Research On The Relationship Between Claim System On Real Rights And Limitation Of Action

As one of the most important parts of property protection, right of real claim is an important constituent part of property law. But the differences about the relation between the right of real claim and limilation of action not only lie in legislations from different countries, but also in the theory.Therefore, the phenomenon of "same cases, different judgments"has arisen in law enforcement because of no explicit regulation. So it is very important to put forward the issue whether the limitation of action should apply to the right of real claim, by referring to foreign legislation, many scholars’theory, combined with China’s specific national conditions and legislative status.In this paper, research methods are system analysis、comparative analysis、 empirical analysis. Based on defining the nature and the type of the right of real claim, the statute of limitation of Action, by referring the advanced enactment of foreign legislation, combined with China’s national conditions from the judicial practice and legal value etc, to dialectically analysise the relationship between the limitation of Action and the right of real claim.This article mainly consists of three parts:Part one:Raise questions——Theory controversy on whether the limitation of action should apply to the right of real claim. The part puts forward the existing problems between claim system on real rights and the limitation of action. On the one hand,the part lists three theory. There are positive theory, negative theory, compromise theory, and respectively expounds the theory of representative reason; On the other hand, this part mainly examines the relationship’about foreign defining the legislation, and introduce the relevant legislation of "German Civil Code ","Swiss Civil Code","French Civil Code","Japanese Civil Code" and Taiwan.Part two:Analysis problems——Theoretical basis on whether the limitation of action should apply to the right of real claim. Firstly, the nature of the real right of claim is defined. By analysizing the four theory:the theory of the debt, theory on the utility of the real right, the theory of property rights asking for relief and exists in the independent claim, it is concluded that the right of real claim which is based on real property right is a independent claim. Secondly, the part defines the types of the real right of claim. There are different theory:three types theory, four types theory, five types theory and six types theory. The debate mainly focus on the claim of property confirmation, the claim of repristination, the claim of damage compensation. I think the three claim is not belong to the right of real claim.,which is made up of the claim for return of property, the claim for removing the impediment, claim for eliminating the danger. Again, the law value of the limitation of action is discussed, and its value of existence is built. Finally, The conclusion is that compromise theory should be used, which bases on the question about negative and compromise theory. In combination with the real right of claim types and procedural law of value for limitation of action, the conclusions of distinguish applicable are argued, which proves that compromise said is rational.Part three:Solve problems——Specific analysis on whether the limitation of action should apply to the right of real claim. The Part is the core content of this paper. First of all, making clear the four elements, namely the applicable object of the limitation of action, the social reality and the trading habits, fair value, order and justice value, the conflict and connection between limitation of action and other related systems; Secondly, by considering the four elements, and the nature of the real right of claim, the type and the value of limitation of action, the claim for return of property should be distinguished in applicable limitation of action, that’s to say, property is registered born on the return of the original claim limition should not be applied conclusions. On the contrary, property is not registered should be apply to the limitation of action. The claim for removing the impediment and claim for eliminating the danger should not be apply to the limitation of action,and explains the reason in detail. Finally, this article proposed that we should set up positive prescription as soon as possible to fill the gap, which comes from real right by the claim that is not applied the limitation of actions...