On The Secondary Right Of The Claim Of Recovering Property

With regard to the holders of the right in rem, they must be guaranteedthe right of possessing it firstly when using it. Once they lose the right, theirinterest will be damaged seriously. Thus, the holders of the right need to begiven the right of taking back their own things as soon as possibly by thelaw. Among the selective ways of almsgiving, it is no doubt that claim ofrecovering property is the fast and the most convenient one. But it is oftenneglected that the area of application of claim of recovering of property infact is restricted to the recovery of original property. While the recovery oforiginal property is just because of one aspect of jural relation result frominstitutiong of the action of claim of recovery of property. Besides, the juralrelation of claimant and person of unentitled possession includes: returninggains, compensation for damage and compensation for expense. If the juralrelation can not be effectively adjusted,the legal dissension of claimant andperson of unentitled possession can not be solved neither ,when the originalproperty is returned to the holder. Generally speaking, these jural relationbelongs to the area of application of act of tort and unjust benefit. But theseregulation can not get to the aim of protection of holder in good faith, andbreach the general fair conception. So, legislators need to create a kind ofrequest right system which is independent of the tort and unjust enrichment,That's the secondary right of claim of recovering property. Though thetheory circle of my national civilians has not launched the research in deepabout this kind of claim yet, to our excitement, legislators in our country haswritten this kind of claim into the draft of jus rerem of our country, have gotlegislators' approval. So, taking advantage of the writing this text, Theauthor want to state the secondary right of claim of recovering propertywhich have not been detailed discussed , and study the compare about themodes of legislation in the foreign country .And the author attempt to putforward some preliminary suggestions on the draft of jus rerem of ourcountry.Three chapters: The content of the chapter one is the summary of the secondary rightof claim of recovering property. In this chapter, the author stated theproduction of the secondary right of claim of recovering property in detailfirstly. The author studied the meaning and qualities of the secondary rightof claim of recovering property. The author think this right is a kind ofclaims in nature. Then, I recommend about the foreign modes of thelegislations. The author divide the foreign modes of the legislation into twoparts according to the position where it is in the civil law, which are themode of consolidating legislation and the mode of dividing legislation. Bycompare, I agree with the draft of just rerem of our country which put thisright in the chapter of possession. The content of chapter two is about the argumentations of the maincontent of the secondary right of claim of recovering property, which is afocal point of this text. the secondary right of claim of recovering property,which is the content of three right, consists of the claim of returning gains,the claim of the compensation for damage and the claim of compensationfor damages. In this chapter, I try to compare the foreign legislativeexamples, put forward some criticism suggestions on the relevant regulationof draft of law of real right of our country according to the actual conditionsof our country . First of all, I try to compare the similarities and differencesbetween the gains and fruits and think other gains, besides fruits, should bereturned in the time of the possession too by the person of untitledpossession. During this festival, I criticized the relevant regulations of thecivil law of Japan and relevant regulations of Taiwan of our country. Ithink the person in good faith have the right of the gains. When the chose inpossession has been damaged, the person in good faith should not assumethe responsibilities. And I appose the regulations about the limitedresponsibilities of the person in good faith, which is the content of theunjust enrichment. At last, the author state the claim of the claim of thecompensation for the expenses. As a kind of the right of the secondary rightof the claim of recovering property, the claim of the compensation for theexpenses is the right granted for the possessors. So, the legislations must be...