On The Application Of Article 196 Paragraph 2 Of The General Principles Of Civil Law

Article 196(2)of the General Principles of Civil Law lays the foundation for the limitation of action system of the right to restore property in our country.This article makes a study on the legal interpretation of this provision.This article is divided into five parts.The first part mainly discusses the legislative purpose and the meaning of the provision.It holds that in the field of movable property,the right of restitution claim of the real right holder of the non-registered nominal person can also be exempted from limitation of action in exceptional circumstances,based on the consideration of legislative purpose.The right to claim restored property of movable property prohibited and restricted by law should not be restricted by limitation of action.The second part mainly discusses the starting point of limitation of action for restored property claim and the special problems in suspension and extension of limitation of action.It holds that the position of protecting the obligee should be adhered to in connection with the old and new laws.It holds that the limitation of action system should not be retroactive before the entry into force of the General Principles of Civil Law has adverse effects on the restored property claim holder.In the process of claim for limitation of claim for restored property,doubts may arise as to whether it constitutes suspension,interruption of limitation of action and violation of the principle of good faith.Based on the legislative purpose,this paper holds that the defense of limitation of action of the possessor who maliciously conceals possession is not hindered.The third part mainly discusses the legal relationship among the owner,the possessor and the third party after the expiration of the limitation period.After the expiration of the limitation period,the owner still retains his ownership and still enjoys other rights based on ownership.However,due to policy considerations and interests measurement,this paper argues that when the possessor transfers his possession through the way of "right succession" or through the media relationship of possession,the owner can not claim the right to restore the property without the limitation of action to the new possessor.The owner’s right to claim for the return of usufruct,the claim for unjust enrichment,the claim for damages and the right to remove the obstacles to eliminating danger are also constrained by the expiration ofthe limitation of action for the claim for the return of restored property.However,the rights of all persons to third parties are not limited.The fourth part elaborates two special problems in the application of limitation of action for restored property claim.Firstly,in terms of the relationship between Article196(2)of the General Principles of Civil Law and article 107 of the Property Law,since the former regulates the occurrence of the right to plead for limitation of action and the latter regulates the acquisition of property rights,this paper holds that there is no conflict between the two.Secondly,international conventions,especially those concerning the return of cultural relics,play a role in replacing domestic legislation in international restitution proceedings.However,in the case of the return of non-cultural relics,the limitation of action system of the right to restore property is still facing the risk of being regarded as a violation of public order by other countries,and among non-contracting countries,this system has hindered the recovery of transnational cultural relics.