A Study On The Problem Whether The Claim For Restitution Applies The Limitation

Over the years,there is a great controversy among our Chinese civil law scholars that whether the limitation of action is applicable in the right of claim for return property as well as how it to be applied.Relative theory take the nature of the right of claim for return property as a logical starting point and ultimately the formation of positive and negative theories well-matched in strength.In contrast,this paper based on the clarification of the nature of the right of claim for return property, taking the function of the limitation system as a research approach and taking the research method of comparative law as the supplement of the law system,to deduce the conclusion that the right of claim for return property have the character of applying the limitation of action. For the same object, the right of claim for return of property restricted by the limitation of action system and the ownership of object stipulated by the acquisitive prescription system, this two system run parallel and complement each other.Besides the preface,the text consists of five parts:In the first part,describing the conditions for the right of claim for return of property and the argument about its nature.Introducing the basic concepts of right of claim for real right and right of claim for return property briefly,clearing the defects in relative interpretation methods,then interpreting the function of the limitation as the direction of interpretation.The second part, analyzing the legislative motivation, applicable objects and legal consequences of the prescription systematically. The legislative motive of the prescription system is to protect the benefit of the obligor and the social public interest represented by the third. Acquisitive prescription applies to the right system of possession, while the applicable object of the limitation of action should bear the right of claim for return property besides the right of the obligatory claim. The legal consequence of the acquisition prescription is the doctrine of rights acquisition, and the legal consequence of the limitation of action is the doctrine of right of defense.The third part,to examine the relevant legislation in the perspective of comparative law and to analyze and comment on it. The German Civil Code and the "civil law" in Taiwan area of China built the system of the negative prescription with the claims as the model and provided that the right of claim for return property can apply the negative prescription. The reason of the French Civil Code did not admit that the right of claim for return property can apply the negative prescription was its absolute respect for private rights and of the national public power hyper alert and other reasons, and thus developed a very French local characteristic of the civil code. At the same time,the Civil Code of Japan also denied that the right of claim for return property does not apply the limitation.Unlike the French civil code,the reason why the Civil Code of Japan objected the claim for restitution applies the limitation was that the consequences of the limitation would eliminate the entity rights,in other words,it may let the owner loss their ownership.Due to the confliction and confusion of China's relevant norms of civil law as well as other reasons, it is hard for courts and arbitration organizations to find the proper anspruchsgrundlage and to gain the firm support of theory.To some extent, the judgment not only can't stop the disputes, but will make confusion worse.The fourth part,the elimination of doubt and the evidence of theory. Usucapio, bona fide acquisition system can not replace the system function of the claim for restitution for litigation system.Therefore,the future Chinese Civil Code should adopt the legislative mode that established the acquisition prescription system, meanwhile, stipulated that the right of claim for property shall apply the limitation of action. The expiration of the period of limitation of action shall have the function of giving the unauthorized possessors the right to a unbroken possession, using, and collecting the objects' profit.The fifth part,legislative suggestions and complete system. When the claim for restitution applies the limitation,there is no need to distinguish whether the possessors is goodwill or malicious in their mind; A third party should take the possession period which the unauthorized person had; The limitation period which the claim for resititution applies should be longer than the usucapion; The statute of limitations and obtain limitation system should be stipulated concurrently to protect property order; The period which the holders of the registration ask the unauthorized possessor to return the property should not apply the limitaton.