Study On The Exercise Of The Right Of Defense Of Limitation Of Action

For the first time,the effectiveness model of our country's statute of limitations is clearly defined in the form of law as " the emergence of the right of defense ",which is clearly stipulated in the General Principles of Civil Law.However,in this effectiveness model,the relevant laws and judicial interpretations in China have not made systematic provisions on the exercise of the right of defense of the prescription of action,which makes the prescription of action system and other systems fail to be effectively connected,leading to many difficulties in judicial practice.Therefore,it is necessary to take article 192 of the General Principles of Civil Law as the center and combine the limitation of action system and the right of defense system to discuss the exercise of the right of defense of the prescription of action from the three perspectives of the conditions of exercise,invoking rules,abandoning rules and exercising effectiveness.The Chapter I of this paper is the introduction,which mainly introduces the source,scope,research methods and literature review of this paper and explores the positive significance of changing the effectiveness model of litigation prescription in China,and emphasizes the purpose of the topic.At the same time,it points out the key issues to be studied by taking the exercise of rights as the main logical line.The Chapter II analyzes the institutional dilemma of the right of defense in the course of the exercise of the statute of limitations.Since the relevant laws and judicial interpretations in our country have not specified the exercise of the right of defense against the limitation of action,not every link of the obligator has laws to follow when exercising the right of defense against the limitation of action.The conditions for the exercise of the right of defense,the rules of invoking,the rules of waiving and the effectiveness of the exercise of the right of defense of the statute of limitations need to be further clarified.The Chapter III analyzes and demonstrates the conditions for the exercise of the right of defense according to the provisions on the limitation of action in the General Principles of Civil Law and the connotation of the doctrine of the occurrence of the right of defense.In order to exercise the right of defense of limitation of action,three conditions must be satisfied at the same time.Only after the above three conditions are satisfied,can we further explore the rules of invoking and abandoning the right of defense of the statute of limitations.The Chapter IV starts from invoking and abandoning the rules,discussing how the obligor can exercise the right of defense when the conditions for the exercise of the right of defense in the limitation of action are satisfied.While guaranteeing the realization of the obligor's limitation interests,it can avoid the infringement of the public interests and the legitimate rights and interests of the third party due to the exercise of the right of defense of limitation.The Chapter V discusses the effectiveness of the exercise of the right of defense of the limitation of action,and specifically analyzes the impact of the exercise of the right of defense of the limitation of action on the debt of the expiration of the limitation of action,the impact on the offset and the impact on the real right of security.To clarify the effectiveness of the right of defense is helpful to realize the effective connection between the prescription system and other systems.The conclusion summarizes the viewpoints,emphasizes the significance of studying the right of defense against prescription,and indicates that the study and analysis of the right of defense against prescription is still at the preliminary stage,which needs further in-depth and detailed investigation.