Research On The Positive Prescription

Positive prescription was produced from Twelve Tables Law in the ancient Rome law. The majority capitalist country has used this system in the legislation, but our country believe continuously positive prescription contradicts with the socialist system as a result of the Soviet Russian civil code's influence, so it was denied. After our country has carried out the socialist market economy system, It is necessary to establish the civil legal regime adapted to the socialist market economy. The pressing situation grows day by day, and It is imperative. Specially did after Country Legislature propose to formulate the Real Law, founding our countries' positive prescription became mutual recognition of the scholar. This article attempts to analyze positive prescription in theory, and provides the theoretical direction for our countries' future legislation and the judicial practice.Firstly the article inspected earnestly the positive prescription's origin and various countries' law stipulation from the positive prescription's historical development. Although our countries' laws do not have the positive prescription, it was manifested in Supreme Court's judicial interpretation. Secondly, this article analyzed and introduced the positive prescription's function, constitution document, the computation rule as well as the relations that it is with the negative prescription and the good intentions. Author thought positive prescription is an independent civil legal regime. Finally, the article carries on the following designs in order to stipulate the positive prescription for the future real right legislation stipulation. 1. The author thinks our country should adopt the separate pattern about the positive prescription's legislation pattern's choice. In the legislation the effectiveness and the negative prescription stipulated separately different position in the Code Civil, this will manifest positive prescription's individuality. 2. The positive prescription's constitution document of our country should include the holder must hold the subject matter by oneself, the peaceful occupation independently and holding blatantly; The holder must hold the subject matter thing of the other people; The holder has the good intentions and does not have the errors; Continue to hold; Continue to hold through the legal period. 3. Speaking of the positive prescription applicable scope the author thinks the limit circulation, the prohibition circulation and all the public things, because it cannot transact or transfer freely, cannot become the commodity, therefore they cannot adapt the positive prescription; Other property rights except the property, mainly including other real right and the creditor's rights and so on, they cannot obtain rights because of the effectiveness; The good intentional holder of the stolen goods cannot obtain the property rights. The applicable scope of our countries' positive prescription should include the property rights, the profit real right, Nature power of the guarantee real right, the business secret power, the company power of management symbol power; But the tradition intellectual property rights, the creditor's rights, the right of inheritance as well as the stockholder's rights cannot obtain the rights because of the prescription.