Study On The Statute Of Limitations Of The Claim Of Returning Property

"People's Republic of China General Principles of Civil Law" Article 188 stipulates that " the limitation of action during the request to the court for protection of civil rights for three years." The theoretical and practical circles have reached an agreement on this,that is,the object of the limitation of action is the right to request.Paragraph 2 of Article 196 stipulates that the right of the right holder of the real property right and the registered movable product right to request the return of the property does not apply to the limitation of action.Based on the negative interpretation,it seems that the claim that the right holder of the unregistered movable property right to request the return of property should apply the limitation of action.However,after the promulgation of the "General Principles of Civil Law",the Supreme People's Court and the National People's Congress Legal Work Committee and other substantive departments and different scholars have different cognitions on whether the right to request the return of the movable property owners to return the claim should be applicable.Judicial application and even teaching cause confusion.Therefore,this article attempts to analyze this issue.In addition to the introduction,the text consists of four parts.The first part,the author raises the question whether the limitation of action should be applied to the restored property claim of the unregistered movable property holder.On the "General Principles of Civil Law" Article 196,paragraph 2,there are not only different legislative and judicial interpretations,but also different judicial decisions.The explanatory text compiled by the Law and Industry Committee of the National People's Congress holds that the limitation of action should be applied to the restored property claim of unregistered movable property rights,while the interpretation text compiled by the Supreme People's Court holds that the restored property claim of unregistered movable property rights should not be applied to the limitation of action.Judicial practice has opposite conclusions on whether the right to claim restored property of unregistered movable property should apply the limitation of action.The second part,the relevant provisions of combing the domestic academic controversy and comparative law.Supporters believe that the reason the right to request return of the original statute of limitations should apply mainly lies in the legitimacy of the existence of the prescription system,vacuum rights issue is not sufficient to exclude its application timeliness,returning the original object is relatively independent claim.Opponents argue that the reason why the claim of returning property should not be applied to the statute of limitations is mainly the content of the right to return to the property,the legitimacy of the limitation of action,the current legislative environment in China,the substitutability of the system of good faith acquisition,etc.Wait.The classification examines the relevant provisions of this issue in extraterritorial countries.The countries represented by Japan and France believe that the claim of returning property is not applicable to the limitation of action.The countries represented by Germany and the Netherlands believe that the right to return the property should be subject to the limitation of action.The third part,it is argued that the right to claim the return of the unregistered movable property owner should be applied to the limitation of action.Firstly,the reason why the right of restitution claim should not be applied in litigation is not valid.Specifically for the emergence of a right vacuum,the nature of the real right claim as the content of the real right,encourage private relief,the substitution of relevant systems,the protection of malicious possessors,real right claims are superior to claims for creditors' rights.Secondly,the limitation of action should be applied to the right to claim restored property.The justification of the limitation of action decides that the right to claim restored property should be applied to the limitation of action,which is positively proved in terms of protecting the third party's trust interests,improving transaction efficiency,presumption of rights and rational allocation of judicial resources.The fourth part,in view of the problem that the application of limitation of action to the right of restitution claim of unregistered movable property holders may bring about a vacuum of rights,puts forward the corresponding mechanism.It is not advisable to legislate that the right to claim restored property is restricted by both the limitation of action and the limitation of acquisition.This path not only faces the right of the right holder to request the return,but the possession is unable to obtain the ownership problem,that is,the problem of ownership emptiness,and it faces the practical obstacle to the current legislation without statute of limitations.In this regard,the right to claim restored property is only subject to the limitation of action system.We can learn from the "bridging clause" of the Netherlands,which stipulates that the legal effect of the expiration of the limitation period of the right to claim restored property is to eliminate the right to claim together with the original right in order to completely eliminate the separation of possession and all rights.