Provisions of the Supreme People's court "about some problems of the application of limitation in civil proceedings system trial" (hereinafter referred to as the judicial interpretation), the Supreme People's Court on August 11, 2008 the 1450th meeting of the judicial committee, and published in 2008 9, 1 days and implementation.

The limitation of action is a legal system for the obligee does not exercise the right to request the people's court for protection of civil rights according to law within the statutory period. The main purpose of the establishment of this system is to awaken "right to sleep", urge the obligee to exercise their rights, and thus the stability of legal order. The world in the civil code provisions on the. China's general principles of civil law of litigation prescription system has carried on the simple rules, the relevant judicial interpretations promulgated after the although a supplementary provisions, but still not enough system, perfect. Because of the social life, easy to complex problems, the limitation of action in the judicial practice, the trend of diversification of difficult, therefore, to strengthen the research on the question of limitation of action, immediately issued judicial interpretation, the judicial scales, fair and efficient case has important significance.

The promulgation of the limitation of action of the judicial interpretation of a total of twenty-four, in a comprehensive review of the existing judicial interpretation of the provisions of the basis, scientific correction, integration and improvement, respectively from the aspects of limitation of action, when the general, interruption, suspension, force carried more systematic, comprehensive. We will be here to the judicial interpretation to unscramble one by one, and puts forward some suggestions on the related practice operation, to avoid the limitation problem caused by the loss of legal rights.

 

One, the scope of litigation prescription system.

Reference [provisions]

Article 1 The 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.

[] brief analysis

Application of litigation prescription system scope, involving what rights because of limitation of action period expires, the obligor raise a defense against limitation of action and not by the court to protect the rights of human rights protection, the significance of. But the laws and regulations and judicial interpretations of China were not the problem to make specific provisions, causing confusion in judicial operation.

After in-depth research and repeated demonstration, the Supreme Court in the provisions about this issue, adopted the theory prevailing view, that claims to property interests, not dominant. If the right people long delayed in exercising rights, will be in a state of uncertainty of legal relationship, not conducive to the maintenance of social stability of transaction order, the creditor's rights provisions of the prescription of action.

But to pay the deposit interest claim, payment bonds, financial bonds issued to non specified objects and corporate bonds and the right to request is generated based on the relationship between capital investment to pay claims made provisions. This is because the first two kinds of realization of the claim is related to the social and public interests, if the provisions shall apply to the limitation of action, it will make the people's vital interests. In addition, regulations, pay contribution claim nor the prescription of action otherwise, against the company's capital adequacy rules, and not conducive to the full protection of other shareholders and creditors of the company.

[measures]

The judicial interpretation stipulates, it may bring a lawsuit prescription counterargument right is limited to the creditor's rights, can apply action limitation is disputed property claim. In practice we should pay attention to, if the disputed rights belong to the creditor's rights, it should be on the question of limitation of action to give full attention, exercise of the right of defense to clear debt caused by. We should pay attention to, financial claims based three class is not suitable of litigation prescription system, in proceedings of the case, not to exceed the limitation of action for the defense of creditor's rights.

 

Two, the parties can not be agreed on the limitation of action.

Reference [provisions]

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.

[] brief analysis

We can often see in practice by agreement of the parties to exercise their litigation rights of creditors in the contract period. New judicial interpretations on this issue are clear, the 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. The reason to make such provisions, its legal basis lies in the limitation of actions is a kind of statutory limitation, and the relevant rights and obligations of the parties is also the legal rights and obligations of the parties, not through the free way of agreement to carry on the limit, change or remove.

[measures]

A clear limitation system is not changed by agreement. In the process of foreign contract, the validity of this clause must have a clear understanding of. Respect the law on the limitation of action, and the flexible use, can be very good to safeguard their legitimate rights and interests.

 

Three, the court did not take the initiative to apply the provisions on limitation of action.

Reference [provisions]

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.

[] brief analysis

The essence of the right of defense of limitation of action is a civil right of the debtor, the debtor is exercise, justice should not be too much intervention, which is the fundamental principle of civil law.

