On Possession Systems And The Inadequacy Of The Legislation And Perfection

The possession system is an important system in the property law isthe basis of the material property order. Property Law is designed tocompile a special chapter to its makes provision but the legislation isextremely simple with only five, there are many inadequacies. This articleis divided two parts of the legislation of the possession system ofproperty right perfect to explore, to initiate hope to possession ofproperty right system for future legislation to improve some benefit.The first part analyzes the inadequacy of China’s property lawpossession systems and legislation. Performance in the absence of thepossession system basis, the person in possession and reply to the requestof the rights and obligations between the owners occupy the right ofself-help and occupies a presumption of the system. Possession of theconcept of how to define? Possession of what is right or facts? Possessionof the subjective components of appropriation of meaning or the meaningof possession, or without any meaning? Of possession how to conductscientific classification, and whether there is the necessity ofclassification? Possession basis, China’s Property Law no clearly defined.On the issue of rights and obligations of the person in possession andreturn the claimant: the person in possession of possession damage, lossliability is not provided for damage to whether there should be "attributable to the person in possession of the subject" elements, northe provisions of the possessor in good faith the compensationresponsibility; the person in possession of possession on the use of theRevenue of China’s "property rights law" not only no provisions in goodfaith occupies a person occupies a matter of the use of income the rightare also no provisions of a malicious possessor occupies a matter of theuse of income the right; of possession matter of Claim for the propertyrights law only to the provisions of a necessary goodwill occupies aperson’s incurred to repay claims, As for the person in possession whetherto enjoy the possession of objects of useful cost of the request the right,and a malicious possessor of whether to enjoy the necessary expenses,request the right to The law makes no provision. In the possession of theprotection of our property law neither the provisions of the person inpossession of the right of self-help, nor to provide for the possessionof the presumption system. These are legislative inadequacies.The second part of the Property Law occupies a system of legislationto improve the recommendations. Perfect possession of the system from thefollowing seven aspects: first, the concept of possession, should drawlessons from Switzerland, Taiwan, China, the legislation, the provisionsof the possession of the concept: the person in possession de facto Kanreiforce rem. The second issue of the nature of the possession, should beestablished as fact. Third, on the possession of the Elements, thesubjective element of possession should be adopted "objective" with thepossession of the means that constitute possession, protected by law.Fourth, with regard to the possession of the types of problems, we mustfirst distinguish between good faith possession and malicious possession,followed by the direct possession and indirect possession, the right topossession and not ownership, independent possession to possession withhis Lord, alone as well as the common possession, his possession and The auxiliary possession included and the clear legal effect. Fifth, on theperson in possession and recover the rights and obligations of theclaimant: the person in possession of possession of damage, loss ofliability should be required and can be attributable to the person inpossession of the subject elements, and in good faith to occupy theliability of the to make specific provisions; the goodwill of the personin possession on the possession, use, income should be required to shareof possession, use, usufruct; request the right to repayment of possessionshould be clearly defined, regardless of possession in good faith ormalicious occupies a per capita non-beneficial cost of possession claims,and provides for malicious possessor shall enjoy the necessary expensesclaims. Sixth, on the person in possession of the right to self-help,according to the jurisprudence of self-help, the person in possessionshall enjoy the right to self-help, our "property law" should also beincreased in the protection of possession of the person in possession ofthe right of self-help provisions. Seventh, the presumption of possession,our property law should clearly define the right to possession of thepresumption, the presumption of possession of the facts system.In short, China’s property law there are many problems anddeficiencies in the provisions of the possession system, the existingpossession system requirements is difficult to reflect its status as thebasic system of property law, reflecting the hasty and sloppy legislation.Improve China’s property law tenure, is a major issue to be scholars tostudy the deep step.