诉讼时效法律效力探析——兼评我国《民法通则》第135条之规定

Analysis on the legal aftereffect of lawsuit for defense——Comment on the regulation of article 135 of "General Rules of Civil Law"

分析了日本、法国、德国三国法典对诉讼时效法律效力的规定,认为在诉讼时效法律效力上抗辩权发生说最为合理,宜作为立法模式之选择,且学者对《民法通则》第135条普遍采“胜诉权”消灭说是不当的,应重新进行解读。依抗辩权发生说,人民法院不能主动审查诉讼时效问题,义务人在诉讼时效完成后同意履行则表明义务人放弃了时效抗辩权,权利人有权要求义务人履行义务。

By analysing the regulations in the civil code of France, Japan and Germany regarding the legal aftereffect of prosecutions, it is maintained that the extension of the right to defend is the most reasonable of the three codes, which should be adopted as the legislative mode. It is held that some scholars＇ interpretation of ending the right of prosecution after a lawsuit duration in article 135 of ＂General Rules of Civil Law＂ is not applicable in lawful practices, which should be re-interpreted. In accordance with the extension of the right to defend, it is considered that people＇ s court should not disregard the aftereffect of prosecutions. When the obligor agrees to fulfil obligations after the effecting limitation of prosecutions, it is regarded that the obligor give up the right to defend prosecutions, and that the obligee possesses the right to require the obligor to fulfil the obligation.