As early as in the ancient law,the relevant provisions of the return of the lawsuit had been occupied.After the modern development,Italy,France,Japan,Germany as well as China's Taiwan region and Macao have developed the relevant provisions of the return.Based on the description of the procedural provisions of the claim for restitution of possession,this article will provide reference for the construction of the claim for restitution of possession in China.The fourth part discusses the judicial practice of the claim for restitution of possession.On the basis of drawing lessons from foreign legislative experience on the claim of restitution,explaining the system of returning lawsuit in China.These problems include the trial jurisdiction,the cost of litigation,the scope of the trial,about time,and application procedures of other procedural issues,but also include the possession condictio judgment effect.Through elaborating the relationship between possession and the right action,to determine the scope of res judicata of the claim for restitution of possession.