On Our Country For The Construction Of The Prescription System,

Acquisitive prescription system is the law that the non-rightful owner continues to possess others' property openly and peacefully with the excuse of practicing proprietary right and other property right, and prescribed time, he eventually gains such proprietary right and other property rights. Acquisitive prescription, the ancient law system, can be traced back to the Law of Twelve Tables in former Roma period, gradually adopted by many companies in the world, which has become an important content of civil law real right system. Nowadays, the law of China only regulated the extinctive prescription but without any certain regulations on the acquisitive prescription.This paper analyzes its meaning, history development, and constituent elements, function scope, establish causes and moderation with other related systems by making use of historic and comparative methods. Then, the author makes a whole design for our acquisitive prescription by comparison for foreign legal provisions, and asks for advices from predecessor and scholars. The thesis divided into three parts:The first part discusses the necessity of acquisitive prescription in our country. In one hand, building of our socialist market economy and development of commodity economy are the social basis of acquisitive prescription, then analyzes the consistency between the acquisitive prescription and the modern civil law value orientation, points out that the acquisitive prescription system is the embodiment of rational thought of the people to the justice and efficiency. The other hand is the functions of acquisitive prescription, the author thought that the establishment is good at keeping social stability and forbid endless separation between possession right and proprietary right or other real right, stabilizing the civil affairs exchange relationship, promoting the effective utilization of subjects and overcoming the difficulties for the party to quote and the court to investigate. The second part is the design of acquisitive prescription in our country. This part is the core of the article. Firstly analyzes two legal system of the acquisitive prescription in today's world, and points out that China's acquisitive prescription shall be regulated in the general rules of law of property, the author contrastively analyzes the acquisitive prescription system and other systems, points out that the establishment of the registered system, extinctive prescription system, and goodwill obtain system can not replace the acquisitive prescription system. Second is the constitutive requirement. Combining the draft of jury in rem written by our experts and the mature legislature experiences in modern countries, the author analyzes constituent elements of our acquisitive prescription: possession and period. For its contents, the paper mainly explains the concept, good faith and the discontinuance and suspension of limitation. Third is about the lawful effect of our acquisitive prescription, emphasis that legal force of acquisitive prescription can retroact and the judge can not invoke the acquisitive prescription directly unless the parties advocate their rights.The third part is mainly about the scope of application on the system of the acquisitive prescription, thought that the acquisitive prescription system shall regulate the acquisitive prescription of chattels ownership, real property ownership and property right beyond ownerships, and analyzes if the acquisitive prescription could apply to the state-owned property.