On The Estoppel By Waiver

The system of estoppel by waiver means that,under the circumstances,the obligee doesn't exercise his right during a certain period of time causing obligor to produce legitimate reliance that obligee will not exercise his right or want obligor to fulfill his obligation,the obligee cannot exercise his right because of the principle of good faith.The system of estoppel by waiver not only embodies the principle of good faith and the principle of rights abuse prohibition but also is the third prescription system which is independent as well as complementary to extinctive prescription and cut-off period.The system of estoppel by waiver,derived from Germany,was the result of judge-made law.It had adopted by Japan and Taiwan in the form of precedent.The current researches have different viewpoints on whether or not the ITALIAN civil code stipulated the system of estoppel by waiver.Like most civil law countries,there is no special legislation about the system of estoppel by waiver in China,and it is also hardly applied in judicial practice,obligor can only appeal to the prescription system rules for recovery when obligee doesn't exercise his right during a certain period of time.Owing to the current incomplete prescription system rules in China,the protection of the obligor is not comprehensive,and it is not enough to solve the problem and confusion of the prescription system under the existing legal framework.Therefore,the backwardness of the law is highlighted and the establishment of the system of estoppel by waiver becomes very necessary in China.Mainland China can refer to judicial practices of the system of estoppel by waiver in Germany,Japan,and Taiwan.After inducing and analyzing the system of estoppel by waiver,it can be independently stipulated as a provision included in the general principles of civil law and the system of prescription of chapters and put behind the limitation of action and cut-off period to improve the prescription system rules in mainland China.