On Claim Of The Effect Of The Debts From The Expiry Of Limitation Of Action

The paper is about the effect of the debts from the expiry of limitation of action.The effect of the completion of the Limitation of Actions is the core and the theoretical basis of the effectiveness of the debts. So what doctrines are about the effectiveness of the completion of the Limitation of Actions? Which kind of Legislation should be used? How is the effect of the debt in the case of this legislation? This is the problem that should be solved by the civil legislation of a country. However, China's civil law on these issues is not only scattered and incomplete, but also has many anomalies. This paper is starting from the three major legislation of the effect of prescription of litigation, on which the author respectively studied in system and legislation, and obtained what our legislation should be like.The paper can be divided into three parts, here is the gist: The first part:the theory of the completion of limitation of action and the legislation inspection.According to "General Surveys", the effect of negative prescription is composed of three doctrines: extinction of subjective right, extinction of claims and occurrence of right to counterargument.The extinction of subjective right comes from the German scholar Windscneid, who thinks the effects of the completion of the limitation of action lies in the eradiation of civil rights, creditors have no rights to accept the fulfillment of obligators, otherwise it is constituted unjust enrichment, the obligators may request return. The civil law in Japan applied this theory, which may caused the tense relationship between the legal and the moral, and the countries that applied this kind of theory in legislation and practice have something disharmony, so it is not worth promoting.Extinction of claims is put forward by the German scholar Savigny, which means when the limitation period is expiated, the creditor rights to claim vanish, but the substantive rights still exist. The court request of the claims that can not be enforced,but which does not automatically preclude the obligator to fulfill their obligations. The civil law in France adopted this theory, which is not only contradictory with the appeal system, and contrary to the constitutionlization of claims and the system of limitation of action invoked , thus which is also not worth promoting. As a special "extinction of claims", the eradication of the successful claim rights has also many unreasonable problems.Occurrence of right to counterargument adopt a German scholar Ortmann, who advocated that the completion of the effect of limitation of action, substantive rights, the rights to claim, and even the right to request can not be eliminated, but obligators gain the rights to refuse to fulfill their obligations. They can either fulfill or choose to voluntarily give up the right to perform their obligations. Germany is the representative of such legislation, which can also ease the tension between the moral and legal, conform to the purpose of the system of limitations, embody the autonomous spirit of the private law, and meet actual needs of the civil justice reform.The second part: the effectiveness of the debts from the expiry of limitation of action under the doctrine of Occurrence of right to counterargument.From the above part we can see that Occurrence of right to counterargument clearly and implicitly expounds the situation between the creditor and the debtors after the finished limitation period, which is the most consistent with the purpose of the spirit of civil litigation and the establishment of the aging system, thereby overcome the shortcomings of other theories. This part is in the premise of this theory, on what kinds of the general effectiveness and the rights of the effectiveness of the debts from the expiry of limitation of action are.According to Occurrence of right to counterargument , the general effects of the debts of the expiry on the limitation of action are: no enforcement power; not to request the return after voluntary compliance with the debtor's obligations; judges may not take the initiative to invoke the limitation of actions system ; the claims recognized by the debtor with the enforcement ; if claims before the completion of the limitation of actions is appropriate for the offset, even if the time for suit expired, creditors can still have the right to offset.Limitation of Action from the expiration of the rights' effects on the sub rights are: the completion of major limitations claims, generally the sub rights must have been expiated. But is it the case for the security interests? Mostly the Civil legislation provides when the major claims complete, security interests can still take on the security of compensation. The drawbacks of the provision are that the people who fulfill the obligation, that is the secured creditor, will rise from the second level to the first as an assumed debtor, and the real debtor does not need to assume responsibility. By weighing the pros and cons, we can draw the conclusion that security interests have no difference from the other rights, i.e. the time for suit expired, the secured have the access to the right to defense, thus have the right to refuse to perform security duties. The third part: the inspection on the effect of the debts from the expiry of limitation of action in China.China's provision on the effectiveness of the debts from the expiry of limitation of action is mainly spread in the "General Principles of Civil Law" and a number of judicial interpretations. It is generally believed that China is in favor of the elimination of the right of the successful claims, and the court can take the initiative to apply it, which are two areas where improvement is needed. China's law also provides that, after the completion of the Limitation of Actions, if the debtor is voluntarily compliance with the debt, he can not request the return; generally the sub rights of the prescription of litigation expired as the major rights finished; Mortgages should be exercised during the period of limitations, otherwise, the courts will not protect it, etc. which should be affirmed.In addition, it also provides that the debt after the completion of the limitation of action is recognized as protected by the law when there is a seal or signature. As to the debt losing the enforcement after the completion of the limitation of action, in recognition of creditors, it is all right to fully implement, but it is not proper that the debts only with the debtor's signature or seal on the reminders is acknowledged. Because a debtor has never denied their own debts, it was only due to their access to the right to defend so that he has the right to reject perform, and the signature or seal does not show that the debtor has given up the right to a defense, only when we have a clear expression of abandoning the defense right, can it constitute "acknowledgement",otherwise, it is too harsh for the debtor.What is gratifying is that we have seen active exploration in the field of the civil legislation in our country. The development of "Civil Code (draft)" and the suggestions from some scholar show that China has been actively improved the existing legislation inadequacy.In order to conform to the trend of China's civil justice reforms ,our country should adopt the occurrence of right to counterargument; Clearly defined that the parties can decide whether to exercise the right to defense, the court shall not take the initiative to review the limitation of actions; and after the obligators voluntarily implement the debt of the completion of limitations, they have no rights to ask for the return, the same to the sponsor and security interests people; The debt of the limitation of action once acknowledged by the debtor has the enforcement, but here the recognition which can be explicit or implicit needs to have a clear willingness to carry it out; After the expiry of the limitation of action, obligators of the sub rights, attached to the major rights gain the right of defense, have the right to refuse to perform; if prior to the completion of the limitation of action the debts have been suitable for offset, when the limitations expiate, creditors can still be offset.