消滅時(shí)效制度研究
發(fā)布時(shí)間：2018-08-04 21:00
【摘要】：消滅時(shí)效發(fā)源于古羅馬法務(wù)官時(shí)期,形成于戴育圖二世,是大陸法系各 國(guó)民法共有的一項(xiàng)基本制度。1986 年我國(guó)頒布的《民法通則》確立了消滅時(shí) 效制度,稱為訴訟時(shí)效,由于立法時(shí)受當(dāng)時(shí)同為社會(huì)主義國(guó)家的蘇聯(lián)、匈牙 利等國(guó)的影響,與傳統(tǒng)大陸法系國(guó)家相比有較大不同。主要表現(xiàn)為:(1)只 規(guī)定了消滅時(shí)效而沒有規(guī)定取得時(shí)效;(2)為體現(xiàn)民法對(duì)社會(huì)主義公有財(cái)產(chǎn) 的保護(hù),規(guī)定了國(guó)家財(cái)產(chǎn)不適用消滅時(shí)效;(3)賦予法院不待當(dāng)事人主張, 自動(dòng)援引時(shí)效審判案件的權(quán)利;(4)為督促當(dāng)事人盡快行使權(quán)利,規(guī)定了較 短的時(shí)效期間;(5)擴(kuò)大法院的自由裁量權(quán),賦予其延長(zhǎng)時(shí)效的權(quán)利。 消滅時(shí)效制度表面上對(duì)權(quán)利人較為不利,造成了法律與道德的緊張關(guān)系。 但它有助于維護(hù)己經(jīng)形成的社會(huì)經(jīng)濟(jì)秩序,促進(jìn)權(quán)利義務(wù)關(guān)系的穩(wěn)定;有助 于保護(hù)債務(wù)人的利益;有助于提高司法效率;有助于督促權(quán)利人及時(shí)行使權(quán) 利。 消滅時(shí)效以請(qǐng)求權(quán)為客體,時(shí)效屆滿后義務(wù)人取得對(duì)抗權(quán)利人請(qǐng)求的抗 辯權(quán)。為與消滅時(shí)效制度相銜接,我國(guó)應(yīng)盡快規(guī)定取得時(shí)效制度;但在規(guī)定 2 WP=4 取得時(shí)效時(shí),要注意其與消滅時(shí)效的配套與銜接,避免出現(xiàn)"法律上的所有人 不能占有所有物,標(biāo)的物的占有人無從取得所有權(quán)"的相脫離的局面。 消滅時(shí)效以請(qǐng)求權(quán)為客體,請(qǐng)求權(quán)以外的其他權(quán)利不能適用時(shí)效的規(guī)定, 但并非所有的請(qǐng)求權(quán)都會(huì)罹遇時(shí)效,應(yīng)當(dāng)根據(jù)基礎(chǔ)權(quán)利的不同進(jìn)行討論。(1) 物上請(qǐng)求權(quán)屬于消滅時(shí)效的客體,但登記的物權(quán)會(huì)在社會(huì)公眾中產(chǎn)生公信力, 任何人都可以通過查詢登記資料了解權(quán)利的歸屬,因而已經(jīng)完成登記的標(biāo)的 物發(fā)生的物上請(qǐng)求權(quán)不適用時(shí)效。(2)由于親屬關(guān)系不受時(shí)間限制,以身份 利益為內(nèi)容的親屬法上的請(qǐng)求權(quán)也不受消滅時(shí)效的限制。(3)與一定法律關(guān) 系相伴始終的請(qǐng)求權(quán),可以認(rèn)為在該法律關(guān)系存續(xù)期間請(qǐng)求權(quán)能夠不斷發(fā)生, 因此也應(yīng)不適用消滅時(shí)效的規(guī)定。 消滅時(shí)效的起算,主要存在請(qǐng)求權(quán)發(fā)生、請(qǐng)求權(quán)可得行使與知道或應(yīng)當(dāng) 知道權(quán)利受侵害三種標(biāo)準(zhǔn),每種標(biāo)準(zhǔn)都是有利有弊、難以與消滅時(shí)效的立法 宗旨全然相符。這是由于不同的立法宗旨各根據(jù)自身的需要在時(shí)效起算上有 所要求,這些要求之間又相互矛盾所造成的。解決方案可以是對(duì)同一請(qǐng)求權(quán) 適用雙重消滅時(shí)效,以請(qǐng)求權(quán)可得行使作為時(shí)效起算的客觀標(biāo)準(zhǔn),以當(dāng)事人 知道或應(yīng)當(dāng)知道請(qǐng)求權(quán)發(fā)生作為時(shí)效起算的主觀標(biāo)準(zhǔn)。 消滅時(shí)效可以因權(quán)利人起訴、請(qǐng)求及義務(wù)人承認(rèn)而中斷,可以因法定事 由的發(fā)生而中止。我國(guó)民法規(guī)定的時(shí)效期間太短,對(duì)債權(quán)人保護(hù)不周,既不 適應(yīng)市場(chǎng)經(jīng)濟(jì)的發(fā)展,也不利于社會(huì)信用的培養(yǎng)和形成。世界各國(guó)雖有縮短 時(shí)效的立法趨勢(shì),我國(guó)卻應(yīng)當(dāng)對(duì)現(xiàn)行的時(shí)效期間加以延長(zhǎng),以加強(qiáng)對(duì)債權(quán)人 的保護(hù)。在商事領(lǐng)域中,鑒于商事時(shí)效肩負(fù)著推動(dòng)經(jīng)濟(jì)發(fā)展的任務(wù),應(yīng)當(dāng)將 民法與商法的時(shí)效分別規(guī)定,商事時(shí)效的期間應(yīng)當(dāng)短于民事時(shí)效的期間。 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
【學(xué)位授予單位】：華東政法學(xué)院
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2003
【分類號(hào)】：D913
本文編號(hào)：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
【學(xué)位授予單位】：華東政法學(xué)院
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2003
【分類號(hào)】：D913
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前3條
1 劉立斌;論消滅時(shí)效之客體[D];中國(guó)政法大學(xué);2006年
2 陳元慶;訴訟時(shí)效若干問題研究[D];華東政法學(xué)院;2005年
3 車麗華;消滅時(shí)效制度的若干問題研究[D];延邊大學(xué);2006年
，本文編號(hào)：2165117
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