On possession in civil law
First, the general theory of possession.
I. Concept and nature of possession
(A), the concept of possession
Possession is actually the possession and control of things. The object of possession is limited to things, so property rights other than things (such as patent rights) can only be established as quasi-possession, but not as possession.
In modern civil law, possession has become a system independent of ownership and other property rights. Whether the possession of the owner, the legal possession of the non-owner and the illegal possession are protected by the possession system. In China, according to the General Principles of Civil Law and other laws, possession is a kind of ownership right, but it is not recognized as an independent system. But in theory, most scholars believe that China should establish an independent possession system. Because possession is actually the control of things, it does not require the possessor to have the right to possess things. As for the standard of confirming that the possessor actually has control and domination over things, it should be confirmed from the space and time dominated by people. In space, things should be within people's power, such as houses, land occupied by users, clothes, furniture and other property placed at home belong to the owner. In time, people's control over things will last for a certain period of time before they can be possessed, such as only temporary contact. Possession cannot be protected by law because of possession, nor can it be transferred or inherited as possession, nor can it be established in an abstract state as indirect possession. Possession by the possessor is not a necessary condition for the possessor to personally control the object. Possession can also be established by the possessor through the media of others based on a certain legal relationship. There are two main situations: one is the possession established by the possessor according to the assistant, for example, the employer owns the machine according to the employee; Another situation is indirect possession, for example, the contractor directly occupies the leased property, which constitutes indirect possession to the lessor.
(2), the types of possession
According to the different status of possession, possession can be divided into different types:
1, independent possession and possession by other owners. This is a classification based on the meaning of the owner. Independent possession refers to the possession of things belonging to oneself (all meanings); Possession without any meaning, possession dominated by a certain relationship is his possession.
The meaning of "all" in independent possession means that it is owned by all people, and they don't need to be real owners, nor do they need to be confident to be all people. Therefore, the owner's possession of his own property is independent possession, and the thief's possession of stolen goods is also independent possession. As for the possession of other owners, for example, pawn shops possess collateral, lessees possess leased property, and pledgees possess pledged property.
The significance of independent possession, which is different from other owners' possession, lies in that possession, as the prescription and preemption elements of ownership acquisition, should be independent possession. In addition, when the possession is damaged or lost, the scope of responsibility of the owner and his owner is different.
2. Direct possession and indirect possession. This is a classification based on whether the possessor actually owns something. Direct possession refers to the actual possession of things, such as the house where you live and the clothes you wear, which are all direct possession; Indirect possession refers to the indirect possession of property based on a certain legal relationship, and the actual possessor of the property (that is, the direct possessor) has the right to claim for return. The characteristic of indirect possession is that there is a specific legal relationship between indirect possessor and direct possessor. Based on this legal relationship, the indirect possessor has the right to return it to the direct possessor. For example, based on the legal relationship of pledge, lease and custody, the pledgee, lessee and custodian possess the subject matter and are direct occupiers, while the pledgor, lessor and trustee who enjoy the right to income are indirect occupiers.
The significance of the difference between direct possession and indirect possession lies in the different acquisition means and protection methods of these two kinds of possession.
3. Illegal possession and illegal possession. This is classified according to whether possession is based on rights. The so-called ownership refers to the right to possess things due to legal reasons, such as ownership, superficies, pawning, pledge, lien, etc. Possession means possession with rights, such as possession of land by superficies; Unauthorized possession refers to possession without original rights, such as the possession of lost property by the finder.
The significance of the difference between possession with right and possession without right lies in that the possessor without right has the obligation to return the original thing when requested by the owner; In addition, possession, as an important element of lien, is limited to possession.
4. Possession in good faith and malicious possession. This is the classification of unauthorized possession according to the subjective psychological state of the possessor. Possession in good faith is the possession of the right that the possessor doesn't know he doesn't have. Malicious possession is the possession of the right that the possessor knows that he does not possess.
The significance of the difference between bona fide possession and malicious possession is that bona fide possession and malicious possession have different acquisition prescription periods; Immediate acquisition is based on bona fide possession; In addition, bona fide possession and malicious possession are protected to varying degrees.
