Study Of The Several Issues Of Limitation Of Legal Proceedings System In China

The Time Limited Efficacy System is one of the basic systems in China's civil law, which is beneficial to establishing the social economic order, surprising and urging the obliges to exercise their rights timely, and ensuring that the court of the people can solve various civil cases timely and accurately. However, because the present Time Limited Efficacy System is regulated a little too simply, the disciplines and the spirit of making law are not in accordance with each other and they usually tend to protect the interests of the debtor, more over, there are many problems that need to be made explicitly and improved, this essay is based on trial practice and is guided by the basic theory in law. By borrowing some regulations about Time Limited Efficacy System in laws of the Taiwan province, Macao and some other countries, it aims at the effect, the nonego, the period and other problems of the time limited efficacy and state some practical opinions and advices, in order to achieve the effect of casting a brick to attract a jade and perfect jointly the Time Limited Efficacy System in China. First, as to the problem of the effect of the Time Limited Efficacy, there are mainly three sayings in every nation's Civil Law theory. They are the theory of exterminating the rights of the entities, the theory of exterminating the rights of litigation (including the theory of exterminating the suing right and the theory of exterminating winning lawsuit) and the theory of contradicting rights occurrence.The effect of the Time Limited Efficacy in China adopts the theory of exterminating winning lawsuit.Whereas the theory of contradicting rights occurrence conforms with the conception of the Civil Law and private law' self governing, corresponds to the developing direction of the civil Sue's conformation from authoritism to agentism, and is in accordance with Judicial explanations concerned from the People's Supreme Court. Other theories all have some unreasonable points. The effect of the time limited efficacy should be changed from the theory of exterminating winning lawsuit rights to the theory of contradicting rights occurrence. The secondary rights subordinate to the major rights. In principle, the secondary rights have the same fate in law. If the major rights lose the suing protection because of the loss of suing time efficacy, the secondary rights will have the same fate.However, since the hypothec, quality rights or lien and other guarantee rights have the real rights quality, we should make special regulations when making laws, that is the fulfillment of the major claim's suing time efficacy guaranteed by the collateral rights will not affect the performance of the collateral rights. The claim, which is at the end of its suing time efficacy, will not lose its entity rights. Due to the function of the claim's keeping power, the claim, which is at the end of its suing time efficacy, will not lose its entity rights. Even though the obligors don't know the expire of the time efficacy when performing, the creditors still have the right to accept the performance and the obligator shouldn't ask for the retuning of it. According to the nature of the offset, powers and functions, and the present condition of the regulated short period of the suing time efficacy in China, it should be regulated that all the claims suitable for offsetting, no matter whether they are out of the suing time efficacy, should be offset. When the suing time efficacy expires, the contract formed by agents of the two parties, or the obligator's promise of performing its obligation will neither do harm to the communal interests and good customs nor betray the compulsory regulations of the Time Limited Efficacy System and the aim of establishing it. Moreover, it is in accordance with the theory of contradicting rights occurrence adopted by the effect of suing time efficacy. At the same time, it can show the self-government principle of the agents' meaning, corresponds to the effective items of civil law behaviors, and should have the bind...