A defense against limitation of action party according to the substantive law on the limitation of right of defense in the lawsuit filed is the entity right of defense, is required by the parties claim counterplea, whether the parties claim, belongs to the category of free punishment, justice also should not be too much interference, this is the punishment of civil principles should have meaning.

Therefore, follow the principle of autonomy and the principle of action, when the debtor fails to raise a defense against limitation of action under the circumstances, the people's court shall not invoke provisions of prescription of the referee, the regulations and the courts and magistrates adapt to the status.

It should be pointed out is, said in the debtor has no claims litigation right of defense means circumstances, if the people's court for clarification on the question of limitation of active, is tantamount to remind and help the debtor s, contrary to the basic principles of honesty and credit, there are illegal Hospital Center referee neutrality.

Therefore, the judicial interpretation of the provisions, if 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.

[measures]

Judicial practice in many courts, will take the initiative to remind the parties note limitation problem in the trial of cases, and also provides the court may directly apply the limitation of action for the referee. The introduction of new judicial interpretations, this situation will no longer exist, neutral position of the court will be reflected in more obvious. So we in the process of litigation, should consciously establish litigation consciousness, and to find out the facts of limitation of action.

 

Four, the second instance raise a defense against limitation of action the court will not support.

Reference [provisions]

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.

[] brief analysis

The new judicial interpretation according to relevant rules of the Civil Procedure Law on the limitation of action in the exertion of right of defense stage to the limit, in principle, the defense about the limitation of action shall be proposed in the first instance, the second instance proposed, not support.

In addition, according to the provisions of the Civil Procedure Law of 151st on "the people's Court of second instance shall review the appeal" the relevant facts and the application of the law of civil litigation of our country of second instance, the second trial, the second instance trial continues to undertake the first instance. The second is the legal trial, and trial of fact, in the second period, the parties may present new evidence, further stated the facts of the case, the court may on a trial not facts and the application of the law of hearing.

The second trial shows more of substantive justice function pursuit, also contribute to the realization of the litigation efficiency. Therefore, judicial interpretation of the provisions of the exception, that the debtor has new evidence to prove that the other party's claim over the period of limitation of action in the second period, the people's court shall support.

At the same time, the court should not allow the debtor breaks through the restriction of trial grade, do not respond to the parties based on the limitation of action right of defense proposed retrial application support; at the same time, the parties based on other retrial for support in the retrial, the retrial process proposed anti discrimination of limitation of action, the people's court shall not support.

[measures]

In view of the limitation of action the court will no longer support during the trial of second instance and retrial defense, we should pay attention to, the limitation of action shall put forward defense in the trial period, a trial before and during the first trial should try to collect and provide relevant evidence in excess of the limitation of action. After the first instance proposed, unless new evidence, the court will not support.

 

Five, stage discharge the debt of the period of limitation of action a discharge from the last expiry date.

Reference [provisions]

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.

[] brief analysis

China's general principles of civil law in 137th only to the period of limitation of action point of principle, but not the parties agreed to the phased implementation of the same debt, the period of limitation of action for each stage of the claim of debt problem how to stipulate the date. The practice in the past, different court case many contradictions, some courts that every debt shall be calculated separately the limitation, there are some court should consider from the last debt expiration date, and the court a compromise position, according to the independent debt to decide whether an independent calculation.

In recent years, with the deep understanding of, the theoretical circles and judicial circles gradually on the issue reached a consensus, namely "the parties agreed on the same loan installment payment of a debt, the right to request the period of limitation of action should be the last period to period commences." Judicial interpretation adopted the view.

In this article the understanding should pay attention to two points: first, this article is to pay the installment debt a debt of claim in litigation limitation of starting point, rather than on the payment of all the debt claim limitation period prescribed starting point, the latter should of course from the last period of time of performance the date of expiry of the period of limitation of action. Second, this article applies the situation is the same debt in installments as agreed by the performance.

[measures]

This article focuses more on the protection of the interests of creditors, provides the legal basis for this provision for our accurate calculation of installment debt litigation prescription starting time.

 

Six, the time of litigation prescription starting time of performance of the contract has not been agreed upon.

Reference [provisions]

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.

