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The History and Development of Praescriptio Extinctiva

Author: LiQiuZuo
Tutor: HeQinHua
School: East China University of Politics and Law
Course: Legal History
Keywords: Extinctive prescription Limitation of actions The appeal period
CLC: D913
Type: PhD thesis
Year: 2006
Downloads: 794
Quote: 6
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Abstract


This doctor’s paper contains three parts: introduction, main body and conclusion. Main body has 5 chapters. Using historical and comparative method, the author systemically discourses the praescriptio extinctiva system in a vertical and lateral way. Including an appendix the whole paper has about 200000 words.IntroductionIn this part, the author gives a brief introduction about (1) the background and significance of selected title; (2) the research conditions and literature statements; (3) the methods of research; (4) the style arrangement.Main bodyPart one, the origination and formation of praescriptio extinctiva. Since praescriptio extinctiva derives from German word "Verjahrung", from Russian word "исковАядАвность" and from English word "Limitation of actions", the author analyzes the Roman law tradition of prescription system and discusses the formation and purpose of praescriptio extinctiva in a vertically historical way which reveals the headstream of praescriptio extinctiva since Roman law. Besides, by comparing similarities and differences among praescriptio extinctiva, period of immunity and other similar prescription, the author further makes clear the intension and extension of praescriptio extinctiva.Part two, the comparison among different legal Genealogies. Using the differences of derivation of praescriptio extinctiva as a clue and based on lateral comparison, the author discourses the system and characteristic of praescriptio extinctiva of the Continental Legal Genealogy, limitation of actions of the Common Legal Genealogy andисковАядАвностьof the Socialistic Legal Genealogy. At the same time, the author briefly introduces the praescriptio extinctiva Families in France, Germany and Japan, which are main countries of the Continental Legal Genealogy.Part three, the development and reformation of praescriptio extinctiva. The author discusses the characteristic of development and reformation of praescriptio extinctiva in the main countries of the world (France, Germany, Japan, Russia and China) since modern times and concludes the global development trend of it.Part four, the system and innovation of praescriptio extinctiva. As the structure of "claim-counterplea" which rooted in Roman law a clue, the author systemically discusses the "right of claim-counterpleading right" system as the premise and foundation of praescriptio extinctiva of modern civil law. Meanwhile, based on the soul of modern civil law-autonomy of will, and the system of autonomy-enforcement, the basic content of praescriptio extinctiva is constructed. Moreover, from the view of time limitation of right, the author does innovative research by studying the relationship between praescriptio extinctiva and prescription, negative.Part five, advancing theory research on praescriptio extinctiva (limitation of actions) of the Chinese civil law. The author does some useful research on these aspects, such as the derivation, the scope of application, the period arrangement, the counting point, the object and the effect of praescriptio extinctiva of the China civil law. In addition, the author gives some good suggestion of our legislation concerned that need to be perfected when making "Civil Law of the People’s Republic of China (Draft)".ConclusionPart one, as regards the purposes of praescriptio extinctiva, the author has such conclusions: (1) the social effect of resolving lawsuit; (2)the essentiality of exerting the right;(3) the special functions of the peace of the law; (4) the effective value of the efficiency of lawsuit. As to the system and characteristics of praescriptio extinctiva, the author thinks that the right of claim should be the object of praescriptio extinctiva. Meanwhile, the length and the counting method should be decided by the degree of the necessity for protecting the right.Part two, with regard to the development trend of praescriptio extinctiva, the author has such conclusions: (1) praescriptio extinctiva will be shortened;(2) praescriptio extinctiva will be regulated by autonomy law instead of compulsory law;(3)prescription system will be unified;(4) prescription will be more diversified and (5) praescriptio extinctiva will change from public relief to private relief.Part three, as to the reform of praescriptio extinctiva of the China civil law, the author thinks that the outstanding culture of law of the Continental Legal Genealogy should be absorbed, meanwhile, the good culture of law of socialistic Legal Genealogy should be developed and the useless culture of socialistic Legal Genealogy should be discarded. At the same time, according to the trend of praescriptio extinctive in the world, the system of praescriptio extinctiva of China civil law should be reformed. In addition, we should use the beneficial way from the limitation of actions of the Common Legal Genealogy for reference.Appendix This part adds some codes of other countries that are not translated yet, in order to supply resources to legislation and research. "Law of Limitation of Actions of 1980" of Britain, "Law of Limitation of Actions of 1963" of India, "European Contract Law" (draft) (extracted), "Principals of the European Contract Law" (extracted) and "Modernization Law of Obligation" of Germany (the section of praescriptio extinctiva), "Limitation Period in the International Sale of Goods" and its revised protocol, "Principles of International Commercial Contracts of 2004" made by UNIDROIT-The International Institute for the Unification of Private Law(extracted).

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