On Legislative Purpose Of The Limitation

In the course of constructing our civil law, prescription is one of the basic questions which have been more disputed by many scholars in law research. The reasons are mostly that "the legislative purposes of prescription" is not solved well. By now, the research on the question in the theoretical research is still very deficient: for example, the viewpoints about it are numerous and complicated, and not been classified; no one has lucubrated it systemically; the concept is not explicit and the logic system is mixed up and so on. So, we must give comprehensive researchs on the question from different point of views of the history, of the concept, of the value. By research, we may solve all kinds of controversy about it , and provide academic foundation for settling other questions , and finally offer legal direction for constructing the prescription in the civil law.The are five parts in this paper:In the first part, we firstly classified and concluded all academic controversy about the legislative purposes of prescription. We think: in general, the academic controversy includes two aspects: the one is about the connection of the acquisitive prescription and the extinctive prescription in the legislative purposes, the other is about the contents of the legislative purposes of prescription. In the two controversies, there are many different opinions. The forming of these opinions have many reasons: realistic reasons, historical reasons, subjective reasons, objective reasons and so on.In the second parts, we respectively review the connection and content of "the legislative purposes of prescription" in Roman law, in Germanic law and in Gallo law along the development of history, and introduce simply the inheriting of the prescription in our country. By analysis, we conclude: 1, the prescription is the result of the history, so the legislative purposes of prescription change with history condition; 2, the legislative purposes of prescription is decided by the value notion of the legislators. So when the value notion of the legislators is different in different periods, the legislative purposes of prescription is also different; 3, the legislative purposes of prescription is also affected by legislative technique and level. In all, we must studythe legislative purposes of prescription in given history conditions .The third part is "analyze nomologically the legislative purposes of prescription ". "the legislative purposes" is a pivotal word so we must explain well and truly it. "the legislative purposes" not only has profound meaning .but also has broad extension. In its extension, we must distinguish it from function, legislation reason, value tendency. According as different standards, we also classified it: the direct legislative purposes and the ultimate legislative purposes; the important legislative purposes and the minor legislative purposes and so on. By analysis, we afford an academic model for constructing the legislative purposes of prescription. And to establish the legislative purposes of prescription, we propose two standards: the one is the value notion of the legislator, the other is the character of the prescription.In the fourth paper, we conclude the viewpoints about the legislative purposes of prescription basing on the above analysis. We think that the legislative purposes of the prescription is a more complex system, in which including the direct legislative purposes and the ultimate legislative purposes, also including the important legislative purposes the minor legislative purposes. In the direct legislative purposes, the acquisitive prescription is protecting current order, the extinctive prescription is urging rightful owners to practise their rights actively. In the ultimate legislative purposes, the acquisitive prescription is protecting trade security and making wealth abundantly utilized, the extinctive prescription is protecting trade security and increasing trade efficiency. In all. the two prescription have different legislative purposes.The fifth part is "designing the prescription in our country", In this part, we apply the above academic conclusion about "the legislative purposes of prescription" to the practicing, and give our viewpoints about the academic controversy basing on the above academic conclusion.