The Theory And Practice Of Possession System

Possession has a long history, its extension and connotation has been changedand enlarged with the development of human society. Possession system originatedfrom Roman law, which deeply influenced many countries and regions in the worldand most of them put possession into law.Due to the complexity and variety ofpossession system in content and the unique situation of each country, possessionsystem varies widely from country to country. Furthermore, The importance ofstudying legal theory has been neglected for a long time in China, thus there exists avacancy for possession system in legislation until the “Property law”promulgatedin2007.“Property law” functions as a tool of clarifying property’s ownership in order tomake full use of them, which absorbs amount of nourishments from the currenttheoretical research achievements in this field. The whole law is nearly perfect instructure and complete in content, but what disappoints us is that only a few articlesare about possession system. Moreover, the legislation about possession system istoo simple to solve disputes timely and properly in reality. Therefore, this paper istrying to study possession system deeply and widely with the hope that it can beuseful for completing possession system of “property law”.Based on the unique situation of China, this paper examines on both theexisting theories and extraterritorial legislation and practice. By analyzing andjudging the principles of law, several relevant suggestions have been putforward.This paper is made up of four parts. The first part gives a general review onthe theory of possession concerning analyzing the concept of possession, discussingthe nature of possession, and the relationship between possessors and the right topossession. On the basis of analyzing the five articles in “property law” this paperintends to find the basic theories in Chinese legislation about possession. The secondpart takes five cases as illustration, and analyzes the jurisprudence involved, whichincludes classification of possession, presumed rights of possession, the rights andobligations between possessors and holders, the self-help right, acquisitiveeffectiveness. The third part focuses on the problems existing in above cases pointsout that there are concept error in designing the possession legislation and blank ofimportant systems. The fourth part offers suggestions on perfecting possession inlegislation, which involves redefining concept and nature of possession, improvingthe classification, specifying the presumed rights of possession,making a scientificregulation for the relationship between possessors and holders, adding possessor’sself–help rights, and establishing acquisitive effectiveness.