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在法律上占有就是指对特定的物实施的事实上的管领和控制,从产生之初就担负着维护财产状态功能。我国的占有制度主要是借鉴《德国民法典》,将其内容精要化,体现我国特色社会主义性质的实际情况的同时规避了很多方向问题,导致在很多定义、性质上都定性模糊。在2007年颁行的《物权法》中将占有作为一编专门规定,仅有5个条文,但对最重要的占有效力问题,几乎没有任何规定,使得占有制度所发挥的作用,微乎其微。纵观各国以及一些地区对占有权利推定的立法和人们日常生活中遇到的实际问题,可以断定这一制度的完善有着重要意义。本文在论述占有制度的基础上,主要探讨占有的权利推定效力问题,同时提出一些建议。
The legal possession refers to the de facto management and control of a particular object, and from the very beginning has assumed the function of safeguarding the state of property. The system of possession in our country mainly refers to the German Civil Code, and its content is refined and the actual situation of socialism with Chinese characteristics is reflected. At the same time, it avoids a lot of direction problems and leads to qualitative and fuzzy definitions in many aspects. The Property Law, which was enacted in 2007, will have as a special section a series of articles with only five provisions, but there are very few provisions on the most important issue of possession, making the possession system a very small one. Looking at the legislation on the presumption of possession in some countries and some regions and the practical problems encountered in daily life, we can conclude that the improvement of this system is of great significance. Based on the discussion of the system of possession, this article mainly discusses the validity of the presumption of the right to possession, and puts forward some suggestions at the same time.