消灭时效制度研究
发布时间：2018-08-04 21:00
【摘要】：消灭时效发源于古罗马法务官时期,形成于戴育图二世,是大陆法系各 国民法共有的一项基本制度。1986 年我国颁布的《民法通则》确立了消灭时 效制度,称为诉讼时效,由于立法时受当时同为社会主义国家的苏联、匈牙 利等国的影响,与传统大陆法系国家相比有较大不同。主要表现为:(1)只 规定了消灭时效而没有规定取得时效;(2)为体现民法对社会主义公有财产 的保护,规定了国家财产不适用消灭时效;(3)赋予法院不待当事人主张, 自动援引时效审判案件的权利;(4)为督促当事人尽快行使权利,规定了较 短的时效期间;(5)扩大法院的自由裁量权,赋予其延长时效的权利。 消灭时效制度表面上对权利人较为不利,造成了法律与道德的紧张关系。 但它有助于维护己经形成的社会经济秩序,促进权利义务关系的稳定;有助 于保护债务人的利益;有助于提高司法效率;有助于督促权利人及时行使权 利。 消灭时效以请求权为客体,时效届满后义务人取得对抗权利人请求的抗 辩权。为与消灭时效制度相衔接,我国应尽快规定取得时效制度;但在规定 2 WP=4 取得时效时,要注意其与消灭时效的配套与衔接,避免出现"法律上的所有人 不能占有所有物,标的物的占有人无从取得所有权"的相脱离的局面。 消灭时效以请求权为客体,请求权以外的其他权利不能适用时效的规定, 但并非所有的请求权都会罹遇时效,应当根据基础权利的不同进行讨论。(1) 物上请求权属于消灭时效的客体,但登记的物权会在社会公众中产生公信力, 任何人都可以通过查询登记资料了解权利的归属,因而已经完成登记的标的 物发生的物上请求权不适用时效。(2)由于亲属关系不受时间限制,以身份 利益为内容的亲属法上的请求权也不受消灭时效的限制。(3)与一定法律关 系相伴始终的请求权,可以认为在该法律关系存续期间请求权能够不断发生, 因此也应不适用消灭时效的规定。 消灭时效的起算,主要存在请求权发生、请求权可得行使与知道或应当 知道权利受侵害三种标准,每种标准都是有利有弊、难以与消灭时效的立法 宗旨全然相符。这是由于不同的立法宗旨各根据自身的需要在时效起算上有 所要求,这些要求之间又相互矛盾所造成的。解决方案可以是对同一请求权 适用双重消灭时效,以请求权可得行使作为时效起算的客观标准,以当事人 知道或应当知道请求权发生作为时效起算的主观标准。 消灭时效可以因权利人起诉、请求及义务人承认而中断,可以因法定事 由的发生而中止。我国民法规定的时效期间太短,对债权人保护不周,既不 适应市场经济的发展,也不利于社会信用的培养和形成。世界各国虽有缩短 时效的立法趋势,我国却应当对现行的时效期间加以延长,以加强对债权人 的保护。在商事领域中,鉴于商事时效肩负着推动经济发展的任务,应当将 民法与商法的时效分别规定,商事时效的期间应当短于民事时效的期间。 3
[Abstract]:The age of extinction originated in the period of ancient Rome, and was formed by Dai Yu II.
A basic system of the common law of the people's Republic of China was established in.1986.
The effective system is called the limitation of action, because the Soviet Union was the same as the Soviet Union in the socialist country at that time.
The influence of Li and other countries is quite different from that of the traditional civil law countries. (1) only
It stipulates the prescription of limitation of action without stipulating the acquisitive prescription; (2) in order to embody the public property of the civil law.
The protection stipulates that the state property is not applicable to extinction prescription; (3) the court is not required to be advocated by the parties.
The right to invoke the case of time trial automatically; (4) to urge the parties to exercise their rights as soon as possible.
A short period of time; (5) expanding the discretion of the court, giving it the right to extend the prescription.
The system of limitation of action on the surface is more unfavorable to the rights holders, resulting in the tension between law and morality.
But it helps to maintain the social and economic order that has been formed, and promotes the stability of rights and obligations.
It protects the interests of debtors, helps improve judicial efficiency, and helps the right holders to exercise their rights in time.
Li.
After the expiration of the limitation of time, the obligee obtains the right to resist the right holder's request.
In order to link up with the system of limitation of action, China should stipulate the acquisitive prescription system as soon as possible.
Two
WP=4
In the acquisitive prescription, we should pay attention to the matching and connection between the prescription and the prescription, and avoid "everyone in the law".
Possessor cannot be possessed. The possessor of the subject matter can not get the situation of "separation of ownership".
When the right of claim is taken as the object, the other right beyond the claim can not be applied to the prescription of limitation.
However, not all claims will be subject to limitation. They should be discussed in the light of different basic rights. (1)
The right of petition belongs to the object of prescription of extinction, but the right of registration will produce credibility in the public.
