On The Limitation Of Action In China

The negative prescription period is an important content within the negative prescription system, it directly relate to the creditor's right that if can continue to be protect by laws. The legislation about the negative prescription period in our country, exists many imperfect places, against the original intention that the traditional civil law establishes the negative prescription system, also results in the laws disaccordance with the morals, decreases the existent value of this system. To this, needs to perfect the legislation, on the foundation of reverting the two kinds of value concern about the negative prescription system in the traditional civil law, drawing lessons from the legislation experience of the abroad and combining the material circumstances of our country, from the ideas about the value of the legislation, the length of the negative prescription period, the calculation of the negative prescription period and the result of the expiration of the negative prescription period.This text is divided into six parts totally.The first part: The ideas about the value of the legislation of the negative prescription period . The negative prescription system of the traditional civil law deeply permeates two kinds of value concern always, namely to seek for the benefit value and to respect the sacred private rights, also is to say, at the time of emphasizing the benefit value, also not forgetting to give tremendous concern and protections to the sacred private rights. But in our country on the ideas of the value of the legislation exists shortage, that is to emphasize the realization of the benefit value excessively and ignore the protection to the sacred private rights seriously, in the course of the realization of the benefit value again unilateral pursues the economic benefit and neglects the social benefit, over-emphasizes the efficiency and neglects the justice.This unilateral quest to the value, causing the irrationality on the legislation design of the negative prescription period, affecting the whole function of the negative prescription system. Wants to perfect the legislation design of the negative prescription period, first needs to make clear the ideas on the value of thelegislation , return to the two kinds of value concern in the traditional civil law.The second part: the period of the negative prescription. The period of the common negative prescription that our country provided, compared with international community is the most short, it already can't accommodate to the basic request of the market economy society, the main representation of its shortage at: going against the protection for the creditor's right; fostering the opportunism widely accepted; baffling the trustworthy society established; colliding the traditional moral concept of our country too much. Therefore, on the foundation of drawing lessons and consult the legislation experience form all countries, we should confirm the period of the common negative prescription that is not only advantageous to the creditor's right, but also advantageous to the social order, consistenting with the material circumstances of our country. Moreover, the period of the special negative prescription that our country provided, especially the one year's special negative prescription period, also exists the shortage that the term is too short and disadvantageous to the protection for the private rights, especially for the healthy and life rights.The third part: the way of beginning to count the negative prescription period.The law of our country provided that the negative prescription period is computed from the time when the creditor knows or should know his or hers rights have been violated. This provision has certain rationality, but under the condition that the creditor although knows the rights have been violated, but is not aware of the attacker, then the short negative prescription period is obviously not enough to protect the creditor's benefit. Wants to select a good way of counting the negative prescription period, still needs to consider both the length of the negative prescription period and the way of counting the negative prescription period, make them adapted and matched mutually.Under the condition that the common negative prescription period is short, we may draw lessons from the lawmaking example of Germany, providign the negative prescription period is computed from the time when the creditor knows orshould know his or hers rights have been violated and knows or should know the attacker; under the condition that the common negative prescription period is longer, we may draw lessons from the lawmaking example of most countries, providing the negative prescription period is computed from the time when the claim right may be exercised.The fourth part: the pause, the interruption and the extension of the negative prescription.The provisions of our country's are rougher to the legal reasons and the law results of the pause and the interruption of the negative prescription. It is necessary to enumerat the legal pause reasons detailedly, lead into the nonfulfillment of the negative prescription and take the claim as the legal opposite interruption reason of the negative prescription. The extension of the negative prescription, is a special system of our country, established mainly for protecting the Taiwanese compatriot's civil rights and for making up the shortage of the negative prescription period that its length is too short. The extension system of the negative prescription can be considered to cancel, after these contents such as the length of the negative prescription period, the way of beginning to count the negative prescription period, the pause and the interruption of the negative prescription, have already been perfected necessarily.The fifth part: the law results when the negative prescription period has been expired. In four kinds of lawmakings example about the effectiveness of the negative prescription, the entity right extermination doctrine, the lawsuit right extermination doctrine and the recovering right extermination doctrine, are all provided from the angle of the obligee, only the deraignment right occurrence doctrine is provided from the angle of the obligor. Among them, the recovering right extermination doctrine and the deraignment right occurrence doctrine, have not too much difference originally, but because of not forbidding the courts to actively cite the negative prescription in our country, causing the recovering right extermination doctrine that our country adopted, still exists certain blemish in apply process. To this, there are two ways to take it into perfect, one way is at the time of continuing and following to adopte therecovering right extermination doctrine, to explicitly provide that the courts can not actively cite the negative prescription; another way is to directly adopte the deraignment right occurrence doctrine. I think that adopting the deraignment right occurrence doctrine is more reasonable.The sixth part : the conclusion. Perfecting the provision of the negative prescription period, needs to clear the ideas about the value of the legislation, reverting the two kinds of value concern about the negative prescription system in the traditional civil law. On the concrete contents design, should increase the length of the negative prescription period; provide that the negative prescription period is computed from the time when the claim right may be exercised; provide that the legal reasons and the law results of the pause and the interruption of the negative prescription more definitely; consider cancelling the extension system of the negative prescription; adopt the deraignment right occurrence doctrine.