The Time Limit Of The Private-right Remedy

Since the middle and later of 20th century, no matter the natural science and the social science refocus on the meaning of time. In the field of natural science, the directivity and the irreversibility of time have been proved in theory. It is thought that the rediscovery of "time"in physics is the most important symbol of the revolution of natural view. While in the field of social science, futurist Tofler believes that the studies of "time"are still an empty field to a great extent. Though "time"is closely related to the form and process procedure of law, it is far from enough to demonstrate the legitimacy of legal system and to analyze the science of legal value with "time"as the object criterion. Or the studies of "time"of legal system only stay on the technical level of the design of system. This thesis introduces the category of "time"to the theory of private-right remedy to explore the relativity, the limitation and the economical efficiency of the private power and to search for the "time limit"of private-right remedy by the legal and economic analysis. Then realize the utmost rationality of the allocation of resources of private-right remedy and realize its efficient object. This thesis tries to be innovative in the following aspects: Firstly, this thesis asks for the systematical studies of and focuses on "time"in law. It discusses that time is a necessary category of legal studies from the five aspects that time is an important kind of legal facts, a basic element of legal procedure, an important index of legal cost, the development room for legal system and the establishment of the legal norm is restricted by objective rules in which the influence of time cannot be neglected. Secondly, this thesis points out that the values of the studies of time in law are that the legal system established with the aim of the economy of time can promote the freedom and development of human beings and realize the free pursue of law, the legal criterion established with the content of time can prescribe the boundary of the responsibilities and rights and realize the just pursuit of law, the legal procedure designed with the character of time limit can provide behavior criterion and realize the systematic pursuit of law, the legal resources disposed with the use of time can reduce the legal cost and realize the efficient pursuit of law. The material meanings of the studies of time in law are that the application of time by legal technology redounds to the advance of the innovation of legal system; the objective realization of the rules of time by social bodies conduces to the establishment of modern legal thought; the modernization of the main bodies` temporal idea helps to the modernization of legal view and legal system. Thirdly, this thesis further discusses the limit of the legal rights. The benefits embodied in the rights and the behavior extent applied for the pursuit of benefits is restricted to the social general benefits by the social and economic structure and the cultural development level. They are in the limit of the social tolerance represented by the ruling class and also of the range of legal duty and the real performing ability. The rights are deeply restricted by natural and objective factors as well as social and subjective factors, in which time is an important parameter. For the relativity of rights results in the finiteness of right relieving, while the economic characters specially possessed by private-right remedy decides that the time limit of private-right relieving is a necessary element in safeguarding the private rights. Fourthly, this thesis puts forwards that time is an important component of the procedure of private-right remedy. The behavior of the main bodies of theremedy procedure restricted by time and the spreading of it can really realize the efficient object of remedy. The application of time must be restricted within a scientific and reasonable extent in the design process of the remedy procedure. This "time limit"has its special objective connotation, proper basis and systematic meaning. Besides the introduction, this thesis is composed of five chapters. Chapter One The Timeliness and the Economic Meaning of Private-right Remedy This thesis firstly analyzes the characters and the internal spirit of private right with the start of the review of the development of the private law and private rights. It shows that the sanctity of private rights is an important character of the society ruling by law. The acquisition of the spirit of private law is mainly carried out by the academic theoretical abstract, concrete rules and systematic advice as well as the internal harmony. Secondly, it demonstrates the relativity of private rights from the view of the relativity of rights. It points out that the determining factor of the boundary of rights is the economic factors, while the timeliness of rights is one of the important objective boundaries. The time boundary of rights whether prescribed by law or plighted by parties encircles the needs of the distribution and balance of the subject of the duty. Thirdly, it excavates fatherly the economic connotation of private rights from the view of rights philosophy of Marxism and points out that the basis of private law is the system of marketing economy; the economical efficiency and the exchangeability of private rights are especially obvious. It then makes critical analysis of the theories of rights trading of the new systematical economics and legal economics. It points out that the general analysis of the cost of the rights trading neglects three questions: one, the relationship of the complex factors of trading cost and time; second, the time in the trading contrast or the calculation of the cost of right relieving; third, the plenary consideration of time for reducing the trading cost. Finally, it makesclear that the measure of benefits in the process of private rights is heavier than that in public rights. Remedy is an approach to solve the private-right contrasting and make up the loss of the benefits of the main bodies. It is the important tache in measuring benefits with the primo consideration of the utmost of material benefits. The traditional just value in law of this field will demise to efficiency. Chapter Two The Time Resources of the Procedure of Private-right Remedy This chapter firstly introduces the main kinds of the procedure of private-right remedy: self-remedy, social remedy and public remedy. It also analyzes the comparison of each function and the complementary of effects. Then it discusses the value orientation of the procedure of private-rights and introduces and comments on three symbolic value theory of procedure. They are instrumentalism theory of procedure, selfish departmentalism theory of procedure and economic benefit theory. This thesis stresses that the justice and the efficiency of the procedure of