| 英文摘要 |
The current general theory holds that possession is only a fact and does not give rights. The purpose of protecting possession is to maintain public order. However, this kind of explanation is very rigid, not only can not explain why the simple possession facts can cause the ownership of interests, but also break through the traditional logic of private law when proving the reasons for the protection of possession. The protection of possession has the paradigm of public law and private law, and there are sharp systemic contradictions, which is especially obvious in the case where the protected possessor has been clearly identified as lacking of the right. In order to solve the above problems, it is urgent to revise the nature of possession and the purpose of possession protection. First, when the possessor owns the presumed possession of the right, no matter whether they actually own the right or not, they can obtain the ownership of possession interests and exclusive possession protection according to the presumption. When the possessor lacks the presumed possession of the right, its possession has been recognized as illegal, and it is illegal interest. So such possession belongs to the right. Secondly, the purpose of possession protection should be limited to maintaining the presumption order, and the object of protection is limited to the person presumed to own the right. So, if the possessor owns the presumed possession of the right, the possessor’s possession can no longer be protected. When it is infringed by a third party, the claim arising therefrom shall be attributed to the presumed owner, while when it is infringed by the presumed owner, the latter behavior shall be defined as legal self-help without prejudice to public order. |