5. No-fault possession and wrong possession. This is a new classification of bona fide possession, and the distinguishing standard is whether the possessor knows whether his right without possession is at fault. No-fault possession is the possession of rights that the possessor doesn't know and shouldn't know he doesn't possess; Negligent possession is the possession of the right that the possessor should know, but he doesn't know that he didn't possess it because of negligence. The significance of the difference between negligent possession and negligent possession lies in the different limitation periods of real estate acquisition. In addition, there are significant differences between non-negligent possession and negligent possession in the effectiveness of possession.
6. Possession in good faith and possession in defect. Flawless possession refers to bona fide and faultless, peaceful, open and continuous possession; Defective possession refers to malicious negligence, violence, secret and discontinuous possession. The difference between flawless possession and defective possession
It means that possession in prescription acquisition must be flawless possession. The significance of distinguishing flawless possession from defective possession is that possession in prescription acquisition must be flawless possession.
Second: about the effectiveness and protection of possession.
I. Constructive possession
(a), the fact that vertebral set
According to the principle of evidence law, anyone who claims the existence of facts for his own benefit must bear the burden of proof. However, for possession, the laws of various countries stipulate some factual presumptions, exempting the possessor from the burden of proof. First of all, it is presumed that the possessor has all the meaning or is owned by himself; Secondly, in the two periods before and after possession, if there is evidence of possession, it is considered as continued possession.
Different possession states have different effects. However, if we want to prove the various States of possession one by one, it is not only difficult to do in fact, but also contradictory to the intention of protecting possession independently from rights. Therefore, in order to protect the possessor, the law should set various presumptions for the possessor based on the general situation of social life and exempt him from the burden of proof. This presumption should include the presumption that the possessor obtains possession of all meanings in good faith, peacefully and openly.
Yes; If there is evidence of possession before and after possession, it is presumed to be continued possession.
(2) Presumption of rights
The purpose of possession system is to ensure the security of transactions by protecting the superficial possession facts. Therefore, the effectiveness of possession must be presumed by rights, that is, the rights exercised by the possessor are presumed to be legal. Of course, the presumption of this law also has its factual basis, that is, in general, the possessor occupies it based on his own rights, and the unauthorized possessor is only an exception. The possessor not only has the fact of possession, but also has the right of possession, so the presumption of right is sufficient for the general legal presumption.
What is the right scope of presumption of possession? Because the real estate is registered as a public notice of property rights, the effect of registration is naturally stronger than that of possession, so the presumption of this right is of no practical significance as far as real estate is concerned. As far as movable property is concerned, the scope of this presumed right is exercised by the possessor as long as it is the right to possess the subject matter (except the right not to possess the subject matter), whether it is property right (all)
Right, pledge right, lien) or creditor's rights (lease right, loan right) can be. For example, when the possessor exercises ownership of his possession, he is presumed to have ownership; When exercising the pledge, it is presumed that it has the pledge; When exercising the right to borrow, it is presumed that it has the right to borrow.
The validity of the presumption of rights can be proved by the following points: (1), the possessor who is presumed by rights is exempted from the burden of proof, that is, when there is a dispute about whether there is a substantive right, the possessor can directly invoke the presumption against the counterpart without having to prove that he is the obligee. Of course, if the other party disproves it, the possessor still has to provide evidence to overturn it. (2) Presumption of rights can be invoked not only by the obligee himself, but also by a third party. For example, if the borrower borrows something from the possessor, when the real owner of the thing requests to return it, the borrower can invoke the presumption of the owner, that is, the borrower is the possessor. At this time, if the owner wants to return the original, he must prove his ownership. (3) The presumption of rights is generally for the benefit of the possessor. For example, Article 1006 of the German Civil Code clearly stipulates that it is for the benefit of the possessor. However, in some cases, when it is not beneficial, it can also be called. For example, if the property owner is presumed to be the property owner, then the burden of the property, such as taxes and fees, should also be borne by the owner. (4) The presumption of rights is negative, and the possessor shall not use this presumption as positive evidence for exercising his rights.
Second, the relationship between the possessor and the claimant.
