論我國《民法典》中占有的內涵與體系效應

On the Connotation and Systematic Effects of Possession in China's Civil Code

占有被《民法典》第458條不恰當地進行了限縮，將基於合同關係等本權的占有排除在物權編之外，使得基於本權的占有這種在傳統民法上可以得到物權性保護的占有脫離了物權保護。同時，也使得在《民法典》體系中已經依占有保護作為基礎的規範制度失去了根基。例如，租賃關係中承租人對第三人侵害其占有使用的情形，無法得到占有保護；尤其是在多層間接占有的關係中，區分基於本權與非基於本權的占有的法律救濟變得異常複雜。因此，有必要對占有作出體系化的統一的擴張性解釋。關於占有的性質，儘管占有作為一種事實狀態是學理通說，但其實質上是一種非權利的法律關係──受到民法規範調整的一種法律關係。占有從“作為”的視角看，也是一種行為，但不是一種法律行為，顯然不屬於我國《民法典》第161條規定的代理之範圍。《民法典》對此不僅在占有部分沒有規定，而且也沒有諸如《德國民法典》的占有輔助制度。對此，應借助於《民法典》體系對第161條作擴大解釋，使得占有也可以達到如同代理的效果。

In the Civil Code of our country, there are three research questions regarding the norms of ''possession'': (1) Can the concept of possession as stipulated in Article 458 of the Civil Code of China be integrated with the civil code system? (2) What is the impact of Article 458 in the civil code system? How to expand the interpretation of the connotation of possession in the Civil Code from a doctrinal perspective? (3) What is the nature of possession? From the provisions on possession in the Property Rights section of our Civil Code, it can be seen that (1) it excludes possession based on one's own right. (2) From the provisions of Article 462 of the Civil Code of China, it can be seen that the Civil Code adopts an objective theory that does not distinguish between possession and possession, which includes all types of possession except for the right to possess. (3) From the provisions of Articles 458-462 of the Civil Code, it seems that psychological elements are not needed: as long as possession is objectively ''possessed, '' it is protected. However, from the provisions of Articles 459-461, it is necessary to be cautious, otherwise there is no need to distinguish between good faith and malice. From the perspective of the civil code system, it seems that objective possession is sufficient. (4) Therefore, from the perspective of the normative system, China's Civil Code adopts a combination of subjective and objective models for possession. The practice of excluding property ownership from the concept of ''possession'' in the Chinese Civil Code, known as the concept of ''restricted possession'', will have the following adverse systemic effects on the Civil Code: (1) its impact on the General Provisions. The systematic effect of returning the delivered property after the legal act is invalid and revocable - cannot be achieved through ''possession return'' ! (2) The impact on the system of property rights compilation. If the denial of possession based on ownership rights conflicts with the concept of ownership, the protection of the owner will be weakened. In addition, excluding the right to possession can also have adverse effects on the lien holder and pledgee. (3) The impact on the debt system. Excluding the possibility of creditor's rights holders (those who possess the subject matter according to the contract) obtaining property rights remedies. In addition, from the perspective of the creditor's rights system, China's contract system stipulates many contracts that transfer the right of use, and these '' right of use holders'' based on contractual relationships (such as lessees in leasing relationships, lessees in financing leases) are all owners, while lessors are also owners (indirect owners) ; There is also a relationship between direct and indirect possession in contracts such as custody contracts, warehousing contracts, and pledge contracts. If these rights based possession are excluded, '' indirect possession'' will not exist, and the relationship between the lessor and lessee will only be a debt relationship. The nature of possession is not only an important and highly controversial issue in the traditional civil law theory of civil law countries in the Chinese mainland, but also one of the systems that generate different legislative examples in the civil code legislation. The author believes that possessing this ''non power state'' is not a fact, but a state protected by law and an external legal relationship, as some scholars call ''the power of law''. Its true structure should be: de facto management +legal protection. It has the characteristics of exclusivity (excluding true rights holders) and absolute legal effectiveness. Therefore, its protection is very similar to the protection of rights. On the relationship between possession protection and the essence of possession, the author strongly agrees with Jhering's viewpoint that possession is actually a legally regulated interest relationship.