诉讼时效的若干程序法问题探析

A Study on Procedure Problems of Limitation of Action

诉讼时效既是一个实体法问题,又是一个程序法问题。在我国,存在诉讼时效审查中的职权主义,证明责任的分配不明确等问题,使诉讼时效的立法目的无法实现,有时甚至适得其反。因此,随着我国民事审判制度改革的深入,确立诉讼时效审查时的法官不自动援引原则,在证明责任中确立被告承担诉讼时效完成的主张责任的基础上,同时确立原告承担诉讼时效未完成的证明责任,这样,既符合诉讼时效的立法目的,又有利于我国司法公正。

Limitation of action belongs to not only substantiality of law but also procedure of law. It exists problems in our country, such as authority of ism in censor of justice and ambiguity in burden of persuation. The purpose of limitation's legislation has not been realized by these causes, and sometimes been on the contrary. So, by the deep reformation of civil action, we must establish the law principle of no invoking by judge self-motion. Also we must establish the rules that the accused should be charge with the liability of the claim which the limitation had been finished, and then, the plaintiff should be charge with the burden of persuation which the limitation had not been finished. Thus not only accord with the legislation purpose of limitation of action, but also benefit to fairness of justice.