The relationship between the possessor and the claimant refers to the rights and obligations of the claimant when he is requested to return the possession. This relationship often coincides with the systems of negotiorum gestio, tort, and termination of contract, at which time the parties can freely choose which clauses to apply. As for the return relationship based on a certain legal relationship or legal provisions, such as the property right relationship based on pledge or lien, the debt relationship based on lease or loan, or the relationship of returning possession to the obligee based on management without cause, unjust enrichment or infringement, it should be carried out according to its basic legal relationship or legal provisions.
1, the owner's use of things, income. The bona fide possessor's use and income from possession should be based on his presumed rights, and the types of such presumed rights should be limited to the types of rights exercised by the possessor for possession. For example, the right to use the leased property is exercised, that is, it is presumed that it has the right to use the leased property. People who possess property in good faith use the income obtained from possession by virtue of their determined rights. However, the right to use and benefit of bona fide possessors must be their presumed rights, which have the right to use and benefit in content. If the presumed right has no right to use or benefit, such as pledge or lien, the possessor has no right to use or benefit. Possessors in good faith should use the possession in a way that is not prohibited by law and benefit from it according to the purpose of possession. If the real estate or chattel is occupied by the possessor, the creditor may request the return of the original and its fruits, but shall pay the necessary expenses incurred by the bona fide possessor for the maintenance of the real estate or chattel. The malicious possessor should return the evil interests of the possession when returning the possession: if the evil interests are destroyed or lost due to negligence, or if they should be collected but not collected, the malicious possessor should compensate for the losses.
2. Liability of the possessor when the possession is damaged or lost. If the possession is damaged or lost, the possessor shall be liable for compensation to the claimant. The scope of this responsibility varies according to whether the possessor is in good faith or bad faith. A bona fide possessor is not liable for compensation for damage caused by the use of real estate or movable property in his possession; The malicious possessor shall be liable for compensation. If the real estate or chattel in possession is damaged or lost, and the right holder of the real estate or chattel requests compensation, the possessor shall return the insurance money, compensation or compensation obtained from the damage or loss to the right holder; If the damage of the obligee has not been fully compensated, the malicious possessor shall also compensate for the loss.
3. The possessor's right to claim reimbursement of expenses. In the process of possession of the subject matter, the possessor spent money on the subject matter, and the scope of his claim for repayment varies according to its nature, necessity, benefit, malice or goodwill. Possessors in good faith have the right to claim compensation for the necessary expenses incurred by preservation, that is, the expenses for maintaining the present situation of preservation and preventing its damage and loss. Possessors in good faith can also demand the return of the benefit expenses, that is, the expenses incurred in improving possession. But you can only ask for repayment within the existing value of the possession; If the added value no longer exists, you can't ask for repayment. This is because the benefit cost is different from the necessary cost, not the necessary cost, but depends on the will of the owner. Therefore, it is unfair that such expenses should be borne entirely by the return requester. Malicious possessors can only claim the necessary expenses, but not the beneficial expenses.
Third, the protection of possession
Possession is a fait accompli, even if it conflicts with the rights of other parties, it should not be infringed by illegal acts. For example, if A invades (e.g. steals) B's TV set, C can't invade it again, because A has no right to possess it. Therefore, the protection of possession is the protection of social peace and stability. The possessor has the right to help himself and the right to claim possession protection against illegal acts.
(A), the owner's right to help themselves
When the possession of the possessor is infringed, if the infringer has no stronger rights than the possessor, the possessor has the right to save himself according to the possession. The owner's right of self-help includes: (1) the right of self-defense. The occupier can defend himself against the act of seizing or obstructing his possession, such as invading the occupier's house, such as expelling the intruder from the house. The exercise of the right of self-defense focuses on the factual state of possession, so only the direct possessor can exercise it, and the indirect possessor does not have this right. (2) Right of self-retrieval: that is, the possessor has the right to retrieve the possession seized by others. For example, when the possessor's movable property is illegally occupied by others, the possessor can retrieve it on the spot or through tracing.
