Study On The Rule Of Presumption Of Possession

The rule of presumption of state of possession originated from Roman law and was established for the purpose of maintaining the existing state of social life and the stability of social order.The difference of the state of possession affects the effectiveness of possession,although the law of evidence provides that “whoever claims,whoever proves”,but strict compliance with such a principle of proof,so that the possessor to prove their own state of possession one by one,will certainly increase the cost of living,it is difficult to achieve the purpose of legal protection of possession,and is inconsistent with the value of the possession system to protect social order and transaction security.The value of the possession system to protect social order and transaction security will not realize.If the possessor claims that he/she is in possession on his/her own,bona fide and no-fault possession,peaceful possession,or blatant possession,the possessor does not have to prove it,and the opponent who opposes the possessor’s claim should bear the burden of proof.If the possessor claims that he continues to be in possession between two points in time,it is sufficient to prove the possession at the two points in time before and after,and it is not necessary to prove that there is no interruption of possession during the period.The system of presumption of possession is closely related to the system of acquisition by prescription,acquisition in good faith,pre-emption and the relationship between the rights and obligations of the possessor and the claimant in reply,and plays the function of promoting the realization of other systems in the system of property law.China has not established the rule of presumption of state of possession in its legislation at present.Through combing the legislation and doctrine of presumption of possession in China and studying the trial practice of presumption of possession in China,it is found that although there is no clear provision in the legislation,the application of the rule of presumption of possession still exists in the trial practice in China,and there are certain problems in the application: firstly,the application of presumption of possession in bona fide acquisition and reversion of possession has not yet formed a unified adjudication rationale;secondly,the application of presumption of possession in preemption and The application of the rule of presumption of possession in the statute of limitations system is not yet clear.This paper intends to study the basic theory of the presumption of possession and examine the legislation,doctrine and practice of the presumption of possession in foreign countries,and put forward a feasible path to improve the rules of the presumption of possession in China by taking into account the actual situation in China.The thesis consists of four chapters:The first chapter is the doctrine and jurisprudence of presumption of possession state.This chapter clarifies the meaning and legal characteristics of the presumption of possession state,interpret the transmutation of the presumption of state of possession in the history of law,and discusses the difference between the presumption of state of possession and similar concepts such as “this right”,“presumption of right of possession” and “proof of appearance”.It also discusses the distinction between the presumption of state of possession and similar concepts such as “right of possession”,“presumption of right of possession” and “proof of appearance”,and then explains the factual scope of the presumption of state of possession,with a view to building a theoretical foundation for the subsequent article.The second chapter is the development of the presumption of possession rule in China,the current study situation and problems.It is divided into three parts: firstly,the legislative development of the presumption of possession rule in China is reviewed,and the current status of the doctrinal research on the presumption of possession in China is outlined;secondly,the application of the presumption of possession in China is examined,and the practice of the presumption of possession in China is studied;finally,the existing problems of the presumption of possession rule in China are sorted out,and the causes of the problems are analyzed.The third chapter is devoted to the study of extraterritorial doctrine,legislation and practice of the presumption of possession.On the one hand,this chapter examines and evaluates the doctrine and legislation of foreign countries or regions,including Germany,France,Japan,Chinese Taiwan,the United Kingdom and the United States;on the other hand,it examines the classic or important adjudication cases in Japan and Chinese Taiwan and sorts out the important adjudication rationale.This chapter concludes with an overview of the inspiration of the legislation,doctrine and adjudication practice of foreign countries to improve the presumption of possession rule in China,in order to pave the way for the improvement in the following chapter.The fourth chapter is a reflection on the interpretation,application and even legislation of the presumption of possession rule in China.Based on the research on the basic theory of the presumption of possession and the analysis of the legislation,doctrine and judicial practice of the presumption of possession in foreign countries,this chapter proposes to improve the application of the presumption of bona fide possession in the relationship between the bona fide acquisition of movable property and the reversion of possession in China from the interpretive path,suggesting to strengthen the doctrinal research to consolidate the theoretical foundation for the improvement of the presumption of possession rule in the preemption and acquisition statute of limitations,and further clarify the application of the presumption of possession rule in China.Finally,the author puts forward the hope that China will improve the presumption of possession rule through legislative means or channels in the future.