Study On The Application Of Limitation Of Action To The Claim For Return Of Unregistered Movable Property

Whether the limitation system can be applied to the right of restitution claim and how it can be applied has been a controversial issue in the theoretical circle of civil law.The limitation of action applies to the claim of creditor's rights,which has been generally accepted.Whether the claim of restored real rights derived from real rights can be protected by time goes by or not,the existing theories form a three-part stalemate pattern of "affirmative theory","negative theory" and "compromise theory".Article 196,paragraph 2,of the General Principles of Civil Law seems to settle the long-standing debate on whether the limitation of action applies to the right to restore property,but it is still unclear whether the right to restore property without registration can apply to the limitation of action.This article combs the relevant cases before and after the enactment of the General Principles of Civil Law,analyses the judicial path on the basis of peering into the current situation of judicial decisions,and clarifies the argument basis of the limitation system for the application of restored property claim,so as to prove the legitimacy of the application of the limitation system for the restored property claim of unregistered movable property.In terms of path selection,both the traditional dualistic overlap theory,dualistic parallel theory and successive application model,or the recently concerned Dutch bridging model,have systemic loopholes and are difficult to self-consistency.The application of limitation of action system alone has legal value and system advantages.As far as the effect of the limitation of action is concerned,"the theory of stopping conditions" is more appropriate than "the doctrine of occurrence of the right of defense".The first part : Judicial standpoint and academic divergence on the application of limitation system to restored property claim.By reviewing the judicial decisions on the limitation of application of the right to restore property before and after the promulgation of the General Principles of Civil Law,it is found that the majority of the judgements are "the right to restore property does not apply to the limitation of action",but most of them are not explained in detail.Some courts have not subdivided the object of restored property claim into movable property,real property or registration or unregistered subdivision,and all the courts have ruled that the limitation of action does not apply to the right of restored property claim;or they have confused the determination of the right of claim for creditor's rights and the right of claim for real rights.Whether the limitation of action is applicable to the right to claim restored property or not,the academic circles of our country generally present the situation of "affirmative doctrine","negative doctrine" and "compromise doctrine".Those who hold "affirmative theory" hold that the right to claim restored property does not apply to limitation of action,while those who hold "negative theory" hold the opposite view,while "compromise theory" treats the right to claim restored property differently according to whether it is registered or not,and the right to claim restored property without registration applies to limitation of action,whereas the opposite is not applicable.The second part: The validity of applying limitation system to the right of restitution of unregistered movable property.Negativists hold that: the right of real claim is absolute right;the "emptiness" of ownership caused by the application of limitation system to the right of restitution of real claim is extremely difficult;it is inconsistent with the legislative purpose;the application of limitation will protect malicious possession,which is a great evil;it is improper for the obligee to place "hope of revival" on the infringement of others;the limitation can not be applied to the continuous occurrence of real claim.However,whether from the perspective of the value of the limitation of action system,the optimum allocation of social resources,or from the perspective of the internal appropriateness of the legal system,the application of the limitation system to the right to restore property claims has both value legitimacy and institutional superiority.The third part: The choice of the path of applying the limitation system to the claim for restitution of unregistered movable property.There are "dualistic overlap theory","dualistic parallelism theory","successive application model" and "Dutch bridging model" for the application of limitation system in the unregistered movable property restitution claim.However,the above-mentioned model is difficult to integrate into the civil law system of our country and can be self-consistent,so the application of limitation of action alone can be used for the restitution claim.The death compensation or tort damages resulting from infringement on the right to life and body of others are not exempt from the application of limitation of action;the possession of rape and concealment does not go beyond the justification of depriving life,harming health and destroying reputation.Therefore,since the right to claim restored property is no more noble than the right of personality,it naturally does not have the "immunity" applicable to the limitation of action.The fourth part : The legal weight of limitation of action applies to the claim for restitution of unregistered movable property.In the application of limitation of action to the claim for restitution of unregistered movable property,the doctrine of the occurrence of the right of defense gives many problems to the right after the expiration of limitation of action.After investigating the general theories of the validity of limitation of action,such as "extinction of substantive right","occurrence of right of defense" and "extinction of right of action",it is found that the above-mentioned modes have something in common: the effect of limitation of action has two layers of "direct effect" and "indirect effect".The expiration of limitation makes the parties obtain the defense of limitation of action,and the occurrence of the right of defense is the completion of limitation of action.In the case of "direct effect",the obligor's exercise of defense can definitely bring about the effect of limitation of action,i.e.the influence on substantive rights to varying degrees,or the loss of the right to claim,or the loss of the right to sue,or the loss of substantive substantive rights,which is an indirect effect.The scientific investigation of indirect effect shows that the theory of "stop condition" can seamlessly dock with the prescription system of our country and also conform to the "morality" of the prescription system.The monism of general extinguishing prescription eliminates ownership through extinguishing prescription.At the same time,it makes the illegal possessor acquire ownership based on preemption.The chaotic situation of "possession and permanent separation of ownership" caused by the doctrine of the right of defense can be solved.