Acquisitive Prescription System Research

The prescription system means the certain legal effect happens after a certain continuous period based on certain facts. Acquisition prescription which conies from the Roman Law, constructs the old prescription system together with prescription of action. Our civil law succeeds the continental legal system, but abandons acquisition prescription. Since 1980, Acquisition prescription is an issuing topic in our civil law. The civil law is the outcome of the highly development of commodity economy. Since our country gradually establishes socialist market economy system in 1990, it is necessary of establishing the mature civil and commercial law system to meet our socialist market economy. Therefore, most of civil experts acknowledge acquisition prescription from negativism, and they, such as Huixing Liang and Liming Wang, set up the acquisition prescription in the daft of jur in rem. H4owever they still have some different opinions about the system constitution and usage scopes. So it is realistic meaning to research acquisition prescription for perfecting our property system. The paper analyzes its history, social basis, constitution and moderation with other related systems by making use of historic and comparative methods. And then, the author makes a whole design for our acquisition prescription by the comparison of foreign legal provisions.The thesis is divided into five parts.The first part is the history development of acquisition prescription. The author probes into the economic factor of the system through studying its origin in Roman Law and its succession and development in the other counties. The author simply generalizes two legal models of the prescription system in continental legal system. In addition, the author analyses legal vacancy of acquisition prescription in China and our legal situation.The second part is the necessity of acquisition prescription in our county. In one hand, building of our socialist market economy and development of commodity economy are the social basis of acquisition prescription. In the other hand, it is necessary of perfecting our property system, realizing the union of procedural andentity justice, balancing social and individual benefits, maintaining judicatory dignity and order.The third part is constituent elements and lawful effect of our acquisition prescription. This part is the core of the article. The author points out requisite elements of acquisition prescription, after analyzing legal origin and logic system in kinds of country's legislation. Moreover, the design of acquisition prescription aims to keep trade safe and solve contradiction. Combining the daft of jur in rem written by our experts and the mature legislative experiences in modern countries, the author analysis constituent elements of our acquisition prescription: possession and period. For its contents, the paper mainly explains the concept, good faith and the discontinuance and suspension of the limitation. As its legal effects, the author describes the change of the real right in china by comparing legislation in German with in France.The fourth part is the function scopes of acquisition prescription, meaning its system spaces in china. As acquisition method of property right, acquisition prescription firstly applies to ownership, including personal estate and real estate. It also applies to other property right: base right of use, right of farmland use, right of neighboring use, real right of pledge etc. Meanwhile, the exception of acquisition prescription is also mentioned.The fifth part is the moderation between acquisition prescription and other relative systems. To reality its value, acquisition prescription should be considered moderation and union with other systems. The part compares prescription of actions, bona fide prescription, registration of real estate, possession with acquisition prescription. In the end, the author confirms the position and value of acquisition prescription in our legislation of real right.