Should be noted in the judicial practice of the Supreme People's Court on the judicial interpretation of civil litigation prescription understanding and application of

The Supreme People's Court on the judicial interpretation of civil litigation prescription understanding and Application
Xi Xiaoming

[should be paid attention to in the judicial practice problems]
-, parties to the phased implementation of the debt contract guarantee responsibility, how to determine the guarantee period
Too little
We think, the parties agreed to ensure to provide guarantee on the debt, the guarantee period should be the most
After the expiration date. But the parties agreed to ensure people to a pen or a few debts
Guarantees provided respectively under the circumstances, the guarantee period should be a pen or some debt discharge period
The expiration date is from the last debt expiration date controversial. Think
Should a pen or some debt expiration date point of view, the guarantee period
The legislative purpose and effect and the period of limitation of action is not the same, from the guarantee period to ensure that people
Method the purpose, and the parties agreed only to provide security for a pen or some debt real
What considerations, the guarantor is only to provide guaranty for a pen or some debt guarantee period, in principle
From a pen between or some debt expiration date. ① believes should be the last
Debt expiration date of the view that, despite the guarantor only on a pen or a
To provide guarantee a debt, but because the one or several debt is part of the debt, and
During the period of limitation of action for each period of debt is a discharge from the last expiry date, the
Guaranty period should also be its cohesion, a discharge from the last expiry date.
Two, because the rolling payment contract debt payment request to determine the right of litigation prescription starting point
The so-called rolling payment of the contract, and the concept is not a law, but in practice usage
Title. It refers to the agreed total performance period, total debt or just agreed total
The total time limit or the amount of the debt, but not the stage performance duration and amount specified,
In the total performance period available at any time, at any time to check out a contract legal relationship. Although from a strict
Sense, pay the contract debt rolling is also in the course of fulfilling the contract, has produced double service
The phased implementation of the same, is not a debt, should not apply the provisions of this article, but based on the parties
Not agreed installment period and amount, and only agreed to the general term of performance or amount, the
Debt is overall and difficult to segment character, in practice is not easy to judge a sum of money the Department
Where the goods payment period price, so from the last to the expiration date of the period of limitation of action is
Appropriate. Of course, if the parties agreed in the contract, after the settlement payments, for payment
Calculation of the period of limitation of action should claim settlement date.
[case]
With a debt agreement the phased implementation of the repayment period, each of the claim of debt
The period of limitation of action a discharge from the last expiry date
The gist: the relationship between legal loan contract, the parties agreed the borrower installment debt
The payment of a debt, the period of limitation of action should be the last debt expiration date
Starting.
A, case introduction
The appellant (defendant in the original instance): Jilin Jiyuan oil and Gas Development Co. ltd..
The appellant (defendant in the original instance): Jilin trust and Investment Co., ltd..
Appellee (the plaintiff): China Everbright Bank China Changchun branch.
In September 26, 1997, China Everbright Bank Chinese Changchun Branch (hereinafter referred to as the China Everbright Bank) and
Jilin Jiyuan oil and Gas Development Co. Ltd. (hereinafter referred to as the Jiyuan oil & natural gas
Company) signed a "loan contract", agreed to by the China Everbright bank borrowing $5000000 to Ji Yuanshi
Oil and gas companies, loan period is from September 26, 1997 to March 26, 2002, profit
Rate of financing cost plus percentage points of.6. "Loan contract" sixth chapter "source of repayment funds and also
The way of payment "clause ninth: Jiyuan Oil and Natural Gas Corp shall pay the interest according to the terms of this contract
Repayment of principal and interest, should be in accordance with the provisions of the following second items, with the benefit of clear. The principal amount and
Date is as follows: the first principal repayment of $1000000, dated September 26, 1999; second
A debt of $800000, repayment date of March 26, 2000; third - 800000 U.
Yuan, repayment date for September 26, 2000 March 26, 2001, 2001 September 26
On March 26, 2002, the repayment of $800000. On the same day, Jilin Province, China Everbright Bank and trust
Investment limited liability company (hereinafter referred to as the company) signed a "guarantee contract" agreement, letter
Support company provides guarantee for Jiyuan Oil and Natural Gas Corp loan of $5000000 yuan, "guarantee contract"
Fifth agreed to guarantee for joint liability guarantee, seventh agreed warranty period for the contract
The legal validity date until the principal contract the borrower in the contract all the liabilities under the pay date.
