Acquisitive Prescription System Research

Acquisitive prescription is an important legal system to set up and stabilize circulating order of property. Originating from Rome law, it has been adopted by most contemporary countries, no matter in civil law countries or common law system countries. China has not been established this system for the influence of the former Soviet Union's civil law. The academia has already reached common understanding for its necessity under the market economy condition. But it is still one problem that remains to solve. This article is to seek to the construction of acquisitive prescription according with the national conditions of China. This article is divided into for parts.The part Ⅰ is about the significance and value of acquisitive prescription. It analyzes the historical development and current situation, and considers it is necessary to make deep understanding of the essential conception of prescription and the essence of acquisitive prescription. The article deems acquisitive prescription is an excepted regulation of title or a kind of restriction toward absolutism of proprietary. It sacrifices private interests for public interests, and that is to say, it is a kind of value choice among individual's fair and social whole order. Therefore, it is for reminding obligees to exercise their title actively from essence and maintain interests of obliges through negative appraisal to deny the title. It maintains trading safety and social whole order coming from long-forming factual state. On this basis, the article analyses its value and function.Then it points out that there has extensive applicative space in our country. The good faith acquisition emphasizes subjective good will and usually only limited to non-gratuitous act. The obligees still hold the title after expiration of prescription of action while they cannot take the property actually, which will result in disconnect of title in fact. In addition, it is not enough to only depend on public trust to ensure real property order because of the imperfection and formalist censorship ofresignation system. All those matters need to introduce acquisitive prescription to make up systematic space.The part II is about the object of acquisitive prescription. Movable property and real estate property always act its main object, but it is restricted through civil legislation and judicial practice by various countries. This article considers res extra commercio, res communes omnium and res publicae as restricted object in China. However, such state property as revenue bond should be acquired through prescription. Only by this could it accord with tropism of equal value of civil law and urge obliges to exercise their title.The article points out it should widen scope of application of acquisitive prescription on the basis of the observance of resignation system. Namely the unregistered real estate should be explained on the broad sense. Only by regarding occupying as the key element to the ranges of other property beyond ownership in accordance with its nature, and possessing continuously could it apply acquisitive prescription possibly.The part III is about the elementary requirements of acquisitive possession and duration. The article figures out possession should not take the good will as elementary requirement, and it must be possessed in reality. On its duration, the article announces it should differ from movable property and real estate as well as subjective factor. The starting-point of prescription is from the moment when occupant possesses the property peacefully, openly and exclusively. The reasons of suspension and interruption of prescription should be harmonious to avoid the disharmony of the legal provisions.The part IV is about the legal effect of acquisitive prescription. The expiration of duration will bring corresponding legal effect, and namely occupant of movable property obtains property instantly, while occupant of the real estate needs to apply for title resignation to be owner. The article considers the judge must not invoke prescriptive interest by authority and the party must not discard prescriptive interest in advance.In addition, it should pay more attention to harmonize the relation between acquisitive possession of real estate and resignation system. At the same time, taking trading order and maintenance of proprietorship into account, it should seek a kind of balance between owner and possessor in respect of how to provide the duration of acquisitive possession and restitution. That thought is just what acquisitive possession seeks to.