On Property Rights Claims And The Limitation Of Actions

While the theory of right of the real claim increasingly sophisticated, scholars have controversies in many aspects of the specific content, and provisions are different in different counries. For example, the Civil Law of Japan does not provide for right of real claim, but legal precedents and theorists generally admit the existence of right of the real claim. The Civil Law of Taiwan and Germany provide for three types of right of the real claim, which based on ownership at the chapter of ownership, and provide for the right in rem except the ownership applied for the chapter of ownership, in the chapter of over the property of another. The difference is that, right of the real claim is one way to protect the right in rem, but as the empowerment or effectiveness of right in rem in Taiwan. The Civil Law of our country does not provide for the system of right of the real claim, particularly the problem of right of the real claim applied for extinctive prescription or not, what brought about by the theoretical disputes and the confusion in the law applicable. Tt is very important to provide for the system of right of the real claim, particularly the problem of right of the real claim applied for extinctive prescription or not.This article holds that it is necessary to provide for the system of right of the real claim completely in our Civil Law, including its conception, and its nature, and its types, especially for the problem of it applied for extinctive prescription or not:First, for the scientific of legal term, legislation in future should be selected "property protection" as the name of section, but should also clear the concept of "right of the real claim". These are two different concepts; the former includes the latter and right of the obligatory claim.Second, right of the real claim includes only three types, return claiming right, harm-preventing claiming right, and harm-excluding claiming right, not includes the recognition rights, restitution, damages and other claiming right. Recognition rights is the precondition to execute right of the real claim, as a right on procedural law rather than on the substantive law; damages and restitution are obligatory claims, between which have a very close relationship. Third, right of the real claim should be a right of claim which independent in obligatory claim and right in rem. Although linked to right in rem, right of the real claim will be very different to right in rem and its affection when right in rem suffers from some damages or risk of damages, such as relativity and claiming. In addition, right of the real claim aimed at the successful dominant status of right in rem,which i different form the direct disposal aim of right in rem. So whether it is from the validity of rights or the purpose of rights, right of the real claim should not be simply the same as right in rem; Right of the real claim also different from obligatory claim. It is not directed against any personal property, and its implementation has nothing to do with the debtor's ability to pay or general creditors, what obligatory claim dose. So right of the real claim can not be fully applicable to the general rule of Claims Act.Fourth, right of the real claim should apply for extinctive prescription, and should form its three types separately. This question closely contacts with the conception of right of the real claim and the object of extinctive prescription. In Japan, right of the real claim dose not applies for extinctive prescription, as a role of right in rem; In Germany, the object of extinctive prescription is right of claim. This concept is a little more general, easily leads to improper limitation of the expansion of the object of extinctive prescription .And there is no common understanding on the question of right of the real claim applied for extinctive prescription or not, easily leads to the situation of same fact applying for different legal arms.Therefore,it is must to clear its relationship on 1 aw .As the sane as obligatory claim, right of the real claim should be applied for the system of extinctive prescription, which not contrary to the legislative purpose of s extinctive prescription , as well as the system of values. If such a right dose not exercise for a long time, not only lead to non-existence of its purpose, but also no function to the security of transactions. So it should be made clear that right of the real claim apply for extinctive prescription on law. However, the three types of right of the real claim are different obviously; it is nessery to inspect them separately. Harm-preventing claiming right and harm-excluding claiming right do not apply for extinctive prescription, but return claiming right dose, and needs a more reasonable limitation period. Recommendations for future legislation is that adopted the practice which established in Taiwan, setting the time period of 15 years for return claiming right. And registered the right based on real estate in the exclusion from the scope of the object of extinctive prescription.