Limitation The Defense Of Limitations

The first part of thesis begins with a common case, the main problem which the preface is going to resolve is, Is there any necessary to restrict demurrable right of prescription? And how to restrict demurrable right of prescription?The second part of thesis analyzes the restricting necessary of demurrable right of prescription from the perspective of value conflict of the prescription system. The prescription system is the result of value conflict of law, as for it first choose order and efficiency, there must be some conflicts with other values, such as fair. This tells us to give a consideration to the neglected values because of accepting the system, not only in legislation, but also in judicature.The third part of thesis analyzed the restricting necessary of demurrable right of prescription as a right from the perspective of prescription counterargument essential peculiarity. Any right can be used improperly and because this right is so special, we should be more careful when we use it in the process of judicature.The forth part of thesis pointed out all kinds of social abuses from real perspective, that if you use the demurrable right of prescription improperly, especially when it is used by evil intentions, it will aggravate the crisis of social credit, and it will make unnecessary waste of judicature. Therefore, in the harmonious constructing of society days, the restricting using of prescription counterargument improperly is very meaningful.The fifth and the sixth parts of thesis lead into the principle of good faith and the principle to prohibit the abuse of rights, and research on how to restrict the prescription counterargument.The thesis advanced that as a right of the accused, prescription can only be advanced by the accused. After the accused advanced the prescription counterargument, even though there isn't any suspend, discontinue, or extend, you can't dismiss all the claims of the plaintiff.Beside this , we have to differentiate the evil prescription counterarguments and the good prescription counterarguments, based on the principle of good faith and the principle to prohibit the abuse of rights to make a different judgment. If the defense of the accused is evil (violating the principle of good faith), we should dismiss the defense of the accused, and support the claims the plaintiff.Even though there isn't any negative defense of the accused, under the clear fact situation and conclusive evidence, if the judgment is to dismiss the claims of the plaintiff and this would violate the social fair principle obviously, the judge can use the discretionary power, support or partly support the claims of the plaintiff.There is no doubt that it is a challenge to both intelligent and moral of the judge. However, if we can use the discretionary power properly, it will make great progress of constructing a harmonious society.