The Civil Law Protection Of Unauthorized Possession

Since the end of the Qing Dynasty,China has gradually introduced the possession system in the modern sense.For the first time,China has made provisions on possession,which is in the draft of the Qing Dynasty Civil Law.The Qing Dynasty Civil Law Draft draws on the legislative experience of Germany and Japan,and based on China’s national conditions,it has developed a possession system that conforms to the background of the times.In the Civil Code of 1929,in the "property rights compilation",the concept of possession became more and more clear,and it was clearly stipulated that unauthorized possession was also adjusted by the possession system.Since the founding of New China,although the development of the possession system has experienced twists and turns,the theory has become more mature.For the possession regulations,the legislations of different countries and regions are different,but they all occupy an important position in their civil law system.The unauthorized possession is especially important in the possession system.Because there is no right to possess or the source of right is uncertain,the protection of unauthorized possession in our national law is not sufficient,leading to the continuous emergence of problems and disputes.From the perspective of legislation,China’s relevant provisions on the protection of unauthorized possession are mainly concentrated in the General Principles of Articles of Property,Articles 244 and 245.The unauthorized possession is also a part of possession system.Although the consensus has been reached in the academic circles,from the perspective of judicial practice,it is quite difficult to protect the interests of those who do not have the right to possess.This is very unfavorable for the stability of the trading order and social peace.Starting from the actual national conditions,it is necessary and urgent to study the protection system.The article begins with a theoretical definition of unauthorized possession.The first thing to be clear is whether possession is a right or a fact.Although the legislations of different countries are different,most of them still protect possession as a state of fact.According to whether the occupant has the right to occupy the possession,it is divided into the entitled possession and unauthorized possession.The possession of non-existence refers to possession without the right or with or without the right,which is an important classification of possession.Since possession is a state of fact,then unauthorized possession should of course be within the scope of the possession protection system.In the second part of the thesis,the specific types that are not entitled to possess are explained in detail as much as possible.The types that are not possessed are very abundant.Commonly found are buried objects,hidden objects,drifting objects,lost objects,possession of stolen goods,not occupied during the period of limitation,preemption,invalid sales contracts,possession after being revoked,and so on.This series of possessions has a common feature,that is,there is no source of right or uncertainty of right.The third part of the thesis uses comparative law to study the relevant provisions of the civil law of several civil law countries since the Roman law.Through reference and reflection on the legislative cases of other countries,it is expected to provide reference for the construction of the unprotected possession protection in the context of the Chinese Civil Code.The fourth part discusses the protection of civil law from the two aspects of property law and credit law.The remedy method of property law and the remedy method of credit law are the basis of no right to possess protection.The compilation of the Civil Code is vast and numerous.Finally,with the help of the rule of the country,it provides suggestions and reflections for the improvement and development of the civil law protection system in the context of the Civil Code.