On Legislation System Of Prescription In Chinese Civil Law

The summing up and examining the traditional conception of prescription reveals that civil prescription is a legal system that has the civil rights restrained from being exercised if the holder of civil rights has ignored his rights for a period. The principal aim of prescription is to preserve the social relations of fact and stabilize the social order. In history, prescription restrains the obligee from exercising his rights in two methods -extinguishing the rights or making the obligor acquire rights, which causes to produce two basic types of civil prescription including acquisitive prescription and extinctive prescription. There should be only property rights of control which can be acquired by the obligor in accordance with acquisitive prescription. Though both real right and incorporeal property right belong to property right of control, they are different from each other in nature, which make them need different conditions and cause different effect on the obligee when they are acquired by the obligor due to acquisitive prescription. So the acquisitive prescription of real rights and the acquisitive prescription of incorporeal property rights become two types of acquisitive prescription. Meanwhile, there should be only rights to petition and rights of formation which can be extinguished according to extinctive prescription. Because there are differences in nature between rights to petition and rights of formation, some different rules are applied when they are extinguished due to prescription. So the extinctive prescription of rights to petition and the extinctive prescription of rights of formation are two types of extinctive prescription. Therefore, a centralized legislation model should be adopted to establish the system of prescription in order to embody that prescription is a legal organic unity and a basic system of civil law.