[] brief analysis

For not agreed to the contract, determine the key litigation prescription starting time is to determine their duration when it expires. "Contract law" article sixty-first: "after the effective date of the contract, the parties as quality, price or remuneration, the place of performance content was not prescribed or clearly prescribed, the agreement could add; fail to reach a supplementary agreement, in accordance with the relevant clauses of the contract or transaction practices, determine". Article sixty-second stipulates: "the contract was not clear, in accordance with the provisions of law sixty-first still cannot be determined, the following provisions shall apply:...... (four) if the time of performance is not clear, the obligor may perform, the creditor may require performance at any time, but the other party shall be given the time required for preparation......." Determine their duration, first should be in accordance with the provisions of this article two to handle. If you still can't decide, in accordance with the spirit of Contract Law shall be calculated from the creditors, debtors to fulfill their obligations to grace the date of expiration of the period of limitation of action. The debtor in the first time to the creditors rights clear fails to perform the obligations, the creditor to the debtor grace period has no practical significance, can be regarded as the time of performance, the period of limitation of action from the debtor fails to perform the obligations clear calculation date.

[measures]

Is not agreed to the contract when providing a clear legal basis for the calculation of limitation. Our foreign contract, should try to fulfill the term shall be expressly agreed by the parties, to avoid unnecessary trouble. In the absence of agreement, we should accurately grasp the judicial interpretation of the provisions concerning litigation prescription starting time, so as to avoid the period of limitation of action after suffered unnecessary losses.

 

Exercise seven, the right to revoke the contract does not apply the limitation of action.

Reference [provisions]

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.

[] brief analysis

According to the theory of civil law, scheduled period refers to the period stipulated some civil rights. Human rights are not made within this period corresponding civil rights, then at the expiration of statutory period leads to the elimination of the civil rights. The right to revoke the contract belongs to the civil right, exercised during the substantive rights applicable exclusion period, without the application of limitation of action. "Contract law" the fifty-fifth stipulation: "in any of the following circumstances, cancellation right is extinguished: (a) a party having the right to revoke the self knows or should know that the play does not exercise its right of rescission within one year of reasons for revocation; (two) a party having the right to revoke know the cause for cancellation, expressly or by their behavior said to abandon the right of revocation." The right to revoke the contract specified in the applicable period, the judicial interpretation has to be clear. In addition, the starting point for the cancellation of the contract after the limitation of action related claim period are specified, from the date of revocation of the contract calculation.

[measures]

Focus should be on period in a year of exercise the right to cancel the contract, and the scheduled period was unchanged during such suspension, interruption, and prolonged does not apply. The period since the day was calculated from the corresponding entity right. In addition, should pay attention to the time when the contract revocation request right after the limitation of action, avoid the fault caused by the limitation of action after.

 

Eight, the starting point of the period of limitation of action claim for restitution of unjust enrichment.

Reference [provisions]

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.

[] brief analysis

According to the "general principles of civil law" in article 137th, the period of limitation of action from the right person knows or should know that his rights have been infringed upon. Know the rights are violated, the right people in the subjective reality has proved itself the right infringement fact. "Know" refers to the rights violations were found and tort. Sometimes, the right people is the first found infringement, to verify the infringement. In this case, if the obligee discovery violations start aging, it is obviously on the right were negative, the exact facts and tortfeasor should take human rights violations found after, can exercise their litigation rights began to calculate aging.

Therefore, the period of limitation of action for the return of unjust enrichment claim, shall be from a party knows or should know the fact of unjust enrichment and the opposite party date.

[measures]

Only know the fact of unjust enrichment, calculation of the period of limitation of action does not start, but also the other party, can realistically be filed an action for damages, the period of limitation of action began to calculate. So the right people in do not know the other party, do not have to worry about the limitation of action after the exercise of their rights.

 

The starting point of nine, the period of limitation of action clear causelessness management debt claim.

Reference [provisions]

Article ninth The 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.

[] brief analysis

No because of debt management is divided into management of creditor's rights and the creditor's rights. For the management of human rights, the so-called know or should know the infringement of the rights of the day, it is the act of management without cause and management of end knows or should know my day. To my right, litigation prescription starting time management and non management is similar, and the damage fact date from its knows or should know.

