Stan faktyczny czy prawny? – czyli o naturze posiadania raz jeszcze
Factual State or Legal State? – One More Time about the Nature of Possession
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Title issue that will be discussed in this article is a dispute, which began during the postglossators, as to the nature of possession, it means whether it is a legal state or fact. In its resolution doesn’t help a multiplicity of types of possession, which at least six were distinguished by the ancient Romans. Polish legislator continues this trend, because now in Polish law occur, modeled on the roman tradition, possession of things and possession of law, and modeled on the concept of Germanic possession spontaneous and possession dependent. From the roman theory derive contemporary elements of possession, however, have a different meaning. Today very important role is played by factor of will (animus), which allows distinguish autonomous possession from a dependent possession. This is confirmed in the jurisprudence of the Polish Supreme Court, which confirms that, in contrary to Roman law, under Polish law it is possible to transform dependent possession in to spontaneous possession, just by having the will clearly disclosed. Exceptionally there are also situations where about the character decides objective element, ie. The rule of law, with the result that spontaneous possessor may act as a wielder. Possession is certainly a legal institution, but it does not justify the statement that it is a legal state that without legislation would not exist. The author strongly inclined to consider that possession is the factual state, because its recognition as a legal state would make unjustified functioning of acquisitive prescription, which has been introduced precisely in order to ensure legal acceptance of long-term relations of fact.
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