(2) the right to claim possession and protection
The right of claim for possession protection means that when the possession of the possessor is illegally infringed, the possessor can directly claim the right from the infringer or bring a lawsuit to the court to protect his possession. The claim mainly includes the following two items: (1) and the claim for returning possession. When the possession is seized, the possessor has the right to demand the return of his possession. According to China's property law, if the possessor fails to exercise the right of claim to return the original property within 1 year from the date of possession, the right of claim will be extinguished. (2) the right to exclude the right to claim possession. When the possessor's possession is damaged, so that the possessor can't completely control his possession, the possessor has the right to request to remove the obstruction.
When the behavior of others does not cause actual nuisance to the possessor, but there is a possibility of nuisance, the possessor may also request to prevent such nuisance.
The lawsuit brought by the possessor according to his claim for possession protection is called the lawsuit of possession, and its purpose is to maintain the possessor's control over the facts of things. Different from the action of possession, the action of this right aims to determine the relationship between rights and obligations. Therefore, the lawsuit of possession and the lawsuit of right are harmless, that is, if the possessor has the right to possess, he can file a lawsuit of possession or a lawsuit of right. They can be mentioned separately or at the same time. However, the litigation of this right belongs to the final protection and plays a decisive role in some cases. For example, in the lawsuit of this right, the possessor can't bring a lawsuit of possession, because the possession of the property by others has been confirmed.
I. Constructive possession
(A), the presumption of fact
According to the principle of evidence law, anyone who claims the existence of facts for his own benefit must bear the burden of proof. However, for possession, the laws of various countries stipulate some factual presumptions, exempting the possessor from the burden of proof. First of all, it is assumed that the possessor occupies all its meanings or occupies it for himself; Secondly, in the two periods before and after possession, if there is evidence of possession, it is presumed to be continued possession.
Different possession states have different effects. However, if we want to prove the various States of possession, it is not only difficult to do in fact, but also contradictory to the intention of separating possession from rights and protecting it. Therefore, in order to protect the possessor, the law should set various presumptions for the possessor based on the general situation of social life and exempt him from the burden of proof. This presumption should include: the presumption that the possessor has all meanings in good faith, peacefully and openly; If there is evidence of possession before and after possession, it is presumed to be continued possession.
(2) Presumption of rights
The purpose of possession system is to ensure the security of transactions by protecting the superficial possession facts. Therefore, the effectiveness of possession must have the presumption of rights, that is, it is presumed that the rights exercised by the possessor on the possession are legal. Of course, the presumption of this law also has its factual basis, that is, in general, the possessor occupies it based on his own rights, and the unauthorized possessor is only an exception. The possessor not only has the fact of possession, but also has the right of possession, so the presumption of right is a legal presumption in a general sense.
What is the right scope of presumption of possession? Because the real estate is registered as the way of real right publicity, the effect of registration is naturally stronger than the presumption of possession; Therefore, as far as real estate is concerned, the presumption of this right has no practical significance. (Pay attention to distinguish the possession of commercial housing here. ) As far as movable property is concerned, the scope of this presumed right can be any property right (ownership, pledge, lien) or creditor's right (lease use right, loan right), as long as it is the possession of the subject matter exercised by the possessor (except the right not to possess the subject matter). For example, when the possessor exercises ownership of his possession, he is presumed to have ownership; When exercising the pledge, it is presumed that it has the pledge; When exercising the right to borrow, it is presumed that it has the right to borrow.
The validity of presumption of rights can be interpreted as: (1). The possessor whose right is presumed is exempted from the burden of proof, that is, when there is a dispute about whether there is a substantive right, the possessor can directly invoke the presumption against the counterpart without proving that he is the obligee. Of course, if the other party disproves it, the possessor still has to provide evidence to overturn it. (2) Presumption of rights can be invoked not only by the obligee himself, but also by a third party. For example, if a borrower borrows something from the possessor, the borrower can also invoke the presumption of ownership of the borrower as the possessor when the real owner of the thing demands to return it. At this time, if everyone wants to return to the reduced object, they must prove their ownership. (3) The presumption of rights is generally for the benefit of the possessor. For example, Article 1006 of the German Civil Code clearly stipulates that it is for the benefit of the possessor. However, this right can also be invoked under certain circumstances that are not in their interest. For example, if the possessor of the property is presumed to be the owner of the property, then the burden of the property, such as taxes, should also be borne by the possessor. (4) The presumption of rights is negative, and the possessor shall not use this presumption as positive evidence for exercising his rights.
