Study On The System Of Extinguishing Limitation

Extinguishing limitation derived from ancient Roman Solicitor Times andformed in the period of King Daiyutu II. It is the basic system in all thecountries of continental law system. The system of extinguishing limitation wasestablished in General Principles of Civil Law of our country enacted in 1986and it is called limitation of actions. Owing to the influence from Soviet Unionand Hungary and other countries when it was enacted, it is somewhat differentfrom the ones of the countries belonging to the continental law system. Themain points are: (1) it only stipulates the extinguishing limitation without theacquiring limitation at the same time; (2) in order to embody the protection ofthe Civil Law for the public property of socialism, it stipulates thatextinguishing limitation does not apply to state property; (3) it gives the courtsthe right of citing the precedent of limitation automatically; (4) it stipulates apretty short time of limitation in order to urge the client to exercise the right asearly as possible; (5) it enlarges the right of discretion for the court and gives itthe right of lengthening the limitation. Extinguishing limitation system is not in favor of the right holder on thesurface and brings about the tense relationship between law and morality, but ithelps to maintain the present economic order of the society, to promote thestability of right-responsibility relationship, to protect the benefit of the debtor,to enhance the effectiveness of the justice and to urge the right holder toexercise the right in the earliest possible time. Extinguishing limitation takes the right of claim as the object. The obligor 4acquires the right of defense against the claim of the right holder whenlimitation comes to an end. The system of acquiring limitation should bestipulated as soon as possible in our country for the purpose of connecting withthe system of extinguishing limitation. In order to avoid the situation that "Theowner in law cannot possess the belongings and the holder of the subject mattercannot obtain the ownership", the cooperation and connection withextinguishing limitation should be paid attention to when acquiring limitation isstipulated. Extinguishing limitation takes the right of claim as the object and otherrights except the right of claim cannot apply to the stipulation. But not all therights of claim meet with the issue of limitation. It should be discussed inaccordance with the difference of the basic rights. (1) The right of the real claimis the object of extinguishing limitation. The registered real right has the powerof public faith among the public and anyone can find out the ascription of theright by consulting the registered data, therefore the right of the real claim onthe registered subject matter does not apply to limitation. (2) Because of theunlimited-time restriction of the family relationship, the right of claim in theform of identity benefit in the relationship law is not under the restriction ofextinguishing limitation. (3) It can be supposed that the right of real claimconcomitant with the certain legal relationship will arise continually during thetime of that legal relationship, therefore it should not apply to the stipulation ofextinguishing limitation, either. The starting date lies in three criterions: the occurrence of the right of realclaim, the exertion of the right of real claim and the understanding of theinfringed right. There are both advantages and disadvantages in every criterion 5and none of them can satisfy the lawmaking aim of extinguishing limitation.This is due to the fact that different lawmaking aims require differentrequirements on the starting date of limitation, which are contradictive mutually.The solution can be the application of the double extinguishing limitation, andtake the exertion of the right of real claim as the objective criterion...