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2 In relation to the Property Law of China:
(a) explain the legal basis for creating legitimate possession, and the rules for determining the matters arising from possession;
(b) state the right of claim of a LEGITIMATE POSSESSOR against various tortuous activities that infringe upon or impair the possession, or damage the immovable or movable property under a legitimate possession;
(c) state the rules of compensation to a RIGHT HOLDER for any immovable or movable damaged, destroyed or lost by a possessor.
答案:
2. This question requires candidates to explain the situations that create legitimate possession, state the right of claim of a possessor against various tortuous activities and explain the rules of compensation to a right holder for his property under the Property Law of China.
(a) In accordance with Article 241 of the Property Law, legitimate possession can be created on the basis of a contractualrelationship. Any use, proceeds and liability in relation to the possession of the immovables or movables shall be governed by the contract. However, the provisions of law shall be applied to deal with the matters concerning the use, proceeds and liability that arise from legitimate possession of immovables or movables if there is no such stipulation in the contract or the stipulations are not clear.
(b) In accordance with Article 245 of the Property Law, where a movable or immovable under possession is infringed upon, the possessor is entitled to request the return of the original property. Where any act impairs the possession, the possessor shall be entitled to request the elimination of impairment or danger. Where any damage is caused by infringement or interference,the possessor shall be entitled to claim damages.
(c) In accordance with Article 244 of the Property Law, a right holder shall be entitled to request the return of any insuranceproceeds, damages or indemnities paid on the damage to or destruction or loss of his property which is under a possession.Where such compensation falls short of adequate compensation for the damage to the right holder, the mala-fide possessor shall be liable to indemnity the holder.
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