After signing the contract, the China Everbright Bank actually paid out $5000000 in loans to the Yoshiwara Oil and Natural Gas Corp
Paragraph, but after the expiry of the contract Jiyuan Oil and Natural Gas Corp contract fails to repay the loan principal and interest.
In January 7, 2004, the China Everbright Bank to the Jilin Provincial Higher People's court proceedings, request
Decree: Jiyuan Oil and Natural Gas Corp to repay the loan of $5000000 yuan and interest; trust company
Joint guarantee liability.
Two, the judgment
The Jilin Provincial Higher People's court that: China Everbright Bank and Jiyuan Oil and Natural Gas Corp and letter
Support company signed the "loan contract", "guarantee contract" in accordance with the provisions of relevant laws, is the
True expression of intentions, legitimate and effective, with it legally binding. In Jiyuan oil & natural gas
Company that China Everbright Bank should be in the two years after the expiration of each creditor's rights that creditor's rights, no claim shall be regarded as
After the prescription of claim, the court shall not support. Because of its view that the two sides in the "loan contract"
Although agreed instalments, but in the "loan contract" at the same time the agreement to terminate the contract
Limit, which means that the repayment agreement, does not affect the rights of the whole contractual obligation to exercise and bearing
Dan. "Loan contract" agreed the rights and obligations of the indivisibility of limitation of action, so the case
Should be March 26, 2002 expiration of two years. The trust company signed with the China Everbright Bank Guarantee "
The same "agreement guarantee for joint liability guarantee, the guarantee period for this contract takes legal effect
The date of the main contract the borrower in the contract all the liabilities under the settlement date. According to "guarantee
Interpretation of law "provisions in the second paragraph thirty-second, as an unknown, the guarantee period for performance of the principal obligation
At the expiration of the period of two years from the date of the. The trust company to exceed the limitation of action for, not all debts
Joint and several liability claims, the court shall not support. In accordance with the "general principles of civil law" the first paragraph 106th,
"Guarantee law" eighteenth and "security law" interpretation of paragraph second of thirty-second, the college in
Yoshimi Ni (2004) at the beginning of the word no. eighth civil judgment, judgment: A, Jiyuan Oil and Natural Gas Corp
Since the decision within ten days from the commencement of the Everbright Bank loan principal payment of $5000000 and interest. Two,
The trust company of Jiyuan Oil and Natural Gas Corp loan principal and interest on $5000000 jointly and severally Qing
Compensation liability.
Jiyuan Oil and Natural Gas Corp, trust companies are not satisfied with the judgment of court, to the most
The high people's Court of appeal.
The Supreme People's court think: the judgment of the first instance that the limitation of the right, two
The trial court shall sustain. The appellant Jiyuan Oil and Natural Gas Corp for the "loan contract" in the first five
Third, China Everbright Bank that has exceeded the limitation of the grounds of appeal can not be established, the court shall not
Support. The trust company of guaranty liability and warranty period of six months of appeal
The reason is not established, the court shall not support. The Supreme Court in accordance with the general principles of the civil law "106th article"
1, the "security law" eighteenth and "interpretation of the guarantee law" thirty-second paragraph second and the "civil procedure
Law "the first paragraph of article 153rd (1) provisions and Article 158, December 15, 2004
(20043 min two final No. 147th civil judgment, ruling as follows: rejecting the appeal, upheld the.
Three, analysis and research
(a) the loan contract installments when starting
The loan contract in several respectively perform payments should be understood as the whole contract
The organic part of rights and obligations. The contract as a whole, the rights and obligations are inseparable,
The rights and obligations of a contract with the existing rights and obligations respectively as a whole. Although the contract
Is the stage performance, but its obligations set is based on the same contract, the obligations of the content as a whole
Body form the content of the rights, rights of people enjoy the contract right is also a
The whole contract rights, its advocate the rights of contract is the right idea, so the right people can
In the right of the final maturity as a whole and not to achieve, in respect of the rights advocates.
On the other hand, if the debtor in the phased implementation of the expiration without fulfilling its repayment
Obligations, as long as the payment of overdue interest in accordance with the contract, the total discharge period and stipulated in the contract
Before the expiry of the contract limit meet all obligations, it did not cause any damage to the creditor's rights.
Therefore, the overall performance of obligations to the debtor after the expiration of the period of limitation of action begins to calculate.
