Study On The Liability For Damages Of Infringing The Unauthorized Possession

If civil law is the balance of interests,possession is an important tool to achieve the balance of interests.The regulations on the unauthorized possession are the most important part of the possession system.Compared with the authorized possession,there is no right for possession to be supported,and there are many ways to obtain possession,including even illegal means.However,from ancient Roman law to modern civil law,from foreign law to Chinese law,almost all laws have the unauthorized possession to their own protection.The reason for the unauthorized possession to become the object of legal protection has always been a hot topic in academic circles.The theory of personality protection,the theory of peaceful order maintenance,the theory of the protection of the right and the theory of continuing interests are the four theories supported by most scholars.Based on the four theories,we can summarize the reasons for the unauthorized possession of protection into internal and external systems.From the inside,the unauthorized possession is the embodiment of Occupier of personality.The legal protection of the unauthorized possession is to protect the free will of the Occupier the unauthorized possession.From the outside,legal protection of the unauthorized possession can improve the efficiency of resource utilization,maintain the stability of social order,and reduce obstacles to the realization of real rights.These are the values that the unauthorized possession is as an independent object to be protected.Although the fifth part of China's "Property Law" has made institutional regulations on possession,the definition of the unauthorized possession has not been unified,and the difference in interests covered by the two states of goodwill and malice has not been fully considered.If there is no sound legal protection system,when there is an infringement against the unauthorized possession,the personality of the occupier and the peaceful social order will be in danger of being invaded at any time.Relying solely on a single method of property protection is not enough to make up for the multiple damages caused by the infringement of the unauthorized possession.Therefore,it is necessary to provide creditor protection for the unauthorized possession through the relevant provisions of the Tort Liability Law,broaden the remedies,and improve the remedies,so as to better realize the balance of interests that have no right to possess.In order to incorporate the unauthorized possession into the system of tort liability law,the first premise is to prove that the tort liability law protection has the necessity and feasibility to protect the unauthorized possession.The Tort Liability Act provides protection for the unauthorized possession in accordance with the two legislative purposes of protection of rights and freedom of conduct.On the one hand,the unauthorized possession is the free will of the occupier and is the material embodiment of his personality.The unauthorized possession is different from the rights and facts,and is based on the factual state of managing and controlling possessions,and has the benefit of legal protection value.The unauthorized possession has the characteristics of legal interest and conforms to the civil interest protected by tort law.The Tort Liability Law provides protection for the purpose of protection of rights and interests.At the same time,the realization of the real right behind the unauthorized possession also requires the tort liability law to provide protection for the unauthorized possession,because the destruction of the unauthorized possession order will hinder the realization of real rights,the frequent flow of possessions,and the chaos of the main body will increase the difficulty for the right holder to restore possession and realize rights.On the other hand,there is no right for the unauthorized possession,but it has the appearance of possession.Possession of appearance can provide "expected possibilities" for people outside the unauthorized possession,that is,to provide reasonable expectations for their boundaries of conduct.It protects people's freedom of behavior while avoiding infringement of the legitimate rights and interests of others and maintaining a stable and orderly development of society.Possession of appearance can also save communication costs and improve transaction efficiency.Because in the modern society with rapid economic development,it is uneconomical to conduct transactions after determining the true ownership of the objects.It is believed that the protection of the infringement liability law is the requirement of social development and economic progress,and also meets the legislative purpose of the tort liability law guaranteeing freedom of conduct.The most important way to remedy the damage caused by the infringement of the unauthorized possession is compensation for damages.When the unauthorized possession is illegally infringed,the infringer shall bear the corresponding liability for damages.Although the third sentence of the first paragraph of Article 245 of the Property Law clearly stipulates the claim of damages for the possession,this clause is not the basis for the claim of infringement of the liability for damages.When the unauthorized possession is infringed,the occupier should rely on Article 6 of the TortLiability Law to require the infringer to bear the corresponding liability for damages.The establishment and undertaking of liability for infringement of the unauthorized possession damages also apply to the provisions of the Tort Liability Law regarding general tort liability.Because the unauthorized possession in the two states of goodwill and malice,reflecting the different levels of interest claims,the Tort Liability Law therefore defines the scope of protection of good faith possession and malicious possession.Because the bona fide possessive is subjective and unscrupulous,the tort liability law protects the scope of good faith possession more than the scope of malicious possession.At the same time,considering the difference between the two types of subjects and the four types of damages,it is necessary to conduct a type analysis of the scope of compensation for damages.It can be summarized as the following three points:First,the scope of damages for infringing on the good faith possession of self-occupation includes damages for the use of proceeds,damages for expenses,and damages for third parties who are not entitled to compensation.Among them,the claim for damages for the beneficial expenses of the charitable self-occupation should be within the existing value-added limits of possession.The second point is that the damages infringed by the good intentions of the owner include damages for the use of the proceeds,damages for the expenses,and damages for the third party.Among them,the damages for the use of proceeds should be within the scope of good faith in his imaginary rights.If a third person commits an infringement,the damages outside the scope of the hypothetical right shall apply to the rules of infringement of malicious possession.Third,the scope of damages for malicious possession is different depending on whether the infringer is the original right holder or the third person.The original right holder violated the malicious possession and did not bear the liability for damages.The third party infringes on malicious possession,and the scope of damages includes compensation for damages and compensation for damages.