The Nature Of Claim Of Real Right And The Application Of Its Limitation Of Action

Since the drafting of the Real Right Law of PRC, the Continuous discussions are concerned on the issues of whether the system of claim of real right should be regulated in the text, or what is the nature of claim of real right and whether the system of lawsuit time limit be applied to the system of claim of real right, Which has caused great disputes in the field of laws And since the promulgation of the Real Right Law , the "blind spots" often occurred in the judicial practice because the law does not clearly specify these issues related. Thus, it is necessary for us to have the uniform understanding on them, and using it to guide the future judicial practice. The author in this essay attempts to do some discussions on these issues.This essay is divided into five parts, with a total number of over 33,000 words.Partâ… : The necessity of establishing the system of claim of real right in china. Through a comparative analysis of both positive and negative views on whether need or not to regulate the system of claim of real right, we found that it were not only better to protect people's real right under the system of claim of real right in china, but also make the rights system in the Civil Code more clearly.Partâ…¡: Differentiation between "claim of real right" and "Petition Right on Property". In those reviews on claim of real right, some may call it claim of real right, some may call it Petition Right on Property, and another may even equal the system of claim of real right with Petition Right on Property . In this paper, the author analyzed the causes of those related conceptions in Japan and the region of Taiwan, and put forward the view on the basis of awareness of mainland scholars' recognition that: "claim of real right" could not be equaled with "Petition Right on Property" because of the characteristics of "claim of real right" and its close relationship with the system of real right. The author proposed that to use the name of "claim of real right" will be suitable .Partâ…¢: An analysis of the nature of real righto This article holds the view that: we should explore the nature of the system of claim of real right and consider whether lawsuit time limit should be applied to the system under the whole system of claim of real right ,while not simply discussing the system of claim of real right on its own . For this reason we must recognize the nature of real right. Through the comparative analysis of definitions and characteristics of "real rights" as well as comparative analysis of the German scholars and the Chinese mainland scholars' study on the nature of the real right, the author in this paper concluded that" the essence of real rights is the right of control", and in order to be more accurately, he made a brief analysis on how to understand the concept of "dominance".Partâ…£: The exploration of the nature of claim of real right. The issue has been a focus of arguments. In this paper, the author collected several representative views on this issue, and analyzed those inadequacies of the views . The author believed that these representative views highlight the inadequacy research methods of China's real right Law. Through the introduction of new perspectives on scholars' research on real right, and in light of China's current social, political, economic and other basic conditions, the author recommended that we should define the nature of claim of real right as the real right. This will favor the protection of real rights, and will accord with the characteristics of the system of real right.Partâ…¤: The issue on whether limitation of action be applied to claim of real righto There are three theories, which are positive theory, negative theory, and compromise theory on whether limitation of action be applied to claim of real right. By analyzing the causes of these three theories, especially the relevant regulations of Germany and the Taiwan region, the author confirmed some of these positive factors, but believed that there are insufficiencies existed. This article holds the view that the application of the system of limitation of action will inevitably be conflicted with the nature and the system of real right, including the view that limitation of action be applied to return protoplast right of applicant is not only illogical but also not in line with the social morality. So the author in the paper claims for limitation of action should not be applied to the system of claim of real right.