On The Extinguishing Limitation Of The Petition Right On Property

It is a controversial question whether petition right on property could apply to extinguishing limitation for a long time. On the eve of enacting Civil Law Of China, it is necessary to resolve this dispute.Firstly, this article discusses the nature of petition right on property, on the basic of analyzing and evaluating several theories, the author agrees with Independent Petition Right Theory. The author figures out that petition right on property is a dependent petition right attached to property right. This conclusion is established on the two levels. The first level is established on analyzing petition right that is an epigynous concept of petition right on property. The author believes that any civil right includes two parts from the civil right structure perspective, which are basic right and petition right. The petition right is not exclusive in credit right. It's also holding by property right, personality right, etc. A completed petition right composed by both ideal petition right and practical petition right. The former concept exists as part of civil right when normally exercising basic right. The latter concept exists in form of relief right that is relative independent when the basic right is infringed. The second level is established on making petition right theory apply to petition right on property. The petition right on property is falling into neither property right nor credit right, but emerges as a relative independent right on the basic of property right. We should apply relevant rules of petition right to them. But petition right on property is an inartificial protection method, which is deeply influenced by basic right to some degrees. So petition right on property has different characteristic from the other petition rights. There are three kinds of petition right on property, just as follows: claim for restitution, claim for removal of obstacles, claim for preventing the harm to ownership.Secondly, this article discusses the effect and object of the extinguishing limitation. The author agrees with The Right To Defense Occurrence Theory, which believes that obligor have right to defense against the obligee after the extinguishing limitation period. So petition right, which is against the right to defense, is the object of extinguishing limitation. The reason of application of extinguishing limitation is the long-term existence of petition right will make the obligee be in an uncertain state. So the law should impose restriction on the petition right's exercising period.At last, this article discusses whether the petition right on property will be applied to extinguishing limitation. The author agrees with The Compromise Theory after retrospecting the stance of the civil law countries and analyzing all kinds of theories. This article holds the view that petition right on property is one of the petition right, the object of extinguishing limitation is petition right, so petition right on property could become the object of extinguishing limitation. When judging on some specific petition right on property, the"Appearance Judgment"should become the fundamental standard, which refers to whether the obstacles aiming at property could establish certain publication effect in appearance and then brings into certain public trust power. The registered real property right, which exercises rights on form of registering property right on registration book, should not apply to extinguishing limitation because of lack of misjudgment possibility. In personality property, there is only one petition right on property, which is claim for restitution, could become the object of extinguishing limitation. The reason is the unauthorized occupying, which is the form of obstacle of claim for restitution, will make the general public gradually trust the occupier is owner and establish more and more legal relation with them after the time past. At this time, if the law damages the relations suddenly, it will make the social and economic order unstable.