ReadThe Supreme Court chief editor Xi Xiaoming"<A civil case litigation judicial interpretation>The understanding and Application"(on)

Zhu Zufei: [to think the limitation of action is a small problem, usually also do not pay attention to. Through this book reading, in fact, this one is also have no bottom]

 1, the prosecution is a fixed term, and the period of limitation of action for a variable period. Secondly, during the prosecution, the court shall not accept the. The period of limitation of action already, still can sue, may win.

In addition to the object period for the formation of the right, and the object of limitation of action for right of claim. Secondly, the scheduled period expires, the effect is substantial rights destroy. But the statute of limitations has expired, substantive rights still.

Legal and compulsory litigation prescription based on the parties shall not, during the change of limitation of action free agreement.

The difference between the limitation of actions, and not complete litigation limitation suspension, not starting system is:

First, the limitation of action for discontinuation is subjective by; the latter three reasons for objective reasons.

Second, the limitation of actions, the period of limitation of action re calculated; and the limitation of action is not known, refers to the limitation of action shall not disappear after the origin, the limitation of action begins to run; and in the case of litigation limitation suspension, objective causes disappear, the period of limitation of action to continue the calculation; not completed in litigation cases, do not complete the period of limitation of action in the objective reasons and objective reasons during the duration of the extinction within the statutory time.

2.Article 1The parties may claim to raise a defense against limitation of action, but the following claims raise a defense against limitation of action, the people's court shall not support:

(a) to pay the deposit and interest claim;

(two) payment bonds, financial bonds issued to non specified objects and corporate bonds claim;

(three) the payment of claims based on the relationship between capital investment;

(four) other law does not apply to claims the prescription of action.

The right to request the deposits of the realization of the public interest in survival, if the provisions of cash deposit interest claims for the limitation of action, will endanger the survival of the people right, the right of claim should not be subject to the prescription of action.

In judicial practice, according to a certain subject, directional issuance of corporate bonds, because it does not involve the issue of protection of social public interests, should apply the limitation of action.

If the provisions of capital the right to request the prescription of action, it goes against the company's capital adequacy rules, is not conducive to the development of the company, is not conducive to the full protection of other shareholders and creditors, so it is not suitable for lawsuit period.

Right of claim is not obligatory claim does not have the property request right content, but the absolute right to survive, as the civil subject personality, interests and the existence of ethical issues, it is not suitable for the limitation of action. Does not have the property interests of the content of claim of the personality right is mainly: the cessation of the infringement, rehabilitation of reputation, apology, eliminate the impact of claim right.

Based on the status of right infringement of alimony, maintenance fees and the cessation of the infringement, elimination of influence, make an apology request right, due to the consideration on the protection of public order and good customs and the right to life, not to apply the provisions of limitation of action. But if the adoptees had not have been raising condition, still require the previous support, it should apply the limitation of action, never during the limitation of action have been raising conditions date.

The provisions of intellectual property rights have been infringed the cessation of the infringement, elimination of influence, make an apology request right not to apply the limitation of action based on.

3.Article secondThe parties in violation of the law, the prescribed time, extend or shorten the limitation of action to abandon the interests in the limitation of action, the people's court shall not recognize.

Can not be extended and shortened the limitation of action, but can be excluded? The legislative purpose of litigation prescription system in order to safeguard the social public interests, have mandatory, not the parties agreed to allow exclusion. Moreover, weightlifting and clear light, since the period shorten or lengthen the limitation of action agreed upon by the parties agreed to have been invalid, then ruled out more.

In addition, the parties agree to exclude the interruption of prescription, the reasons for suspension for violation of law, also belong to the qualitative behavior, shall be deemed null and void.

4.Article thirdIf a party fails to raise a defense against limitation of action, the people's court shall not be subject to limitation of action and take the initiative to apply for the interpretation of the limitation of actions.

