占有抗辩权初论——从法律关系的角度

A Preliminary Study on the Right of Defense of Possession:From the Perspective of Legal Relations

占有抗辩权是针对占有回复请求权的反对权,是拒绝回复占有的权利,是所有与占有相分离的产物。占有回复请求权是占有媒介关系的效力,占有抗辩权是占有媒介关系中,他物直接占有人及他物间接占有人可能享有的权利。占有抗辩权的成立,是由于基础法律关系的效力或法定法律关系的牵连性。占有抗辩权不同于履行抗辩权,但二者可以发生竞合。明确占有抗辩权的相关规则,对解决间接占有人与直接占有人的法益冲突,具有重要意义。

The right of defense of possession is the right of opposition to the right of request to return the possession,the right of the rejection to return the possession,and the result of the separation of ownership and possession.The right of request to return the possession is the legal effects of media relations of possession.In media relations of possession,the direct and indirect possessor regarding others’property may enjoy the right of defense of possession.The establishment of the right of defense of possession is based on the legal effects of fundamental legal relations or the relationship of statutory legal relations.The right of defense of possession is different from the right of defense of performance.However,the said two rights may overlap.It is of great significance to clarify relevant rules of the right of defense of possession for resolving conflicts on legal rights and interests between the indirect possessor and the direct possessor.