| 释义 |
prescription
n. 1. (in land law) The acquisition for the benefit of one’s own land (the dominant tenement) of an easement or à prendre">profit à prendre over another’s land (the servient tenement) by uninterrupted use over a long period. A person claiming a right by prescription must show that his use did not have the servient owner’s permission and was not kept secret or exercised by force. Under the Prescription Act 1832 most easements may be acquired by prescription over 20 years, the period being extended when the servient owner is under a disability (e.g. a child or person of unsound mind), although 40 years’ use establishes an absolute and indefeasible right. The periods are 30 and 60 years in the case of profits. An absolute easement of light is acquired after 20 years’ use. Rights can also be acquired at common law under the doctrine of lost modern grant, under which the court deems a grant to have been made if there has been 20 years’ use of the right. Common law prescription requires proof of continuous use since time immemorial, i.e. since 1189, and is therefore practically obsolete. 2. (in international law) The acquisition of title to territory through an uncontested exercise of sovereignty over an extended period of time. Prescription presupposes a prior sovereign authority whose control and administration over the territory in question has lapsed through (1) failure to occupy, (2) failure to administer, (3) abandonment or neglect, (4) a wrongful original claim, or (5) failure to contest a new claim. In the Island of Palmas Arbitration (1928) 2 RIAA 829 the tribunal accepted the principle that “the actual continuous and peaceful display of state functions is in case of dispute the sound and natural criterion of territorial sovereignty”, and found that the evidence demonstrated that the Netherlands had been exercising undisputed sovereignty over the island for more than 200 years. |