According to the theory of the civil procedure law, absent as absent party acknowledges that opposite party related facts and claims, may make a judgment by default. Because of this, they exercise the counterpleaing right of limitation of action, in the default case, should be regarded as absent party not to right of defense, the court should not require active prescription of action. But it should be noted that, although the parties did not appear in court or not present in court defense against the limitation of action in court before, but if the submission of a written reply of raise a defense against limitation of action, should be that raise a defense against limitation of action.

Of course One's whereabouts is a mystery. notice served on the case, the court should not take the initiative to apply the provisions of limitation of action.

5.Article fourthIf a party fails to raise a defense against limitation of action in the first instance, put in during the trial of second instance, the people's court shall not support, but it is based on new evidence to prove that except the other party's claim over the period of limitation of action of.

    If a party fails to raise a defense against limitation of action in accordance with the provisions of the preceding paragraph, on the grounds for retrial or raises a defense to the expiration of the period of limitation of action, the people's court shall not support.

Attention should be paid to support the obligor introduced only in the second period of limitation of action right of defense situation is compulsory on second new evidence enough to prove its litigious right of defense against the limitation. But in the trial stage, even if there is new evidence have demur, the limitation of action and to apply for a retrial, the people's court does not support.

6.Article fifthThe parties agreed to the phased implementation of the same debt, the period of limitation of action a discharge from the last expiry date.

The provisions of this reason, the same debt has the integrity, the period of limitation of action should be the overall debt expiration date.

Litigation prescription starting point but pay regular payment of debt claim of each period of debt, because the more controversial, has not formed the opinion, there is no provisions.

The difference between regular payment and installment debt is debt:

The regular payment of debt, mainly is to continue to contract in the performance of the contract for a regular occurrence of debt, such as rent, wages, utilities, interest and other regular payment of debt.

Installment debt, a debt occurred, the parties in accordance with the agreed time phased implementation, its debt in the contract is generated, not in the performance of the contract to produce. Where the seller and the buyer agreed in the contract payment by installment, installment delivery, owing on the loan contract.

The parties to the phased implementation of the debt contract guarantee responsibility, how to determine the guarantee period starting point. If the parties have agreed to provide guarantee for the debt guarantee, the guarantee period should fulfill the expiration date. But the pen guarantees, how to calculate the controversial.

Produced by the rolling payment contract debt payment request to determine the right of litigation prescription starting point, in practice is not easy to judge a sum of money on pay any period of goods price, therefore, from the last to the expiration date of the limitation of action is appropriate. Of course, if the parties agreed in the contract, after the settlement payments, the calculation of payment claims for the period of limitation of action from the settlement date.

7.Article SixthNot agreed to the duration of the contract, in accordance with the provisions of the contract law article sixty-first, article sixty-second, can determine their duration, the period of limitation of action is calculated from the date of expiration of the period of performance; determine their duration cannot be calculated, the period of limitation of action from lenders require the debtor to fulfill the obligations of the date of expiration of the grace period, but the creditor debtor the first to advocate the rights of clear not to perform the obligations, the period of limitation of action from the debtor fails to perform the obligations clear calculation date.

In fact, the judicial interpretation is to avoid the direct application of the contract law 161st stipulation is not conducive to the creditors of the consequences. Contract law stipulates: "the buyer shall pay the price at the agreed time. The time for payment was not prescribed or clearly prescribed, nor can it be determined in accordance with the provisions of this Law in article sixty-first, the buyer shall pay upon receipt of the subject matter or the documents to take delivery of the object at the same time".

Attached:

Supreme Court.2005]Two people He Zi No.35No. 