private-right remedy should proportion. This chapter also makes painstaking analysis of the time procedure of private-right remedy and points out that the influence to this procedure can be divided into macro and minor influences. The former means in the legislature concept and the value pursuit the lawmakers aim at the justice and efficiency of procedure and makes time the cur-in means. The latter includes objective and subjective aspects. The objectivity embodies in the combined action of the run out of natural time, the limits of legal time and the restrictions of conventional time. The subjectivity includes the realization of time in the concept of the procedure main body and the limits of time in behavior. From the pint of view of analyzing the elements that influence the time procedure of private-right remedy, there are public right influence and private influence. This chapter also introduces the global development tendency of the procedure revolution of private-right remedy. The common characters of the development of private-right remedy in every country are firstly that they regard "justice and efficiency"as the value object of improving judiciary and its related private-right remedy. Secondly, they commonly seekmulticultural remedy models besides the public remedy. Thirdly, they reform the civil action system with the aim of increasing the judicial efficiency especially solving the delay of action. At the end this chapter analyzes the time resources of private-right remedy and points out that time has never been highly emphasized and repeatedly calculated as the manpower, material resources and finance. The other resources have obvious independence while time is common to all bodies. The saving of time is ever the saving of whose time? Is it favored by whom? All these questions cannot be considered by the main body of procedure. The lawmakers also will neglect them for the insignificance of the subjective and objective demands of the main body of rights. The effective dispose of time is to change the single objectivity, infinity and naturalness and to make it with subjectivity, finiteness and sociality to some extent. Chapter Three: The System Connotation of Time Limit This chapter states the objective connotation, sound basis, actual evaluation and system meaning of the time limit of private right remedy. This article takes the view that the time limit of the private right remedy procedure refers to the time limit and range required during the limit of the time order process of the private right remedy in order to pursue the most benefit produced by the right of the procedure, obligation of the procedure, the activity of the procedure, responsibility of the procedure and consequence of the procedure. This "limit"could not be found in the concrete law system regulation, however, in essence, it is a kind of sense and concept, and it is a kind of scale and standard, the objective existence. The cognitive process of the "time limit"embodies the understanding and knowledge of the natural law in the social relationship taking the law as the adjusting norms and it reflects the mastering and rational appliance of the objective limitation of the law. The justification of "time limit"embodies that it urges the definition of the right and obligations of the remedy procedure main body. It is the need of public right interfering the private one; it promotes to dispose reasonable the time resource of the procedure and it is the need of promoting the efficiency of theprivate right relieving procedure; it improves the technical design level and it is the need of procedure becoming scientific; it can define the operation of the public right in the private one and it is the need of the public right interfering the private one. Examining the present private right relieving procedure system and the time limit issue are referred in relieving request right, selection right of the remedy procedure, participation right of the remedy procedure, umpiring right of relieving procedure and requiring right of forcing execution. Defining the "time limit"of the private right relieving intends to master the "degree"of the time limit to seek the true rationalization of "time limit"of remedy procedure. Chapter Four: The Influence of the Temporal Idea on the Remedy Procedure This chapter starts from the temporal idea of the main body and illustrates separately the influence of modern temporal idea, temporal idea of the clients and the temporal idea of the judges on the remedy procedures. Temporal idea is the important content of the world-view of people and it reflects kinds of concepts of the people to recognize, master and take advantage of the time and further guide the action of people. The traits of modern temporal idea are to recognize the limitation, irreversibility, rebirth and economic value of time efficiently and it is one of main parameters of the modern quality of people. Modern law procedure concept basing on the modern temporal idea as the important concept basis will influence the activity choice of the lawmaker, law officer, obligees, obligors and other participants. As one of the clients, the temporal idea of the obligee in the remedy procedure embodies on one side the active appliance of the time of the urgent requirement basing on the right and interest of the relieving entity, on the other side, it embodies the lose of time due to the late exertion of the particular suing right. The temporal idea of the obligors in the remedy procedure embodies the active observance to the time in order to get rid of the conflict of the power to restore the normal operationstate on one side and on the other, the postponing in time in order to put off the performance of the corresponding obligation of the entity. The construction of modern temporal idea makes for the obedience of the judges to the regulations of the limitation of time of the relevant lawsuit activity of the judges in the system of the lawsuit procedure; it makes for the reasonable appliance and equal distribution of the procedure resource and promotes the efficiency of the commanding lawsuit activity; it makes for the setting up scientific law thinking to reduce the cycle in trying case; it makes for the setting up the relieving concept of high efficiency, reducing the cost of the clients in solving the dispute to the least. Chapter Five: The Thinking in Constructing Private Right Remedy System in China—from the View of Time Limit This chapter first analyzes the present theoretical basis, system basis and concept basis owned by our private right relieving system and meanwhile it evaluates the reform demands of our private right remedy. It further proposes the thought of construction of the private right remedy system taking time as the resource of the procedure. Finally, from the view of the time limit of private right remedy, it proposes the lawmaking advice on the modification of civil lawsuit system.