The Study On The Prescription To The Claim Of Restitution Of Property

The general principles civil law of the People's Republic of China does not stipulate whether the limitation of action system can be applied to the right of the claim of restitution of property.Scholars have different opinions on this issue.In practice,courts approach the issue differently.Most of the court clearly stated in the judgment that the right of the claim of restitution of property is not applicable to the prescription of action.Some courts did not respond to the question of the right to return the original object raised by the parties,but only indicated in the judgment that the provisions of the property law are applicable and the original object should be returned,which did not indicate the applicable provisions or whether the right to return the original object is applicable to the statute of limitations and so on.Different countries have different legislative choices.The French civil code,the Italian civil code,the general principles of European contract law and the draft common reference framework of European civil code all exclude the right of claim for return of original object from the scope of limitation of action.Article 194 and article 902 of the German civil code stipulate that the right of claim is subject to the limitation of action,with the exception of registered rights.The‘civil law'of Taiwan stipulates that the right of claim shall be subject to the limitation of action,except for the immovable property that has been registered according to the interpretation of the Supreme Court.Article 188 and article 196 of the general principles of the civil law of the People's Republic of China promulgated on March 15,2017 can be presumed that the limitation of action is applicable in principle to the right of the claim of restitution of property,with the exception of immovable property and registered movable property,which is not applicable to the prescription of action.This paper argues that the application of the limitation of action system to the right of claim for the return of the original movable property is not to urge the right holder to exercise their rights and other traditional values,but to protect the reasonable trust of an unspecified third party.The reason why the limitation of action is not applicable to the claim of restitution of real property and registered movable property is to protect the credibility of registration,and the reason why the claim of restitution of unregistered real property is not applicable to the limitation of action system is to better protect farmers' housing property rights.However,with the continuous improvement of the rural real estate registration system,this paper believes that the right to return the original objects of the registered real estate should be applied to the limitation of action system.After the limitation of action has been applied to the claim for the return of the original thing of the registered chattel,the possessor may use the thing,but shall pay a reasonable use fee;As for the ownership of usufructuary rights and interests,it shall be determined according to the general provisions of the property law;The right to dispose of the property shall belong to the owner of the property.In order to solve the separation of possession and ownership caused by the application of the limitation of action for the right to return the original object,this paper suggests that the acquisitive prescription system should be stipulated to unify the possession and ownership of the object.The object of the statute of limitations is not only limited to the unregistered chattel property right,but also includes some real estate and property rights.The statute of limitations should not take good faith as the constituent element,but should take good faith as the element to determine the length of the statute of limitations.The legal effect of the possessor's ownership of the acquired property due to the time limitation of acquisition is that the burden of the material disappears,the creditor's right other than the right of unjust enrichment lasts,and the right is not retroactive.If the possessor transfers the possession of the possessor to a third party within the time limit of possession,the third party may inherit the time limit of possession from the original possessor,provided that the period during which the third party may acquire the ownership of the possessor under the time limit shall be judged according to the goodwill of the possessor and the original possessor.