Get The Aging System Is A Comparative Study

Prescription is an important legal system to establish and maintain property transfer. Positive prescription is one form of prescription system, which means title to property may be acquired by a person who has no title to it originally after he possesses it and for a period of limitation continuously. Positive prescription is a balanced result by law after comparing private ownership and stability of mutual public living order. Conditioned on a continuous statutory period of legal facts, it leads to the legal result on the contrary to interests of the original owner; therefore, it is a certain restriction on the private ownership in essence.Positive acquisition originates from the ancient Roman law. It was first adopted by French Civil Code in modern times and has been followed by most civil countries and areas, such as Germany, Japan and Chinese Taiwan. Although there is no corresponding system in common law, however, there exist functionally similar legal system, including adverse possession and prescription. PRC General Principles of Civil Law only prescribes negative prescription and does not involve positive prescription. Chinese legal academic experts and legal practitioners have mutually realized the necessity of establishment of positive prescription under Chinese market economy. Nonetheless, how to design such legal system has still been a problem to be solved. By far, there have been two suggested drafts of PRC Property Law, of which Prof. Wang Limin and Prof. Liang Huixing are the chief editors respectively. Both drafts provide the positive prescription. Taken consideration of the current Chinese situation, this thesis is aimed to search and find out a rational system of positive acquisition during the process of comparing the existed positive prescription systems of all countries and combining the aforesaid two suggested drafts of PRC Property Law.As far as the elementary requirements of the positive prescription are concerned, the relevant provision in Roman law differs from those in the modern country laws in some aspects. Summing up all countries' provisions regarding the positive prescription, we can conclude that the elements of positive prescription lie in the following four aspects: a. The possession must be open and notorious; b. The possessor must be in bona fides;c. The object of possession must be the property under the title of others;d. The possession must be continuous for the statutory period.In the author's opinion, bona fides shall not be the elementary requirement and possession of self-owned property will absolutely lead to any change in title of property. Therefore, the elements of positive prescription shall be concluded in the following two aspects: possessing other person's property and continuous possession for the statutory period. The main content is as follows:The prerequisite of positive prescription is the continuous possession by the possessor. In addition, only under the condition of open and notorious possession of others' property, the positive prescription shall be in effect.As far as the object of positive prescription is concerned, the property under no title shall be applied to theory in connection with preemption. Generally, mutually owned property is deemed as the object of positive prescription. Publicly owned property shall not be applied to the positive prescription, because it is owned by the government for the purpose of public services. In addition, publicly used property shall not be applied to the positive prescription before it has been for public purposes. In China, title to land is owned by the state, so state-owned land shall not be the object of positive prescription. Apart from the foregoing, the author takes a positive attitude towards other object of positive prescription, including other state-owned properties.In the author's opinion, whether the possessor has a good faith or not shall not be a prerequisite to positive prescription unless it is under the circumstance of s...