[measures]

Management of people after a non management behavior, should pay attention to the time when the limitation of action, so as to avoid the limitation period through the exercise of rights.

Because I manage without damage due to management behavior, should also pay attention to actively exercise their rights in time.

 

Ten, the limitation of action for discontinuation "if one party makes a claim for" includes situations.

Reference [provisions]

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.

[] brief analysis

"General principles of civil law" 140th stipulates: "the limitation of action for litigation, a party demands or agrees to interrupt obligations." Where a party requests, that actively exercise their rights, so can produce the limitation interrupt effect. But what is the "request", the circles of theory and Practice for a long time did not have the same understanding. The judicial interpretation on the clearly defined four kinds of situations, one is to the written claim documents, two is to send a letter or data message that the rights of way, three are financial institutions from the accounts of the other party to deduct the debt principal and interest, is the four Party of the other party One's whereabouts is a mystery., published in the media notice of claim the. The four ways are often appear before the practice behavior, judicial interpretation of the cause effect of litigation interruption to confirm. In addition, the article also on the "receiver" are defined, determine the sign which people have the force of law.

[measures]

As a creditor, the right to request to each other, try to use four methods of the judicial interpretation of the provisions of, and pay attention to retain the relevant evidence, so as not to take responsibility for the claims is not recognized by the law and lead to legal risk limitation through.

 

Eleven, on the part of creditor's rights advocate, effect of interruption of statute of limitations and residual claims.

Reference [provisions]

Article eleventh People 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.

[] brief analysis

New judicial interpretation to highlight the integrity of creditor's rights, as long as the right people on the right part of the same debt claims in the interruption of the limitation of actions, the effectiveness of the residual claims, but the obligee explicitly waives the remaining debt, then without interruption of prescription system to protect.

[measures]

For creditors, want to break the limitation of action, without the need for all claims, can be part of creditor's rights.

For the debtor, creditors of the debt claim part, effect of interruption of statute of limitations and residual claims, the creditors could not justify the proposed defense.

 

Twelve, the limitation of action from the submission of the complaint or an oral complaint, interrupt.

Reference [provisions]

Article 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.

[] brief analysis

There are many claim rights of way, in which "lawsuit" is the public right to request the court to which a public authority to use the public power to protect its rights and remedies.

The relief claimed in "lawsuit" to the public, to claim rights mean clearly, therefore, the limitation of action should be interrupted, and because of this, the legislation of various countries all the "statutory litigation" as the interruption of the limitation of actions.

On the "suit" situation, the period of limitation of action when should interrupt, controversial, respectively, have filed a lawsuit, the people's Court on the day of acceptance and a copy of the complaint service obligations, interrupt three opinions from the parties to the court.

According to the court, claim rights of people to "Sue" way because of the request, the protection of the rights of the object to the court, so as long as the prosecution materials or an oral complaint submitted to the court, it should be identified its proposed the claim to the court, the limitation of actions, without waiting for the court.

    Judicial interpretation of the provisions concerned, a people's court filing the complaint or an oral complaint, interruption of the submission of the complaint orally or the commencement of the period of limitation of action. Limitation of action "from the submission of the complaint orally or interrupt" Sue date rather than "court according to the admissibility of the day break", more in line with the purpose of legislation limitation interrupt system, but also conducive to the protection of the rights of human rights.

[measures]

Attention should be prosecuted in the courts within the period of limitation of action, submission of the complaint or an oral complaint, to the court, the limitation of action is interrupted.

 

Thirteen, has filed a lawsuit or interruption of limitation effect causes.

Reference [provisions]

Article thirteenthOne of the following items, the people's court shall determine that has the same effect of interruption of prescription and lawsuit:
(a) for arbitration;
(two) for an order of payment;
(three) filed for bankruptcy, declare bankruptcy;
(four) as the right to apply for a declaration that the obligation of people missing or dead;
(five) apply for property preservation before litigation, an interim injunction against the former measures etc.;
(six) for compulsory execution;
(seven) for additional party or be notified to participate in the proceedings;
(eight) in the litigation claim an offset;
(nine) other matters the same effect of interruption of statute of limitations of the proceedings have.