(two) the creditor to five $4200000 reimbursement request exceeds the limitation of action
Jiyuan Oil and Natural Gas Corp shall in each individual debt contract's fulfill justice period
Otherwise provided, shall pay overdue interest in accordance with the contract, but only in the period of the overall contract performance
The expiration of not to perform the contract, it constitutes the Everbright Bank contract rights violations, China Everbright Bank
Line also has requirements Jiyuan Oil and Natural Gas Corp shall undertake the corresponding responsibility to fulfill the obligations, rights.
In view of the Everbright Bank in 2002 March 22 to the trust company to send a telegram the Dunning and 2004 1
A lawsuit claims the contract rights of the Supreme People's Court on 7 September in Jilin Province, China Everbright Bank
Claims department during the statutory limitation within two years, means that the creditor to the debtor claims five
4200000 dollars money interest, does not exceed the limitation of action; the five period debt should be as uniform
A creditor's rights seriously, should not be drawn respectively the calculation of limitation conclusion. Jiyuan Oil and Natural Gas Corp
The "loan contract" in the five period before repayment of $4200000 and interest has exceeded the limitation of action and the
Which can not be established, the court shall not support.
(three) the guarantee period, guarantee liability
According to the "security law" interpretation, "guarantee contract" agreed to guarantee
Until the debt principal repaid far and other similar content, as an unknown, the guarantee period should be the main debt
Service performance two years prior to the expiry date of the calculation period. The creditors shall, during the period in accordance with the law to guarantee the claim
Lee. Otherwise, the guarantor shall be exempt from guarantee responsibility. Therefore, in this case, the surety shall apply "guarantee
Interpretation of law "provisions in the second paragraph thirty-second, the guarantee period as an unknown, the guarantee period
Debt to the expiry of two years from the date of. The first five period Debt Loan Contract, no more than a lawsuit
Effect, there is no more than the period of guarantee liability trust company, the trust company should continue to assume security
Responsibility.
The second instance procedure, the trust company argued, in the loan principal under the contract "guarantee contract",
Did not agree that people trust company in the stage of the repayment period of Jiyuan oil and natural gas
The company undertake suretyship liability and content, should be regarded as the "guarantee contract" in the main contract
No agreement or the agreement is not clear card during the period and in the legal, valid within the time limit, nor to protect creditors
Witnesses were asked to bear the liability of guarantee. Therefore, more timely, to ensure that people can't trust company
Legally binding. The creditor and the debtor repayment agreement, is divided into six phases. But before five in the
Within the statutory time limit, China Everbright Bank, knowing that their legitimate rights and interests have been infringed and fails to ensure that recovery
Right. By February 17, 2004 China Everbright bank creditors prosecution, China Everbright Bank has always
Not to guarantee trust company undertake suretyship liability. According to the "security law" article twenty-sixth,
A suretyship of joint and several liability, in the period of guarantee stipulated in the contract, the creditor does not demand that the surety
The guarantee liabilities, the guarantor shall be exempt from guarantee responsibility. Therefore, the trust company shall be exempt from guarantee
Responsibility. According to the "interpretation of the guarantee law" provided for in the first paragraph thirty-second, "guarantee contract" agreed
Card during the period earlier than or equal to the debt limit, as there is no agreement, guarantee period as debt
Service performance at the expiration of the period of 6 months from the date of. In this case, Jiyuan Oil and Natural Gas Corp should be the final repayment
The effective period of March 26, 2002, the China Everbright Bank prosecution has more than 6 month warranty
, trust company has no Jiyuan Oil and Natural Gas Corp undertake suretyship liability obligations. Therefore,
The court ruled that the error of no more than the limitation of action, and erroneous application of the law.
The key point lies in that the guarantee period as did not agree, can only apply to 6 months of exclusion
The provisions of the period. As no agreement refers to the guaranty period is less than or equal to the principal debt maturity maturity
Day, did not set aside time to creditors claim that creditor's rights. And an unknown refers to
License period longer than debt discharge date, but no clear deadline. For example, the guarantee liability to the main debt
Service performed so far, for an unknown; responsibility to ensure that 2 years after the maturity of the debt, otherwise agreed
To make clear. In short, the trust company's grounds of appeal can not be established, the court of second instance shall not support.
To sum up, for the same contract installment debt, the Supreme Court has made no
With the identification and treatment, for example some per due a separate calculation of limitation, some uniform
According to the calculation procedure to compute the last amount due under the contract obligation of aging. Due to the
The different value orientations, treatment results are different. The spirit of the creditor benefit protection principle
Hair, the same contract stage to perform more debt, calculation of limitation in accordance with the same debt,
Can more embody the spirit of legislation, and the principle of fairness.