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POSSESSION PROTECTION
IN CONTINENTAL EUROPEAN
LAW
KETEVAN KOCHASHVILI
Assistant Professor at the Tbilisi State University, Private Law. PHD
Presented Article describes so-called possession protection problem. Originating
from the Roman Law, recognition of a person as a possessor is related with
the independent possession capability. Possession protection means protection of
a person individually, based on the fact of possession, independently from jura in
re.
Decision made in the possession process determines condition of parties in
the following process. Plaintiff, that maintained possession on the disputed items,
is respondent on the following trail. Burden of proof lies with the plaintiff and
protection of respondent’s position is simplified: there is a presumption that possessor
is owner.
Possession protection is typical for the Continental European law. Relevant
norms are strengthened by German, French, Italian civil codifications. As far as
Georgian Civil Code is similar to the European private law, it also stipulates protection
on possession. Common Law system does not recognize possession protection
institute, where protection of property and possession is carried out through
delict law suits because their violation is considered as delict.
In civil doctrine, theories on the protection of possession are divided as absolute
and relational theories. Relational theories search for the reason of possession
beyond possession, for example, protection of public order, maintenance of
civil peace, protection of a person from violence and providing safeguards for the
interests of an owner. According to the absolute theories, through providing pubic
order, it protects free will among the individuals.
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