Observing And Designing On Legislation Of The Acquisitive Prescription

The acquisitive prescription is an important content within nowinternational community civil law system; it began from the ancient Romanlaw at the earliest stage. Currently, most of the countries in the world civil lawruled the acquisitive prescription system; it occupies in civil law norm theimportant position and plays an important role. In Chinese history, acquisitive prescription really becoming law systemand took into action began from 1929 to 1931.After the founding of the NewChina in 1949, the Complete Literatures On Six Laws were abrogated, puttingan end to acquisitive system. After 1949, our state legislation on civil law on acquisitive prescriptionheld negative attitude. Till today, debate on whether acquisitive prescriptionshould be established still exists in the academic circle of our country. But theview that approves it occupies the main current. I think that the civil andcommercial law system is imperfect and it limits economic development to ahigh degree. Particularly, under the circumstance of joining the WTO, it'snecessary to establish acquisitive prescription system and comply it with thelaws in the world and make it perfect, so that we can adjust to the socialismmarket economic development of our country and speed it up, perfecting thesocialism legal system in our country. As regard to the requisites of the acquisitive prescription, there are twolegislative models. The first takes bona fide definitely. The second takes itnegatively. I think, firstly, the distinction between bona fide and knowingdoesn't affect the aim on the acquisitive prescription system establishing.Secondly, in view of judicial practice, bona fide also shows many problems.Generally, proof for bona fide comes to presumption. And the practice makes 41bona fide become formalistic to a large extent. Thirdly, bona fide is only therequirement of the action at beginning, but the basic of acquisitive prescriptionis the certificate of right instead of the bona fide of the person who occupies it.I think that it is not necessary to take bona fide as requisite in legislation of ourcountry. There are two kinds of legislative models on whether taking non－registration as the requisite for real estate. One is the affirmative doctrine;another model is negative doctrine. In our country, the drafts of the right inrem drafted by scholars adopt the affirmative doctrine, and they believe thatthe acquisitive prescription on real estate is being limited by thenon-registration. The writer thinks that the end of the acquisitive prescriptionlies in stabilizing the social order and makes the fact to be priority to right.Objectively there are many kinds of the situations on the former. First, apossession person is a real right person, but the registered person on theregistration book is the one without right. Under the circumstances, the realright person can correct it according to the right of claim. Secondly, both theman who occupies the real estate and the registered person on the registrationbook is the ones without right. Third, the occupying man is a man withoutrights, but the register, the person in register owns real rights. When the manwho own real rights doesn't carry out the rights, the using and possessing theother man 'real estate has the situation where the fact and right does notbelong to the same one. In our country, the real estate registers system is notsound still. Not only does real estate exist large quantity not being registeredreal estate, but also the registered registers of real estates have many problems.Since 1986, the house and land should be registered respectively, and everysection of government makes its certificate by itself, and the standard ofstatistics is inconformity. So to find some mistakes is unavoidable. In our lawsystem on the changed right in rem register effective opinion is adopted, but it 42doesn't su...