| The current Chinese Property Law adopts the generalized legislative mode of protection of possession, which attaches importance to the integrity and practicality of legal norms and endows the possessor with four different claims of protection of possession. The protection of possession and the protection of rights are mutually compatible and supplementary, but not mutually replaceable with each other. Together they form a system of dual protection of possession. Possession is a kind of fact, rather than a kind of right. All kinds of possession, including unauthorized possession, disputed possession and possession with unclear ownership, enjoy the protection of possessory action. The primary premise for protection of possession is that the current or foregone possession is/was disturbed or its further disturbances are to be feared. The possessor has to prove the status quo and the scope of the possession, otherwise there shall be no protection of possession. The question of whether indirect possession and co-possession enjoy the protection of possessory action should be determined in light of specific and concrete circumstances of each case. An agent in possession is not entitled to possession protection against any person, including the employer, without authorization from the person who exercises actual control of the possession. A damages compensation action of possession is a kind of right-based action whereas possessory action is a kind of fact-based action. There are obvious differences between the two in terms of the purpose of protection, the basis of the right of claim, adjudication rule, onus probandi (burden of proof), defense and limitation of action. |
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