On The Eradication Of The Effect Of Prescription

The extinctive prescription system stems from praetor-law of ancient Rome. It's original value was to avoid the difficulty of producing evidence because of the suppression of evidence. Two thousand years ago, the system's value was unitary, but now it is plural. Most of the civilized states pay more attention to it. The legislative model of the effect resulted from extinctive prescription in continental family has three kinds: the extinction of right of action, the producing of right of defense and the extinction of substantive rights. The model of the effect resulted from extinctive prescription in the ancient Rome was extinction of right of action (extinction of "actio"). In ancient Rome, the "right of action"(actio) was aggregation of the substantive rights and the procedural rights, which had great difference in essence with contemporary right of action. " France Civil Law" (1804) complied with the ancient Rome's legislative model. At that time the right of action gradually separated from substantive right and partly became procedural right. The legislative model in many countries is the extinction of right of action because they are affected by " France Civil Law" .But the right of action in their law system is procedural and constitutional, which involves no substantive right. The spirit is much different though their model is the same in name. The model of right of defense originated from Windscheid's theory of right of claim. Windscheid's theory results in thorough decomposition of the " actio" . The right of action becomes one of the procedural rights. The theorists no longer understand the substantive rights from the angle of lawsuit. The change of thinking has following effect: as the substantive law system, the effect of extinctive prescription has transmitted from the right of action in procedural law to the right of claim in substantive law and othersubstantive rights. That time in Germany, the effect of extinctive prescription had two theories, which are the theory of powerful effect and the theory of weak effect. "Germany Civil Law " adopts the theory of weak effect, so its model is producing of right of defense. "Japan Civil Law " adopts the theory of powerful effect, its model is extinction of substantive rights. The factual effect of those three legislative models is almost the same, but they are utterly different if we analyse them from theory and assess them by the value of extinctive prescription system. In our country, the civil law is now being drafted, this article analyses the three models from the angle of theory and the value of extinctive prescription, and hopes to put forward some useful standpoints.This article is composed of three parts,33, 000 words in all.Part I: The value of extinctive prescription systemThis part put forward that original value of extinctive prescription system was to avoid the difficulty of producing evidence because of suppression of evidence in ancient Rome, and it maintain legal order or transaction security, promote execution of civil right or economic circulation, avoid the difficulty of producing evidence at the present day.Part II: The assessment of legislative model of the effect of extinctive prescriptionThis part analyses the three models from the angle of theory and the value of extinctive prescription.Part HI: The construction of our country' s effect of extinctive prescription systemThis part put forward a new legislative model, it is new producing of right of defense.