Romantyczne inspiracje i bariery polskiej dyskusji o posiadaniu w XX wieku
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Twentieth century Polish legal debate on possession adds an original element to the European legal tradition. The author has focused on the inspiring and limiting impact of the legal experience on this field. Legal debate on possession is meant here as legal experience of the discussion of academic lawyers, statutory regulations and judicial practice. The structure of the paper reflects three – distinguished be the author – key issues of this debate: how to precise the object of possession in the positive law? What should be the function of the possessor’s intention in the statutory regulation this legal concept? Are possessory remedies, if independent from the title to the object, legitimate and if so: should these remedies be limited by an exceptio iuris? Each question provokes tension between tradition and reinterpretation of the reasonability of possessory remedies. That tension shows the links between possession and political and economic context of law in action. The controversies have been accompanied by yearning for the balance between tradition and practicality. This Polish legal experience enriches historical-comparative discussion on the evolution and changes of the concept of possession in the Roman law tradition. The author concludes: in democratically made and independently applied private law, the possessory remedies should not be completely separated from the protection of property rights.
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