The Research Of Preoccupation Through The Case Of "Ebony"

Preoccupation has existed for a long time as a customary law in China. There aremany similar cases about the disputes of the ownerless have different results owing to theabsence of preoccupation legislation nevertheless. The case of “Ebony” in Peng Zhou hasbrought preoccupation legislation as well as how to legislate into the public eye. Taking thecase of “Ebony” as a breakthrough, the paper will elaborate the disadvantages of the currentlaw owing to the absence of preoccupation legislation and further demonstrate the necessityand feasibility of the establishing of the preoccupation legislation. Then, It is suggested thatpreoccupation legislation corresponded to china’s conditions should be established throughtransplanting foreign law and referencing the local legal. Only in this way can we improvethe system of The Property Law and guarantee the rights of the preoccupation subject.This paper includes introduction and main body, and the main body consists of six parts:Part one, drawing the conclusion that there are different results among similar cases,such as, the case of “thatched mark”, the case of “Chen Yixi” and the case of “Ebony”,owing to the absence of the preoccupation legislation. So there is no doubt to establish thepreoccupation legislation.Part two, stating the current situation which is of the absence of pre-occupationlegislation and the judicial dilemma which caused by it, coming to the conclusion that thecase of “Ebony”will be happen and will not be adjudicated by the law inevitably.Part three, firstly, stating the origin and evolution of preoccupation law; secondly,drawing the conclusion that the Two element Doctrine about the preoccupation is of greatvalue for us to resolve the case of “Ebony” through the angle of law transplantation; lastly,drawing the conclusion that the preoccupation legislation which conforms to indigenouscustomary law is the best for our country by analyzing the case of “Ebony” from the pointof the local resources about preoccupation.Part four, analyzing the theoretical value, practical value and feasibility of theestablishment of the preoccupation legislation.Part five, taking specific recommendations through three aspects：subject, target scopeand the specific legislation for the purpose of establishing of preoccupation legislation.Extending the scope of subject to civil ones like natural person and public serviceorganization; increasing “ownerless identified by the court” and “ownerless immovableproperty” to the target scope. The public service organization could get the ownership of “ownerless immovable property” and “the heritage without the lord”. All of them are theinnovative points and main points of this paper.Part six, stating the importance and value of establishing the preoccupation legislation,again.