On Legislative Perfection Of The Possession System In China

The possession system originated from Rome law, and after two thousand years of life and growth in nature, has gradually become an important system in the civil law system in continental law system. System of possession and ownership system, his real right system constitutes the core of the real right system. During this period experienced and fusion system of possession in the Germanic law, reflects the representative of the significance of the civil law in France, Germany and other continental law system, then eastward to Japan, for the absorption of legislation in civil procedure in our country to the late Qing Dynasty, was gradually accepted by Chinese civil law.At present, from the legal space, position of system of possession in real right law of our country in the system is obviously not with the traditional real right law position matching. In1986the "general principles of civil law", we will only share as a function of ownership regulations. In this twenty years later, in2007promulgated the "property law" in the fifth series of "possession" has only five provisions of the possession system relatively rough provisions, in fifth supernumerary established and possession system related to the system of bona fide acquisition is just a number. This reflects China’s cautious attitude in the civil legislation in a certain sense, but it also reflects our country in possession system legislation lag. The possession system is backward, a direct impact on the relationship between civil law system architecture, which restricts the enactment of civil code, which makes people some interests in civil activities can not be effectively coordinated, to some extent, has hampered China’s socialist market economy.The introductionis the first part,except the introductionis divided into four parts,the main contentsas:The second part, the author will focus on the possession system in the value of the system in our country. This part mainly through the hands of position system in the traditional civil law countries or regions and the function, to explore the value of the system of possession system itself has. Combined with the social reality and legislation situation in our country, discusses the system of possession in significant system value in china. After the demonstration, the possession system also should be positioned in the basic position in China, is very important. And then through the possession system in China to perfect the system of real right law, promote property utilization efficiency and ensure the fairness and justice as well as the significance of solving practical problems and other aspects of the paper, proof of possession system in our country’s important value, the demand for further improvement.The third part mainly expounds theconcept andclassification ofthelack ofour countryand improve them. The author analyses the nature of possession and elements, the share is defined as "possession is one is accurate to control and dominate in fact.". In addition to our "property law" except in simple distinction between the possession of goodwill and malicious possession.No other classification, but some classification is important, such as direct possession and indirect possession. The theory is more in-depth understanding of these concepts, but has not specified provisions into the "property law". This deletion also should be perfected. Secondly, the effect of possession problem and improvement. The validity of a certain behavior for the possessor, include the holder may exercise the rights, obligation and responsibility. Possession of itself as a characterization of the right to state the facts, should have the presumption of validity. This presumption and fact presumption of validity includes rights, this is not reflected in China’s "property law".The fourth part,effect on thepossession of theproblemaboutthe deficiencies and improvement, In addition on possession reply claim the rights and obligations between the person, the real right law of our country at present, there are some rules, but some stipulations of rationality is discussed, such as the possession of possession of the use of proceeds, a malicious possessor for possession of material damage and loss of the responsibility for damages. In these specific rights and obligations, China should make detailed provisions, in order to obtain the rights and obligations are clear, makes possession system more operational. The fifth partelaborateson theproblemsand improve theprotection of possession. The core of the possession system is the protection of possession. Method of possession protection is mainly divided into the protection of real right law and law of obligation. Protection of the property law mainly by the possessor’s self-relief right and the claim of possession protection implementation. Protection of creditor’s rights law mainly by means of unjust enrichment claim and the person in possession of the right of claim for damage compensation to achieve. At present our country hasn’t yet give possessor self-relief right, it needs to improve. In addition to our "property law" provisions of the right to request compensation for possession against the possession of the damage, but the scope of compensation is much, not to be defined, which needs to improve.Loss of possession system in our country are in many aspects, I only for our country to occupy some deficiency in legislation is discussed, is closely related to our possession system in the possession of the acquisition, loss and quasi possession system in such aspects as the system of preoccupation with the possession system and aging have system are not clearly defined. Improvement of this important system, to be scholars further study.