Research On The System Of Compensation For Damages Of Possession In China

As a kind of system,possession appears late and develops relatively slowly in the civil law of our country.Until 2007,the Property Law of the People ’ s Republic of China was promulgated and the system of possession was formally established.Articles 241 to 245 of the property Law consist of possession,which is protected as a fact in the property Law.At the same time,through the analysis of the Tort liability Law of the people’s Republic of China,it can be concluded that possession is also regulated by the Tort liability Law,and the possession is promoted to the height of legal interest to be protected.At present,with the development of possession practice,the problem of compensation for damages of possession is becoming more and more complicated,which puts forward new requirements for the development and perfection of relevant theories.First of all,about the constitutive elements of the claim for damages.The constitutive elements of possession compensation include injurious act,damage result,causality and imputation principle.However,the scope of compensation and the constitutive elements of compensation for possession damage are incomplete and should be regulated.Firstly,the damage result of possession damage compensation should include three kinds,that is,the damage result of possession damage compensation should be expanded.Secondly,the provisions of Article 245 of the Law of Real Rights on the claim for compensation for damages of possession belong to the independent norm of claim,not the norm of citation,but when it is applied to solve the problem of compensation for damages of possession,Still need to rely on the relevant provisions of the Tort liability Act.Thirdly,the claim of possession damages is different from the claim of possession protection,which is the claim of creditor’s rights,and infringement of possession will result in tort liability.The principle of general negligence in liability for fault should be applied to the compensation for damage in possession,but not the principle of liability without fault,because the application of the principle of liability without fault is strictly regulated by the law,and it is not feasible in legal theory.Secondly,the scope of compensation for possession damage.The right to possession and the unauthorized possession are the object of protection of the property law.This paper is divided into two dimensions:possession of right and possession without power,and possession in good faith and possession maliciously under the situation of unauthorized possession.The scope of compensation for damages is further subdivided into three aspects:the use of income damage,expense damage and liability damage.In defining the scope of compensation for possession damage,reference should be drawn from the relevant laws and regulations of foreign countries and Taiwan in order to perfect the scope of compensation for damages of possession.Finally,the application of the right to compensation for possession damage during the exercise of the application.The right to claim damages for possession shall apply for a period of one year,which shall be the limitation of action,and the provisions of interruption and suspension shall apply during that period.