Limitation Of Actions A Number Of Issues For Study

Limitation of action has a direct relationship with whether the Civil Right will beprotected or not. The relevant theory and practice are very rich. However, it isover-principled for the recent legislation to the limitation of action system. Socontroversies continue to exist in trial and theory research. Therefore, in the thesis, theauthor carries on the analysis about the basic question and the academic viewpoint ofthe limitation of action from the value choice of the legislation, namely therelationship of efficiency and fair and the protection of trade security and from theelementary theories of civil law with the problems in trial practice, thus establishesthe limitation of action system and the judgment standard which is suitable for bothcivil law elementary theory and national condition and makes the limitation of actionsystem perfect and sets up a legal basis for judicial practice.The thesis includes five parts. Firstly, the author introduces the concept, the goaland the object of the limitation of action, mainly introduces whether the right of claimof real right is suitable for limitation of action.Secondly, the setting of limitation of action period considerably reflects thelegislation balance of two kinds of orders and benefits. After analysis about thephenomenon in every country, the author points out that there are shortcomings aboutthe period setting of limitation of action in General Provision of the Civil Law, thenputs forward the proposal.Thirdly, the author calculates the limitation period, mainly analyzes some kindsof calculation of the limitation of action period that exist in practice and cause bigcontroversy. First of all the author analyzes the suitable basis of the limitation ofaction of the debt-paying by stages from the divisibility of the suitable object (requestright) of the limitation of action and discuss the legislative suitability of the limitationof action of the debt-paying by stages, and sets up a devisable standard and providereference for the legislative and judicial practice. Then from the comparison "thetheory of right exercising" and "the theory of right advocating", the author elaboratescalculation the limitation of action of the deadline-undecided Creditor's rights and therationality of the "the theory of right advocating" and analyzes five cases according topractice. Finally, the author deals with the calculating the limitation of action of invalid contract from two aspects: the right of retuming the property or the requestright of the loss compensation caused by the invalid contract and the invalid contractconfirmation.Fourthly, the author points out that creditor ask debtor to fulfill the voluntaryrequest without taking the debtor's receiving as necessity after analyzing three reasonsfor the stopping of limitation of action combining with the practice. The author alsopoints out that the way the creditor propose request is so various that it solves theproblems cause by mail receiving after dunning, finance organ receives the debtprincipal and interest from the debtor account buckle and prosecution. At the sametime the author analyzes the concept of stopping and incompletion of limitation ofaction and their similarity and difference. The author points out that there is space inChina for the incompletion of limitation of action.Fifthly, the power of contradiction to principle should be taken to the law resultwhen the time of the limitation of action is over. According to the theory the authoranalyzes two controversial issues. One is giving up the limitation of action benefit, theother is whether the court makes judgment by Citing initiatively limitation of actionor not.