Study On The Rule Of Return In Unauthorized Possession

Article 242-244 of the Property Law of the People's Republic of China provides for the right of return of the possession of the right holder and the scope of its return,which may be referred to as the right of possession of the property.The possession return rule contains not only the contents of the return,but also the content of the possession of fruits?the expense claims and the compensation for damages between the one holding right of reply and the right holder.The passage consists of 5 parts:The first part analyzes the right to possession of a preliminary,and clarifies the subject and object in the rules of the return of possession.Then it evaluates and analyzes the article 242-244 of the real right law of our country.considering that there are some problems existing now like goodwill occupants have no rights to obtain the fruits,necessary expenses and beneficial cost is not comprehensive and possession damage compensation is not reasonable.The second part focuses on reference to Germany,France,Switzerland,Japan and China's Taiwan legislation,from which we can learn and get inspiration.The third part discusses the rules for obtaining fruits.considering that the goodwill occupants should have the right to obtain the fruits because it helps to achieve the economic benefits from the best of use at the expense of fair.In the relationship between the fruits possession and the necessary repayment of the necessary costs,we draw on the practice of not having the right to claim the necessary repayment after obtaining the proceeds.The malicious occupants have no right to obtain the fruits,Based on China's current economic and law level,we should not require he malicious owner to return the fruits that should be obtained without obtaining.The fourth part discusses the rules of fee compensation.Based on the theory of unjust enrichment,it is believed that the malicious possessor has the right to request the return of the necessary expenses as well as the goodwill occupants.In the case of beneficial expenses,in order to prevent the occupier from "forced profit",the original right holder should be given the right to claim,and the occupant could claim the beneficial expenses on the part which has been accepted.The fifth part discusses the rules of damage compensation.considering that the goodwill occupants who knows that himself is not the owner should only take the responsibility when it is accused for his own cause.In other cases,goodwill occupants are not liable.And malicious owners should bear the responsibility of fault,rather than strict liability,which is more conducive to achieving fairness.