On The Choice Of Applicable Procedures In Possession

The institution of possession is regulated in part 5 chapter 19 of the Property Law of the People's Republic of China,which emblemizes the protection of privacy reached a new level.However,the provisions on the possession system and its relief procedures are not detailed enough,and the theoretical research and related legislation on possession of protection litigation needs to be improved and deepened.In practice,the remedies for possession of protection are not perfect enough,and the existing litigation procedures are difficult to guarantee the timeliness of the settlement of possessive disputes.The relationship between possession litigation and the protection of the right has yet to be further studied.The possession system itself is a system that is very close to life and the basis of many property systems.It should be very important for the protection of possession.However,for a long time,our country did not realize the importance of possession of protection,nor did it understand the boundary between possession and other property rights.For a long time,there was no specific protection in possession of civil lawsuits.In 2011,the revised Civil Cases Regulations first added the name of the possession protection category and identified four specific case names.However,the existing litigation procedures are not comprehensive enough for the possession.The litigation efficiency is low,the trial period is long,and it is difficult to adapt to the timeliness and rapid requirements of possession protection,and it does not reflect the respective protection disputes.Based on this premise,this paper reorganizes the connotation and characteristics of the possession system and possession of protection disputes through reflection on the problems in judicial practice,classifies the cases of possession of protection lawsuits,and sorts out the possession protection lawsuits and the relationship between the protection of rights,through the method of comparative law,sorts out and compares the relevant systems of extraterritorial countries and regions,and puts forward the idea of the choice and reconstruction of the possession of protection litigation in China.This paper is divided into five parts:Chapter 1,the statement of problem.Through the investigation of China's legislation and judicial practice,it is found that China's legislation on possession and its protection litigation is more principled,leading to some problems in the judicial practice of possession protection.In the possession of protection litigation,how to deal with the relevant issues of the right;how to improve the rapid and rapid resolution of possession of protection litigation through program design is the most important issue in the existing possession protection litigation.Chapter 2,analyses the nature of possession and the necessary of its protection.There are many different theories on the nature of possession,including mainstream theories such as “facts” and “rights”.The author believes that possession has the dual attributes of facts and rights,and the special provisions of the law on possession make it different from the general facts,but also have the attributes of rights.The necessity of possession of protection mainly includes the maintenance of the peace order,the use of the presumption of possession to reduce the time cost of the proof of rights,and better protection of the right behind it.Chapter 3,type analysis of possession of protection lawsuits.According to the Property Law,the possession of protection claims can be divided into two categories: possession protection litigation and possession damage compensation litigation.The two major types of litigation,litigation interests,and defense reasons were discussed in detail.Chapter 4,analysis of the relationship between possession protection litigation and the protection of the right.It is difficult to circumvent the topic of protection of the right to protect the litigation.However,there are differences in the legislative purposes,the interests of the litigation,and the proof of possession.In order to guarantee the timeliness of possession of litigation,it is prohibited to file a defense against this right in the possession of protection proceedings,but it can be filed a counterclaim or a separate prosecution.The two prosecutions should give priority to the possession of protection proceedings.When the power of the successful judgment is determined,the party's possession protection claim is extinguished.Chapter 5,Possession of protection proceedings selection and refactoring.Through the analysis of the status quo of possession protection and the comparative analysis of relevant procedures in countries and regions outside the country,suggestions for program selection are proposed according to different types of possession protection cases.For the narrow sense of possession protection lawsuit,the summary procedure and the application of the first execution procedure can be further increased.If the conditions permit,the narrow possession protection disputes should be included in the non-litigation procedure to solve the problem,and the efficiency of dispute resolution can be improved.For the possession of damages litigation and the narrow sense of possession of protection litigation,it should be appropriately separated to guarantee the timeliness of the narrow possession of litigation,and at the same time guarantee the prudence and finality of the litigation for possession of damages.