论占有的性质

占有制度保护的对象本质上是一种利益。关于占有的性质存在“事实说”、“权利说”、“法益说”,“事实说”更符合占有利益的临时性、可推翻性的特点。法律特别规定保护占有这一事实秩序,可以实现维护社会秩序稳定和保护潜在本权的制度功能。衡量占有成立的标准是管领力的有无,而观念占有和间接占有虽与物没有物理性接触,但只具有对物的管领力同样可成立占有秩序。

The Characteristics of Possessing

The possessing system is to protect a kind of benefit.There are many ideas about the characteristics of possessing."Fact possessing" is more reasonable and in accordance with the characteristic of being temporary and repudiated.Protective possessing should be stipulated in the law to make the society stable and protect potential origin right.It can be examined by the jurisdiction right.Although possessing-in-idea and indirect possessing don't have real contact with the object,they can be regarded as possessing order because of its jurisdiction right.