The Research On The Ethical Crisis Of The Prscription In Civil Law And The Way To Eliminate It

Prescription is a legal institution which set a temporal limitation on the rights by law. The running of time could have positive or negative effects. About the negative effects, two different terms have been employed for the legalinstitution under consideration:Extinctive Prescription or Limitation of Actions. Under the perspective of micro-history of private law, we could find that these two terms were the result of dividing in legal nature in the process of succession of Roman law in Civil Law System and Common Law System.Legal systems should be ethically justifiable. Prescription derived from the Roman longi temporis praescriptio, andwas gradually transplanted by Civil Law System and Common Law System in the following thousands years. So far, it is still an institution thatconstitutes an indispensable feature of a modern legal system. Therefore, the prescription system should have some ethical basis. To find its ethical basis, we could turn to the policy considerations of the prescription law. Nearly, the policy considerations in all the countries were focused on the protection of debtors and public interests. To protect the interests of debtors, the legislatorstransferred the interests belonged to the creditors to the debtors. The arguments of the legislators could be achieve the balance between the "income" of creditors and "the loss" ofdebtors, and then to achieve the corrective justice. To protect the public interests, the price (to be paidby the creditor!) is justifiedby apreponderance of happiness for the most people. All in all, it is a reflection of implementing utilitarianism.However, the ethical basis of prescription based on the corrective justice and utilitarianism could not prevent the disputes on its ethical justifiability, either in in theory or practice circles. The common theory on the ethical justifiability of prescription which usually expressed as "urge creditors to exercise his right promptly", "maintain theexisting economic order", and "relieve the debtors’ burden of judgment", were suffered widely questioned on ethics. Moreover, in the context of Chinese legal culture, theethical crisis of prescription maybe further intensified. The Chinese local society to date still presents the structural characters of acquaintance societies. The acquaintance society is a society ruled by rite, in which the social ordermainly relies on etiquette and custom rules. The anti-technical character bred in acquaintance societies actively suppresses the adjustment function of prescription regime. Meanwhile, highly emphasizing on "human sentiment" and "reason", as well as the traditional Lawsuit-WearinessCulture, constitute two important characteristics of our local legal culture. The prescription in the western legal cultural contextconflicts with the Chinese local legal culture, which result in the reduction of its ethical Justification. Hence, while the prescription regime from the western stranger society meets our acquaintance society, it falls into an unaccustomed puzzle.In the context of compiling the Civil Code in our country, to explore an approach of eliminating the ethical crisis caused by prescription is clearly of great significant. First, the prescription system should implement the principle of private autonomy, which could be a legitimate approach in ethics. However, our legislation, doctrine and practice all adhere to the position that the rules of prescription should be mandatory.It is such position that caused the application of prescription lacks buffer zones in practice.And it directly exacerbate the ethical crisis caused by prescription. There are three specific means for prescription systems implementing the principle of private autonomy. Firstly, the agreements concerning prescription should be agreed. Prescription may be facilitated, especially by shortening the period of prescription, by agreement between the parties. The parties may also agree to render prescription more difficult, especially by extending the period of prescription, up to a maximum of thirty years. Secondly, whether invoke the defense for prescription or not should be decided by debtors. The judge can neither take the initiative to invoke the provisions of prescription during the trail, nor interpret to the parties the questions caused by prescription.Thirdly, the parties should be able to deal with the interests gained by prescription. However, the parties could not abandon the prescription interests before the running of the prescription period.In addition, to eliminate the ethical crisis caused by prescription, we should also reform or harmonize the lawof prescription under the perspective of systematization, which presents concretely in the construction of subjective prescription under the model of ethical legitimacy. The construction of subjective prescription should be proceeded in two aspects:the institution of prescription period and prescription barriers mechanism. From the observation of comparative law, the institution of prescription period illustrates two tendencies of developing, the unification and the continuous shortening. Accordingly, once the criterion of the commencement of prescription period is determined, the discoverability criterion is applied comprehensively. A prescription regime which is as simple, straightforward anduniform as possible would also be desirable from the perspective of public policy. Meanwhile, applying the discoverability criterion to determining the counting ofprescription period, also correspond with the requisition of the voluntariness of ethical morality. Considering this respect, the Chinese legislation of prescription shall absorb and introduce the experience above. In the tradition of the continental legal system, prescription barriers mechanisms mainly includes two instruments: interruption and suspension. Interruption is a rather more radical interference with prescription; therefore it turns to be the most beneficial mechanism to creditors. However, in the view of comparative law, the recent new reform on prescription appears a trend to reduce the causes of interruption. While in the context of Chinese legislation, is better to do the contrary, which means absorbing the spirit of related judicial interpretation and amplifying the causes of interruption. By this can the benefits of creditors and debtors be better balanced, and the ethnical crisis of prescription be released. The suspension system in Chinese law is a hybrid from the mixture of interruption and incompletion. To fully protect the benefits of creditors, our suspension system should introduce a minimum period, namely the practice that prolong the prescription remained aftersuspension ground disappeared to the minimum period.In the respect of the causes of suspension, China should confront the ethical significance of family relationship, and to correct the omissions of such causes. Precisely, the familial affairs are mainly composed by the existence and continuation of marriage, guardianship and soon.