【作者】 高山；

【导师】 李建华；

【作者基本信息】 吉林大学 ， 法律， 2007， 硕士

【摘要】 诉讼时效制度作为一项基本的民事法律制度在1986年颁布的《中华人民共和国民法通则》中得以确立,并在社会生活和审判实践中发挥着重要的作用。但是,随着有中国特色的社会主义市场经济向纵深方向的发展,社会的进一步转型,现行诉讼时效制度的规定较为抽象笼统、原则简单以及立法精神前后不一致等问题日益突显,给司法实践带来困难。本文针对现行诉讼时效制度存在的不足,借鉴国外和我国台湾地区有关诉讼时效制度的规定,提出以下观点和建议:基于当事人利益的合理确定和平衡,最大限度地阻止法的冲突中价值丧失与耗损,使时间规范具备可操作性,将请求权分为适用诉讼时效的请求权、不适用诉讼时效的请求权和特定条件下适用诉讼时效的请求权;我国诉讼时效期间应规定从请求权能够行使之日起算,普通诉讼时效期间延长到3年为宜,要明确各类诉讼时效期间的适用对象,增加特殊诉讼时效期间的适用情形,并作不同的期间规定;我国诉讼时效期间届满后的法律效力应采纳抗辩权发生说模式,在未来的民法典中可作如下规定:“诉讼时效完成后,债务人有拒绝给付的权利;超过诉讼时效期间,债务人仍然履行的,不得请求返还。”更多还原

【Abstract】 The system of limitation of action is an important time criterion in civil law, which influences multiple legal relations in many fields of civil law. Reasonable determination and balance as well as practicability should be concentrated while the system of limitation of action is designed. This point seems especially important since our country is now drafting the Civil Code. This paper mainly discusses three issues including the application scope of our system of limitation of action, the time period regulated by the system of limitation of action and legal validity beyond the prosecution time period. So this paper actually consists of three parts.Part 1 The application scope of our system of limitation of actionIn this part, the basis for determination of the application scope of the system of limitation of action in China is firstly analyzed. In the author’s opinion, the system of limitation of action aims to determine an overall criterion for the system of limitation of action. Social reality and dealing habit is also one of the criteria for the application scope of the system of limitation of action. Justice of laws and conflict between justice and order will greatly influence the application scope of the system of limitation of action. Based on the traditional legislation the legislators’understanding towards the nature of various rights, selection and weigh among relative legal interests, there are four kinds of different legislative style, including obligation style, property beyond obligation and ownership style, prosecution style and claim style. There are no provisions on the variety of the application scope of the system of limitation of action in China in our current legislation, which leads to imbalance between theory and practice. On one hand, the application scope of the system of limitation of action is too broad in judicial practical, while on the other hand, some people are aware of the injustice led by the broadness of the application scope, so that the applicable rights have not been applied or properly applied since they are too cautious on matters related with the application scope of the system of limitation of action. In addition, failure to exactly determine the application scope also influences the implementation of specific system of the system of limitation of action as well as the rationality of system design.On the basis of the above discussion, the claim right concerning the application scope of the system of limitation of action in China is divided into three categories, such as claim right applicable to the scope, claim right not applicable to the scope, and claim right applicable to the scope in certain conditions.Part 2 The time period regulated by the system of limitation of actionThe length of the prosecution time period is one of the important factors to see whether the obligee’s interests could be effectively protected by law. It is also a crucial legislative lever to coordinate the conflict between public interests and private rights. The basis for determination of the prosecution time period can be reflected in three aspects: first, it should match with the system of the system of limitation of action; second, it should accord with the situation in China; third, legislation system in foreign countries and other areas should be referred. According to our current civil law, the provision on prosecution time period can be divided into three category, including common prosecution time period, special prosecution time period and the maximum prosecution time period. The current legislation on our prosecution time period matches the actual demand in the early 1980s when our legislation system is in urgent need to be developed. With the significant reform of our economic system and further establishment of the idea of private rights protection, the weakness of our current regulations generally exposes. The common prosecution time period is too short, while the special prosecution time period is not clearly specified, and it lacks pertinence. Furthermore, common prosecution time period and special prosecution time period can not be definitely distinguished. There are 3 kinds of legislation styles concerning the initial determination of prosecution time period: first, it is determined since the claim right is given; second, it is determined since the claim right can be actually used; third, it is determined since the obligee knows or should know his right is infringed. The way we adopt is the third style. Since the common prosecution time period and some special prosecution time period involving great interests of obligees is too short, it is difficult to protect the obligees’rights according to our present legislation. Consequently, in our future legislation, it should be specified that the prosecution time period is determined since the claim right can be actually used.The rule that the prosecution time period is determined since the claim right can be actually used is commonly applied in continental legal system states, because a longer prosecution time period is specified and the initial determination of prosecution time period matches with the length of period in those countries. Thus, the author makes the following suggestions on improving our legislation about the prosecution time period, that is, to make sure the applicable objects for each kind of prosecution time period, to prolong the common prosecution time period, and add applicable situation for special prosecution time period and prolong the time period based on different situations and categories.Part 3 Legal validity beyond the prosecution time periodThere are three theories about the legal validity beyond the prosecution time period: one is annulment of prosecution right, another is annulment of equity, and the third is endowment of defense right. Annulment of prosecution right is on the basis of the theories relative with legislation on protecting public interests. For obligees, it seems somewhat unfair, and it does not accord with common ethics. Moreover, it will lead to vacancy of rights. Annulment of equity not also protects the public interests but also private rights, however, the equity concerning prosecution time period is difficult to define. It may cause and effect, which seems as a lack of logic in legislation. The doctrine that one will lose the prevailing right related with annulment of prosecution right is against the autonomous spirit in civil law and the decentralization of authority in civil procedure law. Moreover, it is against the basic requirement of neutral court and fair procedure. Comparatively, the endowment of defense right is reasonable.The current civil legislation adopts annulment of prevailing right which can explain that the finished time period can not lead to elimination of legal effect from the theoretical aspect and also clarify the difference between prosecution claimed by the obligee and his claim supported by the court. Definitely, the defect of this doctrine is obvious. First, the concept of prevailing right seems to be arbitrarily produced; second, the concept of prevailing right which seems quite contradictory with right in procedure law may make people confused; third, annulment of prevailing right will lead to failure to coordinate between the validity of limitation period and application scope of limitation period; finally, annulment of prevailing right may lead to conflict among the contents concerning the limitation system.The endowment of defense right should be adopted due to the following reasons: first, it totally matches with the purpose of the limitation system; second, it considers the obligee’s disposal right; third, it accords with the practical requirement of juridical reform; fourth, it reasonably explains the behavior that obligee’s voluntary exercise when the time period is expired; fifth, it accords with the tendency of development of limitation system. Once the endowment of defense right is introduced, the following complement could be made, such as when the prosecution time period is finished, the debtor is entitled to refuse payment; the debtor can not ask for redeem if he pays beyond the time period. In this case, the legal effect beyond the prosecution time period is specified and the debtor will obtain defense right. This fully reflects the autonomous principle of private laws, which will promote the integration of legislation and morality, as well as overcome the defects of statements in the original legislation.更多还原