The Return Of The Original Claim Limitation Of Action

The right of claim for return of property is one of the most important type of the right of claim for real thing, whether the right of claim for return of property should apply to the rule of limitation of action, there are many different views in the academic world and the law of different countries is quite different. In China, the law of this problem is blank. In judicial practice, as the law is blank , then the same case appears different adjudgements. Based on the civil law countries (regions) of the legislation and a comparative analysis of academic controversy, this problem is studied seriously.In addition to the introduction and conclusion part, the full text is divided into four parts:The first part, the legislative status and the theory of Chinese limitation system, this part analysis the legislative status of our country's limitation system and has done a summary of scholars theories. There are three doctrines: negative theory, affirmative theory, distinction theory. In China, negative theory is more popular now.The second part, legislation and theory in civil law countries (regions).The part introduces legislation and theories of Germany, France, Italy, Japan, Taiwan specifically from the perspective of comparison.The third part, the theoretical thinking on the relevant theories, this part is the core content of the article. First of all, through analysis the view of affirmative theory, the view of affirmative theory criticismsing negative theory, as well as the way of affirmative theory solving the problem of "abnormal real right " which emerges after the right of claim for return of property apply to the rule of limitation of action, affirmative theory is unreasonable. Secondly, analysising form the purpose of the rule of limitation, the functions of the right of claim for return of property , historical background and the consequences that the right of claim for return of property apply to the rule of limitation of action, the negative theory is more reasonable. On the one hand, because of the rule of the ownership obtained by bona fide purchase and the rule of the acquisitive prescription in the area of real thing can solve the problem which appears wrong information of right for the third party when the right of claim for return of property doesn't apply to the rule of limitation of action, so this situation will not lead to the disorder of socio-economic order; on the other hand, the right of claim for return of property is very important for property rights holder, when it applies to the rule of limitation of action ,though the property rights holder have the real right, he cannot use. This state has contradictions with the basic theory of the real right.The fourth part, legislative proposals of the right of claim for return of property of the rule of limitation of action. Because the constitution and the legal effect of the rule of the acquisitive prescription and the rule of limitation of action are different, so when the real right applies to the acquisitive prescription, not only does the situation cannot bring the problem of right vacuum, but also can realize the purpose which the right of claim for return of property applying to the rule of limitation of action want to achieve. Our legislation should expressly state that the right of claim for return of property doesn't apply to the rule of limitation of action and establish the rule of the acquisitive prescription.