[] brief analysis

"Proceedings" is a public right to request the court to which a public authority to use the public power to protect its rights and remedies. The relief claimed in "lawsuit" to the public, to claim rights mean clearly, therefore, the limitation of action should be interrupted. But in civil litigation, the prosecution is not the only reason to the interruption of the limitation of actions. According to the "general rules of the civil law" 140th article original intention, judicial interpretation of the expansion of the interpretation of the law, namely "the literal too narrow, not enough to express the legislative intention, thus expanding legal provisions of the literal, in order to correct interpretation of legal meaning." In accordance with the expansion method of interpretation, judicial interpretation clearly gives the effect of eight kinds of reasons to break the limitation of action. The eight reason is the right people in other ways to state organs for protection of the civil rights, the rights that people active in the exercise of their civil rights, should have the limitation of action to interrupt.

[measures]

For the right people, not suitable for litigation or not be sued under the condition, can choose other way to interrupt the prescription claims. Flexible methods of limitation of actions, to safeguard their legitimate rights and interests.

 

Fourteen, to the social organization of protection of civil rights to request the same limitation of actions.

Reference [provisions]

Article fourteenthThe rights to a people's mediation committee and other legally entitled to solve civil disputes of state organs, institutions, social organizations and other social organizations to protect the civil rights litigation request, from the date of the interrupt request.

[] brief analysis

To the people's mediation committee and other legal right to solve the dispute of the state organs, institutions, social organizations and other social organizations put forward corresponding protection of civil rights litigation request, can interrupt problem, "the views of the people through" has made the related regulations. "The views of the people through" the 174th regulation, the protection of civil rights the right to request the people's mediation committee or the relevant units, from the request, the limitation of actions. No agreement can be reached through mediation, the period of limitation of action is re run; if the mediation agreement, obligor fails to perform the obligation of the agreement period, the period of limitation of action should be the expiry of re starting. Comparison of the new judicial interpretation, we can see two changes, one is to clear the request must be legally entitled to solve civil disputes social organization put forward, two is whether mediation can reach an agreement, the limitation of action from the date the interrupt request.

[measures]

For the right people, in not suitable or not to the courts or arbitration or arbitration case, put forward to protect the civil right to request the people's mediation committee and other legally entitled to solve civil disputes of social organization, also can make the interruption of prescription. So the scope of right choice of larger, more flexible.

 

Fifteen, human rights report or accusation to the justice, calculation problem of limitation of action.

Reference [provisions]

Article fifteenthThe rights of people to the public security organs, people's Procuratorate, the people's court report or accusation, requests to protect the civil rights, the limitation of action from the date of report or accusation interrupt.
The authorities decided not to file the case, not to prosecute, the period of limitation of action from the right person knows or should know that not filing, revoke the case or not to prosecute the date of recalculation; criminal cases in the trial stage, the period of limitation of action re calculated from the date of Criminal Justice Wen Shusheng effect.

[] brief analysis

In some cases, the parties can not judge belongs to the civil case or a criminal case, will choose to the public security organs, people's Procuratorate, the people's court report or accusation, requests to protect the civil rights. This should also be considered parties to actively exercise their rights, resulting in the interruption of the limitation of actions effect. The judicial interpretation to be affirmed, and the limitation of action from when to begin to calculate are clearly defined.

[measures]

To report or complain to the three organs of public security, the limitation of action can be broken off and how to calculate, there is a clear legal basis, the parties concerned shall pay attention to the relevant provisions of the law to protect their legitimate rights and interests.

 

Sixteen, the limitation of action for discontinuation parties "agree that obligations".

Reference [provisions]

Article sixteenthThe duty to make installment, part performance, provides a guaranty, request for delay in performance, making of a debt repayment plan promises or behavior, should be identified as the general principles of the civil law stipulates that the 140th party "agreed obligations."

[] brief analysis

"General principles of civil law" 140th article "the parties agree to perform the obligation of" refer to all the obligations agreed to fulfill obligations directly, clearly acknowledged their obligation and otherwise indirectly made commitments, also can cause the interruption of prescription. Therefore, the judicial interpretation stipulates clearly, obligor makes installment, part performance, provides a guaranty, request for delay in performance, making of a debt repayment plan promises or behavior, can be identified as "party agrees to perform its obligations".

