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Whether Limitation Of Action Can Be Applied To Right Of Real Claim

Posted on:2008-02-22Degree:MasterType:Thesis
Country:ChinaCandidate:L H MaoFull Text:PDF
GTID:2166360242459462Subject:Law
Abstract/Summary:PDF Full Text Request
Right of real claim is an important constituent part of property law, but opinions on whether limitation of action can be applied to it are widely divided. Not only legislations from different countries are inconsistent on this problem, but also our present property law makes no provision for this. Therefore, the phenomenon of"same cases, different judgments"has arisen in law enforcement because of no explicit regulation. Exploring in law practice is significant, nevertheless, for establishing and perfecting the theory. As an independent claim, right of real claim can be used to ensure oblige to dominate successfully. Although it is derived from real right, its form of responsibility involves outward appearance of creditor's rights. So it is defective to simply conclude that limitation of action can or can't be applied to right of real claim.This paper consists of four parts. Through analyzing the nature of right of real claim, the first part illustrates that right of real claim is the embodiment of real right. As an independent right of claim, it has both character of real right and character of creditor's rights.The second part is the focus of this paper. In this part, the author has introduced several main academic viewpoints about weather limitation of action can be applied to right of real claim. Meanwhile, according to the author's own analysis and understanding, the author thinks that right of real claim is a major method for oblige to protect one's domination upon object completely and its effect is prior to creditor's rights. On the problem of weather limitation of action can be applied to right of real claim, this paper assents eclectic viewpoint and considers that limitation of action can not be applied to right of real claim under normal situation and it can be applied to right of real claim is the exception.In the third part, the author introduces the Continental Law System's legislation of the application of limitation of action to right of real claim. In the last part, the author puts forward to choose different tropism to apply the limitation of action in connection with the type of right of real claim by making a review of our law provisions on Ceneral principles of the Civil Law of the People's Republic of China and the Property Law of the People's Republic of China. The author advocates that limitation of action can not be applied to right of real claim except its application to repairing, reworking, replacing and recovering right of claim.
Keywords/Search Tags:right of real claim, limitation of action
PDF Full Text Request
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