Anyone can know the ownership of the right by inquiring the registration data, so that the target of registration has been completed.
The right to claim things on matter is not applicable. 2.
The right of claim is not subject to limitation of limitation. (3) with certain laws.
With the right of claim, it can be considered that the right of claim can continue to occur during the duration of the legal relationship.
Therefore, the prescription of elimination of limitation should not be applied.
At the beginning of the prescription of extinction, the right of claim arises mainly, and the right of claim can be exercised and known or ought to be.
Knowing that the right is infringed on the three standards, each standard has advantages and disadvantages, and it is difficult to rule out the prescription.
The purpose is quite consistent. This is because different legislative purposes are based on their own needs and are available at the time limit.
There is a contradiction between these requirements. The solution can be the same claim.
The application of double elimination of limitation shall be exercised with the right of claim to exercise the objective standard as the beginning of prescription.
Know or should know that the right of claim occurs as the subjective standard for the beginning of prescription.
Limitation of action can be interrupted by the right holder's prosecution, request and obligor's recognition.
The period stipulated in the civil law is too short to protect creditors.
To adapt to the development of market economy is not conducive to the cultivation and formation of social credit.
China should extend the existing limitation period in order to strengthen its creditors.
In the field of Commerce, in view of the task of promoting economic development in the light of commercial limitation, we should
The limitation of civil law and commercial law stipulates that the period of commercial limitation should be shorter than that of civil prescription.
Three
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D913
本文编号：2165117
[Abstract]:The age of extinction originated in the period of ancient Rome, and was formed by Dai Yu II.
A basic system of the common law of the people's Republic of China was established in.1986.
The effective system is called the limitation of action, because the Soviet Union was the same as the Soviet Union in the socialist country at that time.
The influence of Li and other countries is quite different from that of the traditional civil law countries. (1) only
It stipulates the prescription of limitation of action without stipulating the acquisitive prescription; (2) in order to embody the public property of the civil law.
The protection stipulates that the state property is not applicable to extinction prescription; (3) the court is not required to be advocated by the parties.
The right to invoke the case of time trial automatically; (4) to urge the parties to exercise their rights as soon as possible.
A short period of time; (5) expanding the discretion of the court, giving it the right to extend the prescription.
The system of limitation of action on the surface is more unfavorable to the rights holders, resulting in the tension between law and morality.
But it helps to maintain the social and economic order that has been formed, and promotes the stability of rights and obligations.
It protects the interests of debtors, helps improve judicial efficiency, and helps the right holders to exercise their rights in time.
Li.
After the expiration of the limitation of time, the obligee obtains the right to resist the right holder's request.
In order to link up with the system of limitation of action, China should stipulate the acquisitive prescription system as soon as possible.
Two
WP=4
In the acquisitive prescription, we should pay attention to the matching and connection between the prescription and the prescription, and avoid "everyone in the law".
Possessor cannot be possessed. The possessor of the subject matter can not get the situation of "separation of ownership".
When the right of claim is taken as the object, the other right beyond the claim can not be applied to the prescription of limitation.
However, not all claims will be subject to limitation. They should be discussed in the light of different basic rights. (1)
The right of petition belongs to the object of prescription of extinction, but the right of registration will produce credibility in the public.
Anyone can know the ownership of the right by inquiring the registration data, so that the target of registration has been completed.
The right to claim things on matter is not applicable. 2.
The right of claim is not subject to limitation of limitation. (3) with certain laws.
With the right of claim, it can be considered that the right of claim can continue to occur during the duration of the legal relationship.
Therefore, the prescription of elimination of limitation should not be applied.
At the beginning of the prescription of extinction, the right of claim arises mainly, and the right of claim can be exercised and known or ought to be.
Knowing that the right is infringed on the three standards, each standard has advantages and disadvantages, and it is difficult to rule out the prescription.
The purpose is quite consistent. This is because different legislative purposes are based on their own needs and are available at the time limit.
There is a contradiction between these requirements. The solution can be the same claim.
The application of double elimination of limitation shall be exercised with the right of claim to exercise the objective standard as the beginning of prescription.
Know or should know that the right of claim occurs as the subjective standard for the beginning of prescription.
Limitation of action can be interrupted by the right holder's prosecution, request and obligor's recognition.
The period stipulated in the civil law is too short to protect creditors.
To adapt to the development of market economy is not conducive to the cultivation and formation of social credit.
China should extend the existing limitation period in order to strengthen its creditors.
In the field of Commerce, in view of the task of promoting economic development in the light of commercial limitation, we should
The limitation of civil law and commercial law stipulates that the period of commercial limitation should be shorter than that of civil prescription.
Three
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D913
【引证文献】
相关硕士学位论文 前3条
1 刘立斌;论消灭时效之客体[D];中国政法大学;2006年
2 陈元庆;诉讼时效若干问题研究[D];华东政法学院;2005年
3 车丽华;消灭时效制度的若干问题研究[D];延边大学;2006年
，本文编号：2165117
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