Second, the relationship between the possessor and the claimant.
The relationship between the possessor and the claimant refers to the rights and obligations of the claimant when he is requested to return the possession. This relationship often conflicts with the system of negotiorum gestio, the system of tort and the system of contract termination. At this point, the parties are free to choose which terms apply. As for the return relationship based on a certain legal relationship or legal provisions, such as pledge, lien and other property rights relations, or the relationship based on debts such as lease and loan, or the relationship based on management without cause, unjust enrichment, infringement and other legal provisions to return possession to the obligee, it should be carried out according to its basic legal relationship or legal provisions, and there is no need to make other provisions, so it is not explained here.
1, the owner's use of things, income. Possessors in good faith have the right to use the possession and profit from it. This is an important right of bona fide possessors. Malicious possessors have no such right. Possessors in good faith should use the possession according to their presumed rights and benefit from it. This kind of presumption right should be limited to the possessor's right to possession. For example, the right to use the leased property is exercised, that is, it is presumed that it has the right to use the leased property. Possessors in good faith use the proceeds of possession with their presumed rights. However, the right to use and benefit of bona fide possessors must be their presumed rights, which have the right to use and benefit in content. If the presumed right has no right to use or benefit, such as pledge or lien, the possessor has no right to use or benefit. Possessors in good faith should use the possession in a way that is not prohibited by law and benefit from it according to the purpose of possession.
2. Liability of the possessor when the possession is damaged or lost.
3. The possessor's right to claim reimbursement of expenses. During the possession of the subject matter, the possessor spent money on the subject matter, and the scope of his claim for repayment varies according to his nature, necessity, benefit, malice or goodwill. (1). Possessors in good faith have the right to claim compensation for the necessary expenses incurred for preservation, that is, the expenses for maintaining the status quo of preservation and preventing its damage and loss. (2) The malicious possessor can only request to repay the necessary expenses, but cannot request to repay the beneficial expenses.
Third, the protection of possession
Possession is a fait accompli, even if it conflicts with the rights of other parties, it should not be infringed by illegal acts. For example, if A invades (e.g. steals) B's TV set, C can't invade it because A has no right to possess it. Therefore, the protection of possession is the protection of social peace and stability. The possessor has the right to help himself and the right to claim possession protection against illegal acts.
(A), the owner's right to help themselves
When the possession of the possessor is infringed, if the infringer has no stronger rights than the possessor, the possessor has the right to save himself according to the possession.
The owner's right of self-help includes: (1) and the right of self-defense. The occupier can defend himself against acts that violate or hinder his possession, such as invading the occupier's house, such as expelling the intruder from the house. The protection of the right to self-defense focuses on the factual state of possession, so only the direct possessor can exercise it, and the indirect possessor does not have this right. (2) Self-reliance. That is, the possessor has the right to take back the possession that has been occupied by others. For example, when the possessor's movable property is illegally occupied by others, the possessor can retrieve it on the spot or through tracing.
(2) the right to claim possession and protection
The right of claim for possession protection means that when the possession of the possessor is illegally infringed, the possessor can directly claim the right from the infringer or bring a lawsuit to the court to protect his possession. The claim mainly includes the following two items: (1) and the claim for returning possession. When the possession is seized, the possessor has the right to demand the return of his possession. (2), eliminate the nuisance of possession. When the possessor's possession is damaged, so that the possessor can't completely control his possession, the possessor has the right to request to remove the obstruction. When the behavior of others does not cause actual nuisance to the possessor, but there is a possibility of nuisance, the possessor may also request to prevent such nuisance. The lawsuit brought by the possessor according to his claim for possession protection is called the lawsuit of possession, and its purpose is to maintain the possessor's control over the facts of things. Different from the action of possession, the action of this right aims to determine the relationship between rights and obligations. Therefore, the lawsuit of possession and the lawsuit of rights do not interfere with each other, that is, if the possessor has the right to possess, he can file a lawsuit of possession or a lawsuit of rights. They can be mentioned separately or at the same time. However, the litigation of this right belongs to the final protection and plays a decisive role in some cases. For example, in the lawsuit of this right, the possessor can't bring a lawsuit of possession, because the right of possession of others has been confirmed.