[measures]

For the obligations of the people, if make installment, part performance, provides a guaranty, request for delay in performance, making of a debt repayment plan behavior are regarded as "agreed obligations", will cause the interruption of statute of limitations, therefore, should be careful to make such a commitment or action.

 

Interruption of limitation action, joint debt in seventeen.

Reference [provisions]

Article seventeenthFor a joint and several creditors have effect of interruption of statute of limitations for, shall be determined to have the effect of interruption of statute of limitations on the other joint and several creditors.
For a joint debtors in the effect of interruption of statute of limitations for, shall be determined to have the effect of interruption of statute of limitations on the other joint debtors.

[] brief analysis

In the joint liability for the creditor's rights, the corresponding joint creditor is the same debt, therefore, a joint and several creditors have effect of interruption of statute of limitations for, shall be determined to have the effect of interruption of statute of limitations on the other joint debtors. Similarly, the same is true for the joint debtors.

[measures]

For the joint debtors, a debtor to agree to fulfill commitments or obligations, the effect of interruption of statute of limitations and other joint debtors.

For the joint and several creditors, a creditor to the debtor or the litigation rights, effect the interruption of the limitation of actions and the other joint and several creditors.

 

The effectiveness of the eighteen creditors to bring a suit of subrogation, limitation of actions.

Reference [provisions]

Article eighteenthThe creditor brings a suit of subrogation, should be identified for the creditors and the debtor's creditor's rights are effect of discontinuing the limitation of action.

[] brief analysis

The creditor brings a suit of subrogation, itself belonging to his creditor's rights advocates, should cut off the aging procedure belongs to the general principles of the civil law 140th stipulation for the list, therefore, can have the limitation of action to interrupt effect. At the same time creditor debtor to the secondary obligor to assert a claim, as allowed by law, for the debtor's creditor's rights, it belongs to a kind of the right to exercise behavior, should also have the limitation of action to interrupt effect. In addition, the creditor brings a suit of subrogation, is derived from a debtor is indolent in exercising rights, objectively harmed the interests of creditors. Therefore, the judicial interpretation confirming subrogation of litigation as the creditor's right of the debtor to other creditors discontinuation brings a suit of subrogation, so as to protect the interests of creditors.

[measures]

As a creditor, in the interest of their own creditor's right at the same time, we should also pay attention to the debtor creditor litigation prescription. The debtor is indolent in exercising its due creditor's rights, the creditor shall before the debtor creditor's right of subrogation of litigation is not present, it can also interrupt the limitation of their debt and the debtor creditor's rights.

 

Nineteen, transfer of creditor's rights and debt obligations for the validity of limitation of actions.

Reference [provisions]

Article nineteenthAssignment of creditor's right, the limitation of action shall be determined from the notice of assignment of rights to the debtor break date.
The debt assumption, which constitutes the original debtor's recognition of the debt, the limitation of action shall be determined from the debt burden means that interrupt arrival date of creditors.

[] brief analysis

"General principles of civil law" article 140th "prescription for litigation, a party demands or agrees to interrupt obligations". In the assignment of creditor's rights transfer matters, the creditor will notify the debtor can constitute a request? In the assumption of debt, debt burden means that as the debtor can admit? New judicial interpretation made affirmative reply.

[measures]

Assignment of creditor's rights, shall give written notice to the debtor, notice arrived, the limitation of actions.

Debt obligations, should pay attention to distinguish whether the original debtor shall admit, the limitation of action, will assume the debt to the creditor from the date of the interrupt.

 

Twenty, the reasons for suspension of limitation of action in the "other obstacles" the scope of the expansion explanation.

Reference [provisions]

Article twentiethAny of the following circumstances, should be identified as the general principles of the civil law the 139th regulation "other obstacles," litigation limitation suspension:
(a) the right infringed without person of civil action competence, person with limited capacity for civil conduct no statutory agent or legal representative, loss, death, loss of capacity of agent right;
(two) after the opening of succession successor has not been determined or heritage management;
(three) the right people are obligations or other control can not claim rights;
(four) other causes of human rights cannot claim the objective situation.

