【作者】 胡玉明；

【导师】 孙学致；

【作者基本信息】 吉林大学 ， 经济法学， 2009， 硕士

【摘要】 诉讼时效客体是指诉讼时效制度所指向和作用的对象,即哪些权利可适用于诉讼时效。诉讼时效制度有其独特的功能,其功能决定了诉讼时效客体的本质特征,即权利主体和义务主体的特定性;权利内容的财产性;以社会整体经济效率和交易秩序为权重。诉讼时效客体的研究,从根本上说是为了使诉讼时效制度的设计日臻完善,最大限度地实现该制度维护法律利益平衡的宗旨。笔者在研究由成熟立法规定归纳而成的学说基础上,进一步考量权利性质,同时综合诉讼时效的法律效果等内在因素的相互作用,探究诉讼时效客体的性质。客体的性质决定了客体的内容,本文逐一分析债权请求权、物权请求权、人身权请求权、知识产权请求权是否适用诉讼时效,在此基础上探寻各类请求权是否适用诉讼时效的判断规则,即从分析权利性质入手,着重进行价值衡量,从而实现诉讼时效最合理的制度设置。更多还原

【Abstract】 Extinctive prescription refers to the system that when people do not exercise the rights through a legal period their effects will be impaired. The object of extinctive prescription is the scope in which the system uses, namely, what kinds of rights can be applied to limitation of action.The system is functionally significant, which leads to the internal features of its objects. Firstly, the certainty of its subjects for both rights and obligations; secondly, the possession feature of the extinctive prescription rights, thirdly, it shall balance the economic profit and the commercial order in common. The internal facts of the system are actually attached to each other; the research of its objects is significant for the research of other facts and rational configuration. Meanwhile, the definition of its objects has positive effects to rational construction of related systems. The objects the system applied, will directly affect the protection of citizen rights and the constant of social order, and the balance of legal value choices. A comprehensive research on the objects will provide theoretical foundation for future civil laws, and it will maintain the stability and authority of civil law.The theories of the objects’natures are normally inducted from mature legislations, they are: lawsuit right theory, entity right theory, requesting right theory. Based on the induction, the writer thereby analyzed the natures of domination rights, formation rights, defensive rights, and application rights. Meanwhile, based on the effects of the system and other internal facts, we lead to the conclusion that the nature of the objects is relief request rights.The request right for relief, as the foundations are different, can be divided into request right for claims、property、personality、intellectual property and so on. As the different nature of objects, the extinctive prescription rules applied are different.The right of claims request takes property interests as its content so it does not have a dominant and because the people do not exercise their rights during a long period, their relation is in an uncertain status which is harm for the stability of transactions; people who do not exercise their right in a long period will give the relative people the impression that they will never ask for their right and do other transactions accordingly. People who do not exercise their right timely will affect the freedom of the relative people and the certainty of the transactions with third-party. So it is necessary to limit the period to exercise the right and take the right of claims request into the extinctive prescription system. As the practical problem in the judicial is complicated and the request rights include a variety of claims, some claims of right to request are not applicable for the limitations, such as payment of principal and interest、the request payment of bonds, financial bonds、as well as payment of principal and interest of corporate bonds offered to non-specific object and if these are under the extinctive prescription it will conflict with the principle of public welfare. Take the request right for fund in some occasions as an example, if the extinctive prescription system is used, it will be against the principal of capital adequacy and is bad for the development of corporate and other shareholders and creditors, so the system can not be used here. There are other rights that the system should not apply, such as : the damage relief request rights for national non-management processions, request for paying the principle and interests of savings, request for fulfill the national bonds or financial bonds, request for fulfill the principle and interests of company bonds issued to uncertain subjects, the request for sharing of interests between partner. For the claims between couples, there should be special rules, for example, it may be requested any time while the marriage sustained, and when divorced, the extinctive prescription period should be 3 years. Meanwhile, other extinctive prescription rules are applied.Property request rights are the right that when property suffers violations, the people ask for the restoration of property or prevent further violations. According to the writer, the property request rights is based on the protection of original rights, they can not be separated. However, such request right, as a kind of relief request right, may be applied by related rules, it is comparatively independent. Therefore, the returning requests for unregistered movable properties may apply the system, yet such requests for registered moveable properties or real estates shall not apply such rules. And the requests for exclusion of impair and elimination of damage may not be applied by such system.The right for personal right includes the right to request the personality and the identity. The request right of personality is based on the violations of personality right and is in order to satisfy the personality status. Among which, the request to stop the abuse, eliminate dangerous, restore the reputation, correction should not be limited by the extinctive prescription. And the request for mental compensation should be available constantly with no limit. The right of identity refers to the time when the civil right has been violated or at the risk of abuse, and to ask the perpetrators to do something or not, in order to maintain the status of identity. According to the writer, such rights should not be ruled under the extinctive prescription system, because the request is disobey with the value of the system itself.Intellectual property rights refers to the time when the right is harmed, people can ask the perpetrators to do something or not, in order to maintain the status of intellectual property rights, and it includes the right to stop the harm、the right to remove、the right to request an apology. The first kind is with request for payment of certain procession interest, which should be ruled under the prescription system, while the second kind should not be ruled because it has no direct procession relations.The requests for the suit of confirmation, alter, neighborhood relations are special, the article will thereby analyze their application of the extinctive prescription separately. .更多还原