On The Eradication Of Limitation Applicable Range

Right should be observed, whether or how to perform the right should be determined by the obligee. However in the society, the performance of one1 right should not damage the benefit of the society, or should be restricted, which is demanded by the idea of society centre.Prescription extinctive is one of the rules which restrict the time of performance of right. Which rights should be restricted ? That concerns the scope of prescription extinctive.The article contains four parts:The first part mainly deals with the function and the scope. Firstly the author shows the concept and function. By analyzing and assessing the traditional concept of limitation of time used by our country, the author insists using the name of prescription extinctive, and abandoning the name of limitation of time. By going over the development, the author researches the different functions which are showed in different histories, and affirms the objection is to maintain the existing order, to protect the trade safety, to win the efficiency. The author insists it is significant to research the scope of prescription extinctive, which helps to regulate the period, to build the system of prescription, to devise the mode of legislation, and to direct the practice.The second part is the general research of the scope of prescription extinctive. The author discusses it by the means of comparison and theory. By contrasting the concerned regulation between the system of civil law and the system of common law, the author insists the scope of prescription extinctive should be right of claim, not right of action nor right of entity. By analyzing the value of law, the author insists the scope of prescription extinctive should be right of claim, which balances the personal interest and the social interest, shows the fair and justice, and maintains the order, efficiency and safety. By analyzing the system of right, the author thinks the scope of prescription extinctive is not right of disposition, right of formation right of contradiction , right of entity, but right of claim.The third part is the concrete research of the scope of prescription extinctive. By the outcome of the second part, we can know the scope of prescription extinctive is right of claim, but whether all rights of claim are applicable to prescription extinctive? That is the purpose of the third part. By the means of damages and remedies, the author classifies right of claim as remedy claims and saving claims. Remedy claims is applicable to prescription extinctive, but saving claims is not by principle。 However, the application of right of return is determined by register.The forth part is the discussion and suggestion of our legislation concerned. In the part, by analyzing separately the general rules of civil law, civil code draft suggested by law commission, by academy of social science, by renmin university, the author thinks all the legislations have defects, and puts forward some suggestions concerned.