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Prescription system of civil law and the law applicable to comparative

Author: GuZuoZuo
Tutor: ChenLi
School: Fudan University
Course: Legal
Keywords: Prescription Usucapion Negative Prescription Application of Law
CLC: D923
Type: Master's thesis
Year: 2009
Downloads: 153
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Abstract

With the current world economic exchanges become more frequent, foreign-related civil and commercial cases are also increasing. When dealing with foreign-related civil and commercial cases, we often encounter a variety of conflict of laws including the conflict of laws relating prescription. Different application of laws could lead directly to the different outcome of the trial, so the comparative study of the Prescription system and its application of law is of important practical significance. This article is written from the perspective of the Private International Law, and the research methods of the Comparative Law are adopted. Through comparison and analysis between various legislative systems of Usucapion and Negative Prescription in different countries, this article suggests the solutions to the law conflicts of Prescription and thus expresses individual views on aspects of the legislation of Prescription and the it’s conflicts of law.This article has five chapters. Chapter One is a brief introduction of Prescription. It gives a sketch of Usucapion and Negative Prescription through the origin and history of Prescription, the development of Prescription, the effect of Prescription and the legislative model of Prescription.Chapter Two is conflict of laws of Prescription. This chapter elaborates on the legislation of Prescription system of some major countries, including France, Germany, Japan, the United Kingdom and the United States, using the study method of Comparative Law. Civil Law countries have basically received the concept of Usucapion and Negative Prescription in Roman Law. Common Law Countries adopt the concept of Prescription, Adverse Possession and Limitation of Action. Based on the comparison of Prescription legislative system in the aforesaid countries, the author concluded the main similarities and differences of Prescription.Chapter Three is the Characterisation of Prescription. This chapter focuses on the Characterisation of Prescription in Civil Law and Common Law. Usucapion is characterized as substantive law in most countries. Negative Prescription is characterized as substantive law in Civil Law countries. While it is traditionally characterized as procedural law in Common Law countries. But more and more Common Law countries have shifted its Characterisation of Negative Prescription as substantive law problem.Chapter Four is based on the third chapter. In this chapter, the auther gives some resolution to solve the Law Conflict of Prescription. The applicable law to the conflict of Usucapion is ’lex rei sitae’. The conflict of Negative Prescription is more complicated. Lex fori, uniform rules of substantive law and the uniform conflict rules of status of limitations are the ways to solve the problem.Finally Chapter Five focuses on our country. In this chapter, the author firstly discusses the current status of China’s legislation and then gives personal opinion for the China’s legislation of Usucapion as welll as the law application of Prescription.

Prescription system of civil law and the law applicable to comparative

Abstract

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