The Limitation Of Action Should Not Apply To The Right Of Real Claim

As one of the most important parts of the real right law, the system of right of the real claim is a general and independent institution in civil law of the continental legal system which is related to the protection ways of real right. Throughout the history of the development of real right law, the research on the right of real claim is always relatively weak, especially on the issue whether the limitation of action should apply to the right of real claim. The right of real claim includes the right of claim for the return of the original, the right of claim for removal of obstacles and the elimination of the dangers, except of the rights of real right confirmation claim, restoration of original condition and occupy protection claim. The right of real claim is a unattached quasi-debt claims, because it have relative character but doesn't have absolute character. The system of limitation of action can divide to limitation of action in general and limitation of action in particular, can achieve the efficiency value, fair value and order value of law. Positive theory, negative theory and compromise theory are doctrines about whether the limitation of action should apply to the right of real claim. Whether the imitation of action should apply to the right of real claim lies within four aspects, namely, the genre of the right, the realization of legal value, the social foundation of the system, the collision and connection between limitation of action and other related systems. First of all, the limitation of action shouldn't apply to the right of real claim consider the following: making ownership of real right clear, curb the infringing acts, more in line with our country's social infrastructure and conducive to the realization of legal value in the form. According to the genres of the right of real claim and criterion of the limitation of action application, the limitation of action apply to the right of claim for the return of the original can result in excessive burden on real right owner, cause right vacuum, lead to an unfair tax burden. The principle of justice will be violated and the starting point is hard to confirm if the limitation of action apply to the right of claim for removal of the obstacles and the elimination of the dangers. It should be explicitly stipulated in the current Real Right Law that the limitation of action should not apply to the right of real claim. China should build positive prescription in order to fill up the restrictions vacancies when the limitation of action shouldn't apply to the right of real claim.