取得時效制度研究－－兼評我國民法典應否建立取得時效制度

A Study on the Positive Prescription Institution

取得時效制度的產生與存在是有其歷史原因的，經過長期的發展，取得時效逐漸成為私法上的一項重要制度。作為一種物權取得方式，取得時效的構成因各國立法政策之不同而有區別，檢討其要件，一般認為有占有他人之物事實之存在、發定期間之經過，至於善意與否，則純屬立法政策問題，而非制度邏輯之結構要求。分析其客體範圍，取得時效主要適用於動產、不動產之所有權及其他產權，但在各國立法例上，取得時效的適用受到諸多的限制，其範圍日趨狹窄。對於我國應否建立取得時效制度，學界一直存有爭論，就其要義，實質在於取得時效制度在我國是否有其適用餘地。通過分析善意占有及惡意占有情形下取得時效制度之適用可能，可以發現在善意取得、登記制度、占有制度等民法所有權取得及相關制度的夾縫中，取得時效已無生存空間，加之其功能可為訴訟時效所取代，且無理論上之存在基礎，故民法典中當然不必建立取得時效制度。

The emergence and existence of acquisitive prescription system has historical reasons. After a long-period development, this system has gradually become an important system under the private law. As a way to obtain the real right, the composition of acquisitive prescription differs due to the variance of legislative policies in different countries. Its constitutive requirements, subject to a review, generally consist of possession of the properties belonging to others and expiry of the legally prescribed period. With regard to whether bona fides shall be one of the requirements or not, it is an issue of legislative policy not the issue of system logic. In analyzing its scope of object, acquisitive prescription is primarily applicable to the ownership of personal property, real estate and other property rights. However, in observing the legislative models in every country, the application of acquisitive prescription is subject to many restrictions and the scope has been gradually narrowed down. In regard to whether China should establish this system, controversial views exist among academics. The kernel of the controversy is whether there is room to apply this system in China. Through an analysis of the possibilities of applying bona fide possession and mala fide possession, registration system, possession system and acquisition of other proprietorship under the civil law as well as relevant systems, no room has been left for acquisitive prescription system. What's more, the functions of acquisitive prescription system may be played by the system of limitation of actions, and there is no theoretical basis for its existence either. Hence, it is unnecessary to provide the acquisitive prescription system under the Code of Civil Law in China.