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On the Right to Petition the statute of limitations

Author: SongYaJuan
Tutor: FengYongJun
School: Zhengzhou University
Course: Civil and Commercial Law
Keywords: Claim of the right Property Protection The statute of limitations Return the original claim
CLC: D913
Type: Master's thesis
Year: 2009
Downloads: 172
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Abstract


Claim of the right theory maturing, but among scholars for its specific content and more controversial, national legislation and regulations are mostly different. Such as Japan, China and France does not require the claim of the right, but the judicial precedents and academia generally recognized the existence of the claim of the right. Taiwan Civil Code and the German Civil Code provisions in the ownership section based on the ownership of the three claims, mutatis mutandis, the provisions of the ownership of the property rights other than ownership of his property provisions in section. The difference is that the claim of the right in Germany actually as ownership of a protection method to be provided for, and effectiveness as a real right or authority to be provided in the Taiwan region. China's existing legislation no specific provisions on the claim of the right system is not clear whether the claim of the right for proceedings, which also brought the law applicable to the confusion and chaos in the academic disputes and legal practice. So as soon as possible to the provisions in the legislation, the claim of the right system, in particular, whether the claim of the right to apply the statute of limitations provisions of great significance. This paper argues that our legislation is necessary to the claim of the right system to be complete requirements, including the claim of the right concept selection, defining the nature and form, including in particular the question of the relationship of the Right to Petition the statute of limitations: for consideration of the legal term scientific future legislation should be selected \Property Protection \Second, the claim of the right includes only return the original claim, the right to request removal of obstacles and eliminate the risk of three forms of claims, not including the recognition of property rights, restitution and damages claims. Confirm property rights is essentially a claim of the right to exercise the premise is procedural law rather than substantive law rights; restitution and damages has a very close relationship, creditor claims. The third claim of the right should be characterized as an independent claim of property rights and claims. Property rights as well as the effect of real right of claim of the right to their basic rights are inextricably linked, but when the the successful dominant state of the property rights was damage or risk of damage, the claim of the right highlights the effect of real right real differences, such as the request of the right holder the right to exercise, relativity and so on. In addition, the claim of the right to reply the successful domination of state property exercised direct control purposes and Real. So whether it is from the effectiveness of the rights or the right to objective, not simply the claim of the right is equivalent to the effect of real right; claim of the right is also different from the claims. The claim of the right is not directed against any property of the relative, its implementation does not the debtor's ability to pay or credit to the elements, and the general claims involving mutual rights and obligations between the peer has a substantial difference in the burden of direct property of the debtor or, difficult or can not be fully applicable to the general rules of the law of obligations. Fourth, the claim of the right should apply the statute of limitations, and should inspect aging applicability of its three forms. Whether the claim of the right to apply the statute of limitations, in close contact with the object of defining the nature of the statute of limitations of the claim of the right problem. In Japan, China and France, the claim of the right as a role of property rights, since can not be divorced from the Right alone time limit for action; object of the statute of limitations in Germany, China and France for the \return the original claim to be bound by the statute of limitations, the claim of the right to apply the statute of limitations. China's current law on the statute of limitations applicable to the scope of the claims, the concept of more general, likely to cause undue expansion of the object of the statute of limitations, legal practice, whether the statute of limitations for the claim of the right did not form a unified understanding, resulting in the same legal facts different legal consequences of the phenomenon, and should therefore be the legal relationship between the two to be clear. Right to Petition claims of debt, with the typical type of claim, the time limit for action object basis; claim of the right to apply the statute of limitations is not contrary to the legislative intent of the statute of limitations and institutional value, and the request from the property rights the right system value point of view, if such a request the right to long-term exercise, not only to make the existence of the claim of the right purpose is not reached, and no function of the security of the transaction, and should therefore be clear that the claim of the right to be bound by the statute of limitations. But the obvious differences between the three forms of the claim of the right should be inspected. Removal of obstacles to eliminate dangerous claims no room for the application of the limitation of actions. The return of the original claims should apply the statute of limitations, but you should be to set a more reasonable limitation period. The proposed future legislation Civil Cheng Li, Taiwan Area and the statute of limitations will return the original claim set for the period of 15 years, and will be registered on top of the real estate restitution is excluded from the scope of application of the limitation of actions.

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CLC: > Political, legal > Legal > UNIVERSITY > China and France
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