1.  Mainland China has a shorter statutory limitation period
Pursuant to the current framework under s.135 of the “General Principles of the Civil Law of the People’s Republic of China”, the limitation period of commencing a civil litigation is 2 years. The latest framework to be implemented under s.188 under the “General Provisions of the Civil Law of the People’s Republic of China”, the limitation period has been extended from 2 years to 3 years, with the clock running from the moment “when the Plaintiff has actual or deemed knowledge that his/her rights has been infringed.” According to experts in this area, “General Provision of the Civil Law of the PRC” is essentially the first chapter of Civil Code of the PRC, which marks the official start of the era with a unified Civil Code. Regarding the issue of limitation periods, this is a major improvement.

Due to the fact that limitation periods in Mainland China are statutorily prescribed, parties are not able to extend or shorten the limitation period by agreement. Many of the cases are therefore unable to be commenced in Court even though there may be special reasons behind. How about Hong Kong? What are the features of the limitation periods in Hong Kong under Common Law?


2.  Longer statutory limitation periods in Hong Kong
A.  Limitation period for commercial contract and tort claims

Section 4 of the Limitation Ordinance is closely related to daily business in Hong Kong.  The limitation period for commencing any claim on breach of contract or tortious rights is 6 years. Comparing to Mainland China, it is 3 years longer even after the extension. Mandatory enforcement of guarantee, mandatory enforcement of judgment, mariners’ remuneration recovery and repayment of debts are all included in this category and the action should be commenced within 6 years.

B.  Limitation period for personal injury

It is worth mentioning that there is a specific provision under s.27(4) of the Limitation Ordinance stating that the limitation period for personal injury is 3 years, starting from either the day on which the injury occurred, or the day on which the Plaintiff has actual or deemed knowledge of the fact that the Defendant has caused the injury as well as the seriousness of the injury, depending on which one is later. Compared to mainland China, Hong Kong has an extra 2 years for commencing such action.

In addition, according to section 16(1) of the “Employee’s Compensation Ordinance”, Plaintiff must commence the proceedings 2 years from the day of accident occurred and caused the injury. If a judgment has been obtained, parties are required to execute the judgment within 12 years. On a side note, the longest limitation period in Hong Kong for any litigation is land expropriation by the government, which is 60 years.

C.  Extension of statutory limitation

In s.139 under the “General Principles of the Civil Law of the PRC”, the clock for the purpose of calculating the limitation period stops where the Plaintiff is a minor and do not have any guardian ad litem, or where the guardian ad litem lost his/her capacity. S.22 of “Limitation Ordinance” in Hong Kong specifies several situations where the limitation period of the proceeding may be extended:

I.  If the Plaintiff has no capacity (including minor and mentally disabled person), the proceedings can be commenced in 6 years’ time from the time where the Plaintiff ceased to have no capacity, or from the time such person passed away, with the earlier date being applicable. This would be effective even if the limitation period has expired;
II. If the Plaintiff has been mentally incapacitated for a certain period (Delirium or being diagnosed with mental illness);
III.  If the proceedings are related to offences of dishonesty, then the limitation period will start when the Plaintiff recovers from mental illness (if any) or realizes such behavior of dishonesty.

If a minor (10 years old) suffers personal injury, he/she will have additional 6 years after his coming of age (18 years old) to bring any action if his/her guardian or parents did not handle the case on behalf. This grants a greater protection to the rights and assets of the minor and the mentally incapacitated person.

D.  The Court has the power to override the limitation period

In accordance with s.30 of “Limitation Ordinance”, the court has the absolute power to override the limitation period if it appears that it would be equitable to allow an action to proceed having regard to the circumstances. The court may make a direction specifying that those provisions would not apply to the action. In common law, this may be an illustration of the principle of “the law is above all” and explains how the interpretation power of judges takes priority over that of the legislation power of the legislature.

To conclude, the limitation period for breach of commercial contract is 6 years, that for personal injury is 3 years and that for injury suffered in the course of employment is 2 years. Although these limitations are statutory, the court will also take into account of the actual circumstances when deciding whether to allow an extension. Some may even be able to extend in the name of equity and by special directions by the court. How is the case for US? (taking New York as an example)


3.  US’s limitation period is negotiable between the parties

As a practicing lawyer in Hong Kong, the author has revised the materials of the New York Bar exam with JD classmates in Hong Kong who intended to sit for the same. Several differences between the limitation period regimes for Hong Kong and New York could be observed. New York has the Statute of limitations and Civil Practice Law and rules to amend the limitation period.