[] brief analysis

Limitation of action, usually due to encounter obstacles obligee cannot exercise its rights and makes the period of limitation of action can not continue to calculate. China's "general principles of civil law" provisions of article 139th, the last six months in the period of limitation of action, due to force majeure or other obstacles cannot exercise his right of claim, litigation limitation suspension. The grounds for the suspension are eliminated from the date, the period of limitation of action to continue the calculation. The law of the period of limitation of action aborted causes a strict limit, only in the event of statutory circumstances, suspend the party can cause the limitation of action. Our country "the views of the people through" 172nd for "other barriers" are defined, refers to "the rights are violated without person of civil action competence, person with limited capacity for civil conduct no statutory agent or legal representative, death, loss of the agency, or statutory agent I lose capacity." Defining the scope is too narrow. The new judicial interpretation of the expansion explanation on this issue, specifically lists can lead to three types of obstacles limitation suspension, and added a provision "other objective circumstances". This explanation is conducive to safeguarding the legitimate rights and interests of creditors, better realize fair goal.

[measures]

For the right people, interpreted to provide a clear legal basis to suspend its advocate the rights of litigation justice, but disorder should retain the relevant evidence, at the same time pay attention to the obstacle is removed, the calculation will continue during aging. For the obligations of the people, the right people have the limitation of action to the reasons for suspension, the obligor shall pay attention to remind and urge obligee as soon as possible to eliminate the obstacles in objective litigation limitation suspension, the limitation of action can be calculated.

 

The expiration of the period of twenty-one, the principal debt limitation of the guarantor to exercise the right of defense against the limitation of action.

Reference [provisions]

Article twenty-firstThe expiration of the period of limitation of action of main debt, the guarantor has a statute of limitations as the primary debtor counterargument right.
The guarantor fails to assert the litigation right of defense, assume responsibility towards the principal debtor to exercise the right of recourse, the people's court shall not support, unless the principal obligor agrees to pay.

[] brief analysis

In view of ensuring debt for the principal debt from the attributes of the principal debt, so the expiration of the limitation of action, the guarantor is also obtained litigation right of defense. But in this case the surety shall still undertake suretyship liability waiver, aging benefits as the main, not to the debtor.

[measures]

To guarantee the people, in the guarantee responsibility should review whether the limitation of action of principal debt has expired. Has been expired, should not assume the guarantee liability, otherwise, unless the principal obligor consents to make, the guarantor will not be able to master the debtor.

 

Effect of twenty-two, the period of limitation of action after the obligor commitment.

Reference [provisions]

Article twenty-secondUpon expiration of the period of limitation of action, the direction of the other party intention to consent to perform the obligation or voluntary obligations, but also to the expiration of the period of limitation of action on the grounds of defense, the people's court shall not support.

[] brief analysis

The solution is actually the validity of the waiver of prescription benefits. Refers to the so-called prescription benefits expire in the period of limitation of action, the loss of the right to win, also means that the debtor to creditors of demurrable right of prescription. Since this is a civil rights or rights, the obligor can free disposition, can exercise, can also give up. Aging interests to give up after, the period of limitation of action has been to destroy, the limitation of action re calculation.

    In practice, give up prescription benefits can take a variety of ways, in addition to the debtor to fulfill the debt, the creditor and debtor on the original super aging debt to reach the repayment agreement, the debtor has said the unilateral, in this way the most contentious.

    The debtor according to their favorable attitude to the original debt, can be divided into: 1 admitted debt; 2 admitted to the creditors of its truth, but not return commitment; 3 admitted debt and promised to return. But if the debtor creditor relationship recognition, the original is to regain the protection of the law? For this problem, the Supreme People's court has issued two related judicial interpretation, it is released in April 16, 1997 by the method of complex (1999) No. 7 "on over a period of limitation of action in the approved" Notice of legal effect of single sign or seal, the two is the method of complex (1997) No. 4 "over the period of limitation of action if the parties reach a repayment agreement should be protected by the law of the reply", for the two judicial interpretations of the Supreme Court explicitly enumerated, the exceeded the limitation of action to protect rights of both, namely the re calculation of limitation. But the two judicial interpretations applicable scope is very narrow, requirements are more stringent, not for other similar creditor's rights to the full protection.