The Supreme People's court "about the buyer at the time of the transaction fails to pay the price to furnish the seller not the date of repayment period of limitation of actions shall arrears should start from the response computation problem"2006Years3Month10Day) 

Guangdong Provincial Higher People's court:

You college Guangdong high Famin a word (please2005)1"A number of the buyer at the time of the transaction fails to pay the price without repayment of arrears issue date during the limitation of action should start from the" computational problem of receipt to the seller. Through research, the following reply:

According to your report the situation, Feng Shugen to the Guangzhou Baiyun Comprehensive Agricultural Service Co. Ltd.(Hereinafter referred to as the Baiyun agricultural company)The purchase of pesticides, the two sides did not sign a written contract, no evidence that both sides agreed on the terms of the contract, the contract is not fulfilled, the duration of the contract. According to the "contract law" article sixty-second of the people's Republic of China(Four)And the "general rule of the civil law" the second paragraph of article eighty-eighth(Two)Item 137th, the limitation of action in the present case, from the Baiyun agricultural companies to claim the time of Feng Shugen. This case is not in conformity with the method of complex (1994)3Replied the applicable conditions, the judicial committee of the majority agree with you.

This complex 

The Supreme People's court "about the debtor fails to perform his obligation within the agreed time limit expires and issue date of repayment period not owed a limitation of action should start by computing problems" (March 26, 1994)

The Shandong Provincial Higher People's court:
You Institute (lugao method1992)70For dated no.. A debtor fails to perform his obligation within the agreed time limit expires, and issue the repayment date is not in arrears, the period of limitation of action should start counting problem, through research, the following reply:
According to your school report, both parties agree, the supplier's delivery, the buyer payment immediately. Buyer's receiving due to no money can pay, the supplier agrees to write the debt without repayment date, according to the "Regulations of the people's Republic of general principles of civil law" in article 140th, the interruption of statute of limitations should be recognized. If the supplier on the interruption of prescription has not been claimed, the period of limitation of action should be written second days in arrears hereof received the re calculation.
This complex

8.Article seventhEnjoy the right of revocation of a party requests to revoke the contract, should be applicable contract law article fifty-fifth provisions on the scheduled period of one year.

The other party of the right to revoke the contract raise a defense against limitation of action, the people's court shall not support.

Cancellation of the contract, claim for restitution of property, damages the limitation of action is calculated from the date of revocation of the contract.

If the original existence, advocates claim of right in rem action does not apply to limitation provisions, if the unjust enrichment claim is the prescription of action. Life can not be returned into the law can not return and in fact can not be returned, the law can not return because of bona fide acquisition case.

The right to request the contract null and void, because the more controversial, the judicial interpretation not specified.

Cancellation of the contract, the period of limitation of action contract debt has expired, whether with the litigation right of defense against the right to revoke the contract. Can't. In the party to apply for revocation of the contract, if the other party to the contract effective situation under the period of limitation of action has been to defend the right to revoke the contract on the grounds, the court should not support.  

9.Article eighthThe return of unjust enrichment claim of the period of limitation of action, from a party knows or ought to know the fact of unjust enrichment and the opposite party date.

 

10, ninthThe period of limitation of action for a claim management people management behavior without due payment of necessary management fees, compensation for losses, never because of management behavior ends and the manager knows or ought to know the date of the calculation I.

The period of limitation of action I due to improper management behavior without due compensation for the loss of the right to request the, from its knows or ought to know that the manager and the damage fact date.

 

11.Article tenthAny of the following circumstances, should be identified as the general principles of the civil law the 140th regulation "if one party makes a claim for", produce the effect of interruption of statute of limitations:

(a) a party directly to the other party to the other party in the claim documents, signed, stamped or are not signed, sealed but can otherwise prove the documents arrive at the other party;

(two) a party to send a letter or data message that the rights of way, a letter or data message should be to reach or arrive at the other party;

(three) party for financial institutions, in accordance with the law or the parties have agreed that the accounts of the other party from the deduction of debt principal and interest;

(four) if a party One's whereabouts is a mystery., the other party media at the national level or One's whereabouts is a mystery. party domiciled provincial influential published content of the announcement of the right to claim, but the special provisions of law and judicial interpretation provides otherwise, such provisions shall be applied.