Third: the acquisition and elimination of possession
I. Acquisition of possession
The acquisition of possession, from the factual state of possession, is the occurrence of possession Depending on whether it is direct possession or indirect possession, the way to obtain possession is different.
(A), the acquisition of direct possession
1, directly owned by the original acquisition. Direct possession is actually the control and domination of things. Therefore, as long as it is not the possession of others and has de facto control over things, it is the original acquisition of possession. For example, the possession of ownerless things, the collection of lost things and drifting things all belong to the original acquisition of direct possession. Because the original acquisition of direct possession is purely a factual act, not a civil act, the person who acquires such possession is not required to have corresponding capacity, and the person without capacity can also directly acquire possession of things according to his own behavior. In addition, this method of obtaining possession does not necessarily require its own strength to directly act on the object. As long as the thing is under its own control, it can be considered that it has been possessed. For example, a house is not occupied by people. As long as it is locked to prevent others from entering without authorization, it is occupied by people. If you leave an item at home or in a hidden place, you have it.
2. Derivative acquisition in direct possession. Derivative acquisition of direct possession refers to possession obtained through the transfer of others. The main reasons are transfer and inheritance. Assignment is the possession obtained according to the behavior of the parties to transfer possession. The transfer of possession requires the intention of the parties to transfer possession. Japan is often accompanied by other legal relations, that is, it is often carried out at the same time as the establishment or transfer of ownership or other possession rights (such as pawning right, superficies right and pledge right). The transfer of possession must also include the delivery of possession, mainly the actual delivery, but also the simple delivery and the change of possession. Because possession dominates the facts of things, movable property and real estate are transferred according to delivery, and there is no registration problem in the transfer of real estate possession. Possession can be transferred from the decedent to the heir according to the inheritance relationship. The possession obtained by inheritance is the result of generalized inheritance of rights and obligations, so the possession obtained by the heir is the same as that obtained by the decedent in terms of type, state and defects.
(2) Acquisition of indirect possession
1, the original acquisition of indirect possession. The original acquisition of indirect possession refers to the generation of indirect possession. There are several ways to create it: (1). The direct possessor creates indirect possession for himself. The direct possessor can transfer his own possession to others, thus creating indirect possession for himself. For example, if the owner sets the mortgage right, superficies, pledges and lease use rights for others, the mortgage right, superficies, pledgees and lessees obtain direct possession of the property, and the owner himself has the right to request the return of the property and becomes an indirect possessor. (2) The direct possessor creates indirect possession for others. This kind of indirect possession is mostly carried out by changing possession. For example, A sells his bicycle to B, but A still needs to use it, so he enters into a loan or lease contract with B, so that B can obtain indirect possession of the bicycle.
2. Derivative acquisition in indirect possession. Derivative acquisition of indirect possession refers to possession obtained based on the transfer of others, which mainly has two forms: transfer and inheritance. The transfer of indirect possession is to transfer its indirect possession to others by means of instruction delivery. For example, when the lender (indirect possessor) transfers the ownership of the borrowed property to others, it does not need to take it back and then deliver it to the transferee, as long as the right to claim the borrower's return is transferred to the transferee, and then the transferee acquires its indirect possession. Indirect possession is a kind of possession, which can be obtained naturally through inheritance, but the heir should inherit the defects of possession at the same time.
Second, the elimination of possession
The elimination of possession means that the possessor has lost the de facto control over things. But the elimination here should refer to the clear loss of possession of things. If it is only temporarily unable to exercise its control and domination, if things are occupied by others, possession will not be lost. The elimination of possession should be based on whether the possessor still has de facto control and control right. Therefore, if it is based on the owner's intention, such as giving things to others and giving up possession of things, or if it is not based on the owner's intention, if possession is stolen or lost, the owner loses control and domination of things, and possession is eliminated. When possession is lost, the possessor's de facto dominant position has been lost, and possession is destroyed. As for indirect possession, when the possessor loses the right to demand the return of things, his possession disappears.