New judicial interpretation to expand the scope of protection, clearly stipulates: "the period of limitation of action, the direction of the other party intention to consent to perform the obligation or voluntary obligations, but also to the expiration of the period of limitation of action on the grounds of defense, the people's court shall not support." The only acknowledged debt without commitment, you don't think up prescription benefits.

[measures]

For the right people, the limitation of action after expiration of debt obligations that creditor's rights not only promises, cannot be considered abandoned prescription benefits for the obligations, but must be the clear intention to consent to perform the obligation or voluntary obligations, such as providing a repayment plan. For the obligations of the people, attention should be paid to the other party in its intention to consent to perform the obligation or voluntary obligations, but also to the expiration of limitation on the grounds of defense, the people's court shall not support.

 

Twenty-three, the scope of judicial interpretation.

Reference [provisions]

Article twenty-thirdAfter the implementation of the provisions, the case is still in the first or second instance, applicable this regulation; prior to the enforcement of these provisions has been the case, the people's court for a retrial, the provisions do not apply.

[] brief analysis

This article solves the problem that the new judicial interpretation have retroactive effect in the scope of the problem. The retroactivity effect, also known as law retroactive, refers to before it becomes effective events and behavior are applicable. If applicable, will have retroactive effect, otherwise there is No. Generally speaking, the "law of non retroactivity" is a basic principle of judicial interpretation, although has certain "legislative", but it is after all an interpretation of the existing law, therefore, the judicial interpretation principle does not apply "law of non retroactivity" principle. The effect of time of judicial interpretation principle during back to the specific legal interpretation of the implementation of the. The occurrence of a judicial interpretation to start before the implementation of the act, the judicial interpretation shall not yet processed or being treated cases, if there are no relevant judicial interpretation act, in accordance with the provisions of the judicial interpretation of the. But for the judicial interpretations promulgated before the behavior, then existing judicial interpretation, the judicial interpretation of the old and the new, can refer to "from the old processing and light punishment" principle. The judicial interpretation has been completed prior to the implementation of the case began, according to the law and judicial interpretation, the facts and application of law without error, continue to maintain the original conclusion, no changes in the.

Therefore, the new judicial interpretations, cases are still at the first or second instance, applicable this regulation; prior to the enforcement of these provisions has been the case, the people's court for a retrial, the provisions do not apply.

[measures]

If the case is still in the trial process, should pay attention to the limitation of action in accordance with the provisions of the new judicial interpretation execution.

 

Twenty-four, the new law is better than the old method.

Reference [provisions]

Article twenty-fourthPrior to the implementation of the provisions of the relevant judicial interpretation made by conflict with these Provisions, these Provisions shall prevail.

[] brief analysis

Judicial interpretation although only a handful of the twenty-four, but there are some terms changed the existing provisions. For example, the twenty-first "debt limitation period expires, the guarantor has a statute of limitations as the primary debtor counterargument right. The guarantor fails to assert the litigation right of defense, assume responsibility towards the principal debtor to exercise the right of recourse, the people's court shall not support, unless the principal obligor agrees to pay."
This provision is obviously changed the "security law" interpretation of several issues in the joint responsibility to ensure that the time when the people of limitation of action. "Security law" interpretation of several issues thirty-fourth provisions of the second paragraph: "joint responsibility to ensure that the creditor in the guarantee period prior to the expiration of the demand that the surety undertake suretyship liability, from the creditor requires the guarantee date, start calculating guarantee contract limitation of lawsuit." We think, this clause a digital modification, will have an impact on trading behaviors of many financial institutions.

Apparently, according to the new law is better than the old law rules, the two conflict, the law shall prevail.

[measures]

The new judicial interpretation to give adequate attention and emphasis, judicial interpretation and judicial interpretation before new carding and research of dissimilarity, dissimilarity under the new judicial interpretation, so as to guide the practice better.