The Research On The Value And The Structure Of The Prescription System In Civil Law

This paper revolves around how to establish the justification and value of the prescription system and then reconstruct the prescription system of modern civil law system. It mainly includes the following contents.The first part aims at setting up the definition of the prescription system in the light of its function.The second part is about the re-establishment of justification and value of the prescription system. Prescription system in ancient Rome is making up for the disadvantages of absolute formalism of ownership transaction and expansion of the requirements of the civil law. As for the ethical defects of prescription system, we need to reshapes its legitimacy. The prescription system today, its function characteristics and the benefit balance mechanism has been far from ancient Rome to the pursuit of fairness, justice and morality. Since modern times, the system of limitation to some extent has become the burden of the obligor to escape its obligations, the property right holder usurping the "tool" law of the property. The prescription system in the traditional civil law has been questioned of moral defects. Even so, the modern civil law is still necessary to accept the Roman law system as a precious legal heritage. The function of the system should be a time limitation to the exercise of the right, which helps to establish its legitimacy foundation. On the basis of reasonable prescription system, we should construct the logic self-consistent and self-sufficient system prescription system in our future civil code.In view of the legitimacy of prescription system, there exist a lot of theories, such as urging to exercise rights, maintaining social orders, alleviating proof difficulties, protecting reliance interests, etc. Theorists confuse the system function and limitation of legitimacy foundation, so would not be enough to eliminate ethical and moral defects of prescription system. By analyzing the minority view of "presumption of rights", namely from the prescription system itself and find out the beneficial path to explore the aging system of legitimacy. The creditor overdue is not advocating a creditor’s rights and cause the debtor trust’s abandonment of its claims; Owner fails to claim back the property possess people trust people’s abandonment of property ownership. The core value of prescription system is the reliance interest protection of related person in the trade, and then achieves the value of maintaining existing trading order. It turned over to a certain extent the elimination of oblige "unearned" ethical dilemma, thus the prescription system obtained the legitimacy foundation.The third part is about the existence or abolishment of acquisitive prescription. This problem in the theoretical circle has been controversial; the trade-off of the system in the legislative practice in China is ambiguous. This paper argues that acquisitive prescription today has lost the foundation of the system. The so called acquisitive prescription system "promote the best use of the real right" is far-fetched. Holder of the ownership is mainly manifested on the interests of the state of an object to maintain and control, belong to the right of "state", there is no "delayed in exercising" problem, and thus prescription system has no use of ownership. Modern usufruct in property law, bona fide acquisition system and protection system can make up for the value of the defective after abolishing acquisitive prescription system, and to maintain our country civil law value choice of inertia. In the future civil code, we should not adopt the acquisitive prescription system in our country.The fourth part is about categorization and new dual structure of prescription system. After excluding acquisitive prescription system, it is necessary to reclassify prescription system. From the legal effect, the coexistence of negative prescription and acquisitive prescription in traditional civil law has led to overlap of function and waste of system. Our current legislative provisions of prescription system are too fragmented and have the tendency of emphasizing prescribed period for litigation rather than other prescription system. And from the name, the expression of existing types of prescription system has shortcomings of diversity, confusion and ambiguity. This paper has established the basis of reasonable classification of prescription system, starting from studying the object of prescription system. And it constructed a new binary structure of prescription system based on different legal effects when the prescription is over. That is untitled prescription system and ineffectiveness prescription system.The fifth part is about the right-loss prescription system. The right-lose prescription system is a typed result based on extinction of subjective right when the prescription is over. And the "right" refers to the right of formation and the right of performance based on legal provisions and parties’agreements. In this way, the guaranty period, scheduled period, period of retrieving the lost property, period of obtaining the lost property and lodged property by country and period of subject matter quality objection in sales contract will be involved in the untitled prescription system, so will be the period of recognition of the subject matter in trial sales contract, the period of legatee accepting bequests, the period of usufruct and the period of protection of intellectual property rights. And from this, untitled prescription system will unify these scattered prescriptions and lays the foundation for the establishment of systematic prescription system of civil law in our country, paralleling with ineffectiveness prescription system.The sixth part is about the efficacy-loss prescription system. The efficacy-loss prescription is a typed result based on a part of the effectiveness (or power) loss of rights when the prescription is over. Its connotation and extension are same as the traditional civil law statute of limitations (negative prescription) system. However, China’s current system of the statute of limitations still remains controversy in determination of the object, the start counting and length of the period and effectiveness issue. The object of ineffectiveness prescription is creditor’s rights, rather than right of obligatory claim. When the prescription is over, it does not lead to the extinction of subjective right, but weakens the effect of creditor’s rights request. That is, once the debtor puts forward to perform the defense, the power of creditor’s rights request will lose (into the nature of creditor’s rights). So this paper has put forward the reasonable suggestions of perfecting our country’s current system of the statute of limitations.The last part is about design of prescription system of civil code. The choice of classification and content of the prescription system ultimately prepares for the establishment of civil code. So based on the analysis of the structures and contents of the civil code and the civil law in our country, this paper has carried on beneficial attempt to design the prescription system of civil code by using the general-special, abstract-concrete thinking model. Also, based on our country’s legislation situation and the tradition of law, in this paper, the Pandekten legislative mode was chosen. In addition, the main-sub model was fully integrated into civil and administrative procedure in our country to implement the prescription system of new dual type system. This design can make the prescription system give full play to its functions and we hope it can reflect its value in the future civil code.