Research On System Of Exclusion

Exclusion period refers to the duration of the rights stipulated by law or agreed upon by the parties.After this period expires,the rights entity is eliminated.Article 199 of the "General Principles of Civil Law" is the first time that the current legislation has made general provisions for the application of the period of elimination.Although the academic term of "removal period" has not yet been adopted,it has fundamentally improved the system of time regulation,but the academic circles The general theory is more uniform in its understanding of the eradication period.This article redefines the eradication period system from the core perspective of interest analysis.The diversity of interest protection of this system is focused on the protection of social public interests.This standard is used to distinguish it from other civil rights time systems,and on this basis The redefinition of the definition,object,legal effect,suspension,interruption,or extension of the period of exclusion will establish the institutional characteristics under the unified standard.At the same time,due to the lack of legislation in the judicial practice,some specific time is ambiguous,such as the duration of guarantee period,the duration of creditor claims after the dissolution of an individual proprietorship enterprise,the “20-year period”,and the term of exercise of the right to request,the term of protection of the copyright,etc.This article clarifies the nature of the above-mentioned specific period and provides amendment opinions that meet the interests of the system at the legislative level.The main content of this article is as follows:Part one: Excluded from the current legislative and institutional values.Article 199 of the "General Principles of Civil Law" is the first time that the current legislation has made a principled norm for the system during the eradication period;except that the period system not only protects the interests of the obligor,but also eliminates the unstable state of the legal relationship,and maintains the legal order.The purpose focuses on the protection of social public interests;the system of statute of limitations is biased towards the protection of personal interests;and the system of invalidation of rights is based on the principle of good faith and prohibits the abuse of rights and fills the gap in the protection of interests.The author also proposed amendments to the legislation of the system during the eradication period,although the promulgation of Article 199 is already a major step forward in the current legislation,embodying the positive attitude of the exclusion period itself as a period ofinstitutional importance and legislative policy,but the author It is believed that the future should be more clearly defined and unified rules and regulations as a special chapter.Part two: Exclusion period object scope-Formation rights and other rights.Exclusion period applies right to formation,but not all formation rights apply to the exclusion period;other rights are applicable to the period of exclusion,as long as they conform to the characteristics of “need to be exercised by others and may result in an unfavorable state of the obligor”.A conclusion is based on the measurement of social public interest.Similarly,the right of formation with corresponding characteristics is the object of the exclusion period.Part three: Exclusion period starts,stops,breaks and extends.The starting point of the expulsion period is when the right occurs,and the expulsion period is not an absolute period of indefiniteness,but can be suspended under certain circumstances.And the author proposes that the legislation should supplement the suspension of the exclusion period,that is,the suspension can occur at any time before the expiry of the exclusion period,and the termination of the case is the termination of the judicial process such as force majeure,litigation or arbitration.Part four: The legal effect of the exclusion period-the elimination of rights.This section revolves around the defined analysis of interests and combines the system of statute of limitations and the system of invalidation of rights,focusing on the legal effects of the period of elimination,including the legal effects of the elimination of the entity of rights during the period of elimination;The debtor obtains the defense right;based on the principle of good faith,the entity's rights are eliminated during the period of power loss.Part five: The definition of the nature of several specific periods in the current legislation.When China's laws regulate specific time norms,they tend to apply to specific situations and define their nature more ambiguous.At the same time,in terms of interest protection,there are certain overlaps between the exclusion period system,the statute of limitations system,and the right invalidation system.There are disputes over the characterization of certain time norms in the practice community.This part of the content is based on the analysis of the interests of the system during the period of exclusion and other periods as well as the legislative policy in the new period under the “General Principles of Civil Law” and concludes that the period of guarantee is the period of elimination and the right to claim for compensation after the dissolution of the sole proprietorship enterprise.The duration of the extinction period is the expulsion period,the “20-year period” is the exclusion period,and theexpulsion period of the occupant's right to request the restoration is the exclusion period;the duration of the offset right,the contract period of the arable land,the protection period of the copyright,etc.It is not a period of exclusion,but a duration of simple rights.