Study On The Application Of Article 245 Of The Property Law

The article 245 of China's property law,which is governed by the provisions of civil law countries(regions)such as German law,provides for the right of claim for possession protection.The theory of possession and possession protection is vast and difficult to understand,and this paper is not intended or able to make a complete combing and in-depth argument on the relevant theory of the right to claim possession protection.The purpose of this paper is to clarify the connotation of article 245 of the property law from the judicial level and apply it accurately on the basis of the empirical analysis of the judicial application of article 245 of the property law of 7 provinces and cities in 2017 and the theory of relevant theories.In addition to the introduction,the text consists of four parts:The first part,the necessity of accurately applying article 245 of the property law.First,to meet the needs of the normative purpose of article 245 of the property law: possession is fact,possession of the right to claim is different from the right to claim property,based on the fact of possession of the right to claim;The purpose of the regulation is derived from the theory of the maintenance of the peace order.The second is to deal with the need for thin legal provisions.Third,the need to correct the confusion of the judicial application: 7 provinces and cities in 2017 to apply the non-existent possession of protection disputes accounted for 55.1%,barely more than half;the application of article 245 of the property law by local courts is extremely confusing.The second part,the connotation of the first paragraph of article 245 of the property law.One is that the requester must "possess or have been in possession of the competing objects".This is a prerequisite for the application of article 245 of the property law.Second,the requested person must carry out the "legal prohibition of private power".The meaning of "usurpation" in the first paragraph of article 245 of the property law should be understood in the narrow sense of "usurpation".Third,the person having right to possess may exercise the right of claim for possession protection.Four is that the person who has no right to possess may exercise the right of claim for possession protection(8 cases).The third part,the reflection on the application of the first paragraph of article 245 of the property law.The proportion of problems in the application of "possession or former possession of a contested object" is 10.6%.The main problems existing in the application of "private power prohibited by law" : confusing possession and infringement of this right(15%),the great reason is that the parties have insufficient understanding of the system of claim for possession protection;the boundary between usurpation and obstruction is not clear;it has not been ascertained whether it meets the "private power prohibited by law" conditions;and there have been multiple omissions in the trial of the same case.Reflection on the right of the person in possession to exercise possession protection: as far as the real person is concerned,there is a general situation in which the case is a dispute of possession protection,but the proportion of cases in which the real right protection dispute is tried(37.5%),and the percentage of claims and possession that confuses the right in the case of the exercise of the right of claim for The total is 42.6%;the person having right to possess has to choose to file possession litigation or Right Litigation.The right of the person who has no right to possess may exercise the view of the claim of possession protection: because of the influence of the factors such as "the first criminal",it can be considered in principle that the malicious occupiers and illegal occupiers involved in the criminal acts may not exercise the right of claim for possession protection.The forth part,the connotation and reflection of application of the second paragraph of article 245 of the property law.The exercise of a year provided by the second paragraph of article 245 of the property law is exclusion period.The court shall,on its own initiative,review the application of this period.(14% per cent of cases in which the limitation is not actively reviewed or ignored).