A.  Limitation period for contract breaches

One area which may be closely related to our lives is the performance of contract. For contracts related to real estates, architecture and employment, limitation period for proceedings is 6 years; that for breaches of contract is also 6 years (excluding sales of goods contract). However, it is worth noting that there is a different limitation period for breach of sales of goods contracts, for example, the limitation period for breaches of warranty therein is 4 years.

B.  Limitation period for tortious claims

Regarding tortious claims in Hong Kong, for negligence and strict product liability, the statutory limitation period is 3 years. This is however different for common assault, and assault and battery which only have a limitation period of 1 year, similar to China. For privacy infringement, defamation, illegal imprisonment and illegal arrest, they also have a limitation period of 1 year. For nullifying marriage, there is a limitation period of 3 years. Another area is medical malpractice with a limitation period of 2.5 years. But the limitation practice for such proceedings could be extended until no more than 10 years if the Plaintiff is a minor.

For money judgment and unpaid child maintenance or alimony actions after 1987, the longest limitation period is 20 years. Civil compensations incidental to criminal matters have a 7 years statutory limitation.

Of course, if you suspect the scores of your bar examination to be incorrect, you may also make use of CPLR78 to challenge the administrative decision. The limitation period for such action is 4 months.

C.  Limitation period may be shortened

A special feature about New York State’s statutory limitation regime is that it can be shortened by agreement. As long as the parties 1) clearly agree in writing, and 2) the shortened period is reasonable, no mutual signature or consideration is required. (CLPR20: if it is conspicuously contained in writing and shortened to a reasonable period. No signature and no consideration is required). Normally, the disadvantaged party would try to shorten the limitation period, but this must be reasonable. For contracts of construction projects, the common understanding is that shortening the limitation period to 90 days is reasonable. However, it should be noted that pursuant to the United States Uniform Commercial Code (UCC), it is stipulated that the statutory limitation for actions in relation to sales of goods contract cannot be in any case less than 1 year.

D.  Limitation period may be extended

It is possible to both shorten and extend the New York State’s statutory limitation. This can be agreed when the parties enter into agreement, but this can only be done through a signed writing executed after the Plaintiff’s cause of action has accrued. The lengthening of the limitation period should also not violate any public policy, otherwise it will be deemed invalid and cannot be implemented.

Besides agreed extensions of the limitation period, New York State also has statutory extensions. If the Defendant passes away, the limitation period for the Plaintiff will be automatically extended for 18 months. Where the Plaintiff passes away, the limitation period may only be extended for 1 year provided that the original limitation would have lasted for only 1 year from the date of death for the extension. In addition, the law also stipulates that the time spent during the military service by the Plaintiff or the Defendant should not be counted towards the limitation period. As for the statutory limitation period for minors who suffer injury, the period would normally start to count when he comes of age (18 years old), which is similar to Hong Kong.

In the New York Bar Examination, a common topic is that: A accidentally hit another car when driving home. The minor B age 1 who is in the car suffers from injury due to the negligence of A. B, once again suffers from injury due to medical malpractice by Doctor C. What is the limitation period for B to bring action against A and C?

For A’s negligence, the limitation period for that is 3 years. Thus, B could sue A until the age of 21, 3 years after adult age. For medical malpractice, the limitation period is 10 years. Therefore, B must bring an action against Doctor C before the age of 11.

For normal breaches of contract, the limitation period for that in New York State is 6 years. This however is different for sales of goods, tortious negligence and battery, which are 4 years, 3 years and 1 year respectively. Although the relevant limitation periods are stipulated in the law, but they could be lengthened or shortened upon prior agreements by both parties.

To sum up, the limitation period in Mainland China is wholly statutory and is relatively short. The parties could not agree to lengthen or shorten the period and there is less protection for civil rights. For both Hong Kong and US, although the limitation period regime is also statutory, it is more flexible, which differs greatly with the system in Mainland China. The common law system in US and Hong Kong grants a longer limitation period, normally twice as long as China’s. It can be extended and shortened by agreement (for instance, New York). Under special circumstances, Hong Kong courts have the power to override the statutory limitation period for fairness.

So, which country has a longer limitation period? Is it US, China or Hong Kong? Which country has greater protection for citizen’s personal rights and property rights? This is a question left to you to decide.

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