On The Establishment Of The Indirect Possession System In China’s Legislation

In theory,possession can be divided into direct possession and indirect possession,but there is no such distinction in China’s legislation.In view of the fact that indirect possession plays an important role in judicial practice,this paper intends to remind legislators to consider indirect possession again.The current Property Law of the People’s Republic of China(hereinafter referred to as the Property Law)and judicial interpretation do not establish the system of indirect possession.Because there is no regulation of this system,the existence of many systems such as conceptual delivery lacks theoretical support,At the same time limits the protection of indirect possessor’s rights as well.Although the current Property Law makes possession independent,it can’t completely cover the content of possession.The 10 th Session of the Standing Committee of the 13 th National People’s Congress deliberated on the property rights of the civil code of the People’s Republic of China(the second deliberation draft),but it did not make essential changes to the provisions of the possession part,however,this does not mean that the indirect possession theory is useless in China.In the current situation of indirect possession in judicial activities,legislators should also carefully consider its legislative value.On the basis of combing the basic theory and existing value of the indirect possession system,this paper intends to learn experience from the relevant foreign theories and legislation,and give personal opinions on the legislative approach of the indirect possession system in China,in order to help improve the legislation of the possession system.This paper is divided into four parts:The first part mainly discusses the basic theory of indirect possession.First of all,it introduces the theoretical classification of indirect possession and the different theories of its constituent elements,analyzes the differences between the different theories of constituent elements,and paves the way for the trail reasoning part of the case analysis in the second part.The second part mainly discusses the current legislative situation and problems in practice.After clarifying why there is no relevant legislation before,by researching on the judge judgments in related cases,So that shows that the indirect possession system can play an important role in judicial practiceThe third part mainly discusses the significance and feasibility of the system.The contribution of this system is expressed from three aspects: making the function of the system of possession fully play,reasonably explaining the existence of the modification of possession,and being the theoretical basis of the system of time limited acquisition,in order to emphasize the significance of the legislation of this system from the value level.Then,explains its feasibility with the view of indirect possessive affirmative theory.The fourth part mainly discusses the different approaches of several countries to this system,combined with our country’s acceptance of the abroad possession theory,to find out the appropriate reference objects,and provide reference for our country’s legislation to establish this system.Finally,it comes down to the legislative level,and puts forward legislative methods and suggestions for this system.