The preceding paragraph (a) the case, the other party is a legal person or other organization, the signatory may be its legal representative, the main person in charge, department responsible for sending and receiving letters or an authorized subject; the other party is a natural person, the signatory may be a natural person, the person with full civil capacity relative or an authorized subject.

Claim is disruption of the legal effect, because the right to claim rights and obligations clearly maintained the rights to the realization of the right, and, therefore, the period of limitation of action to the factual basis of doesn't exist, the limitation of action re calculation, legislation is to protect the rights of human rights.

Obligations are natural persons, if their family members is not the living relative with full civil capacity, and unauthorized, or not will claim the right meaning conveyed to the obligor, the receipt of claim document behavior should not have the effect of interruption of statute of limitations.

Claim the right to obligation, not to the obligor in the claim documents shall affix their signatures or seals as necessary elements, obligor not claim document signed or stamped, but can take other ways to prove the claim rights instruments to reach the obligor, can be identified.

Loans of financial institutions referred to in this item from the debtor account deduction of arrears of principal and interest behavior has the effect of interruption of statute of limitations is to not be partially offset the limitation of creditor's rights. The application for legal litigation claim the creditor's right has the effect of interruption part and other creditor's rights.

Leaving the mailing address the original obligor no error, but after the obligor of change of address did not promptly notify the creditors rights, people still in previous post practice mail collection, this can lead to interruption of prescription? The author thinks, the duty leave address error can lead to interruption of prescription, in accordance with the natural interpretation, should be recognized rights claim means to obligations.

Published collection notice does not have a claim on the effect on its Web site.

Related behavior of the administrative organ has the legal effect of limitation of actions.

Human rights and obligations are related to the same enterprise legal representative claims rights, the limitation of action shall interrupt.

Legal representative creditor debtor to not change, the original legal representative claims rights, based on the reasonable reliance, should be regarded as human rights advocates the rights to the obligor.

During the period of limitation of action after the interruption characteristics of litigation prescription starting again during is still the special prescription of action.

In determining whether constitute discontinuance of limitation of action for as far as possible should be done for the benefit of creditor account. Creditors to claim the obligor of associated enterprises, has found its objective reasons to advocate the rights and obligations of the will of man, should have the effect of interruption of statute of limitations.

 

12.Article eleventhPeople have the right to claim the same claim part of the claims of effectiveness, the interruption of the limitation of actions and residual claim, unless the obligee explicitly give up the rest of the creditor's right.

The provisions of this article is the same credit to pay status. However, in can be divided into debts in the creditor, the debt are independent, therefore, by one of the parties on the segmentation part of paymentThe other party is notImpact.

The same credit including the same debt installment.

No matter the principal or interest on all.

13, twelfthIf a people's court complaint orally or prosecution, the limitation of action from the submission of the complaint orally or interruption from the date of prosecution.

The legislation will "lawsuit" as the interruption of prescription legislation reason reason lies in, not the right person is indolent in exercising rights. Due to the right people to the court request, request court is effective means to.

Even if the original told the wrong court the prosecution behavior also has the effect of the interruption of the limitation of actions. Lawsuit brought here, including incidental civil litigation and administrative litigation in advance because of the mistake, also including the proceedings for right of subrogation.

However, the court shall not accept and reject the prosecution can not effect the interruption of the limitation of actions. The reason is that, as the interruption of prescription for prosecution shall refer to legal action, or not legal but sufficient to recognize the real rights of people to the real obligation claim dispute rights, can effect the interruption of the limitation of actions. Otherwise, we do not have the effect of interruption of limitation.

While temporarily inadmissible because of the special policy reasons, also has the effect of the interruption of the limitation of actions. Should be sustained interruption during temporarily inadmissible, until the court issued shall resume the acceptance notice date.

The suit after the withdrawal of the suit, as did not sue, but if the claim rights means that has reached the obligor, should recognize that the interruption of prescription. But does not reach the obligation of the people how to deal with, controversial, no unified opinion.