A Study Of The Applicable Law Of Statute Of Limitations

The number of multinational cases increases dramatically as business interactions between states escalate.There are abundant studies about conflict of laws in the field of civil legal relationships in China.A study of the applicable law of statute of limitations is of great value to the legal practice.This thesis was written on the basis of a review of theories and a comparative study of regulations from western and European countries.It aims at giving some comments on the existing applicable law provisions of statute of limitations in mainland China.This thesis is composed of four chapters.Chapter one introduces the origins of statute of limitations.The earliest statute of limitations came from the ancient Roman law and it was inherited and developed by countries around the world.The statutes of limitations in continental civil law and Anglo-American law share the same origins.China has its own provisions in ancient but they are not common in civil relations.The statute of limitations provisions that originated from western countries replaced them in Qing Dynasty.After the PRC was established,its statutes of limitations were based upon imitations of Soviet laws,which are still enforced today.Chapter two analyzes the difference between statutes of limitations in various countries.The differences exist in the aspects of characterization, notions,object,effect,period,extension,suspension,etc.The key question lies in the recognition of substance or procedure issue.First,the importance of this characterization is analyzed.Secondly,the difference between substance and procedure are focused.Lastly,statute of limitations is characterized as substance or procedure due to the weight on the functions. The finding of other regulations is that the civil law states share the same view of objects with PRC and a few civil relations provisions are different from the Anglo-American states.That lapse of time concludes a defense for the respondent is accepted by majority states.The length of period is different from country to country and the regulation of suspension and extension are vastly different too.Chapter three compares the mode of laws in states.Most civil law countries apply the applicable law of the issue while the Anglo-American countries apply the law of the forum.However,recently the latter are changing their attitudes.Britain expressly state that it takes the statute of limitations as substantive law and seventeen states in the U.S.declare to abandon the traditional characterization mode.In the reform,legislature also concerns the protection of residents' rights and the justice of remedy. The international treaties in several fields of civil relations have the same choice as the civil law countries.However,treaties concerning the maritime laws support the lex fori view or apply the law of the country of the flying flag.The unified conflict of laws convention has a low acceptance among states.Chapter five focuses on the legal practice in PRC.Statute of limitations should be regarded as substance and there are three reasons to do so.Meanwhile the applicable law of statute of limitations should be provided in the Civil Law Code in the future.In a comparison between lex fori and substantive law way,the conclusion is that the latter one is best fit for PRC.Public policy can be used as a reason to decline application of alien law under three special circumstances.Extension of period should take effect if a mutual consent is concluded between parties.