On The Status Of The Constitutm Possessrium In The Real Right System And Its System Design

At present,most countries of the civil law system have recognized constitutm possessrium in legislation,but there are differences between the system design of constitutm possessrium in the formalist legislative model and the voluntary legislative model.Our country’s current "property law" receives constitutm possessrium under the German law which is under formalist legislative,but it seems to adopt constitutm possessrium under the mode of voluntary legislation,and regard constitutm possessrium as a way of chattel delivery,which is called "concept delivery" in theory.No matter from the self contradiction of the system design that constitutm possessrium decides,or the result of legal interpretation of delivery and the essence of deliver which is direct transfer of possession,constitutm possessrium is not a way of delivery,it should be a way of property right change which has equal position with delivery.As a way of change of real right,the time of the change of property right caused by constitutm possessrium needs to be revised,the effectiveness of its publicity needs to be supplemented:from the perspective of "the real right meaning",the principle of offset,balancing the risks of the transferee and the theoretical basis of the change of possession,it can be supplemented that the time of constitutm possessrium leads to the change of real right is when the assignee obtains indirect possession.In addition,the parties to the contract can agree on the effective time of the possessory media relationship determined by the constitutm possessrium to control the time when the constitutm possessrium causes the change of real right.The lack of effect of demonstration of the constitutm possessrium can be solved by interpreting the constitutm possessrium as the real right change mode of "creditor’s right meaning+ demand-opposition".Based on this model,the constitutm possessrium can be applied to acquisition in good faith.