"The Supreme People's court" about some problems of the application of limitation in civil proceedings system Trial Provisions and understand

"The Supreme People's court" about some problems of limitations applicable to civil cases litigation trial by interpretation

"The Supreme People's court" about some problems of limitations applicable to civil cases litigation trial by interpretation
The system of limitation of action -- credit challenges Chinese

(by the Supreme People's Court on August 11, 2008, the 1450th meeting of the Judicial Committee Act release (2008) No. 11)

In order to correctly apply the laws and regulations on the system of limitation of action, the protection of legitimate rights and interests of the parties, in accordance with the "people's Republic", "general principles of the civil law of the people's Republic of China Property Law", "contract law of the people's Republic of the people's Republic of China", "Civil Procedure Law" and other legal provisions, combined with judicial practice, develop the present provisions.
The first party to claim 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.
[that] the judicial interpretation from the claim of real right is or how to apply the litigation validity issues, this article uses the list out the way clear to not apply the litigation validity of claims. In order to protect the interests of depositors, the protection of national debt, financial bonds issued to non specified objects and corporate bonds for the interests of the people, to prevent the enterprise investors false capital contribution or withdrawing capital to protect the interests of creditors, the relevant claim will not apply the system of limitation of action.
The second party 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.
[note] the provisions of the legal system of limitation of action. Some people think that the principle of "freedom of contract" to the parties to the contract agreed to any rights, even agreed not applicable Chinese law (non international trade) agreement contract, disputes arising between the parties shall be submitted to the court (without the arbitration clause excluded), or agreed by the parties shall not be a defense against limitation of action or extend the limitation of action. The system of limitation of action can only be legal, cannot agree.
Article third 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.
[note] the court can only passively accept the defense against limitation of action of parties.
Fourth parties 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.
[description] this is the limitation of present time limit,
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.
[note] party raises a defense against limitation of action period, should be presented in a trial period.
Article fifth the parties agreed the phased implementation of the same debt, the period of limitation of action a discharge from the last expiry date.
[note] this article is about the limitation of the phased implementation of the. Before the introduction of the interpretation, in practice the viewpoint thinks, according to the general principles of the civil law litigation knows or should know the provisions of the rights have been infringed on, should according to each relatively independent claims the expiration date of the limitation of action respectively. But this has made provision to the contrary, the limitation of action installment contract obligation, not according to the corresponding date of performance were calculated from the date of discharge, but finally began to calculate. This is conducive to the protection of the legitimate rights and interests of creditors.

Sixth not 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 creditors and debtors to fulfill their obligations upon expiration of the grace period, but the debtor in the creditors to the first lord Zhang Quanli made it clear that do not fulfill their obligations, the period of limitation of action from the debtor fails to perform the obligations clear calculation date.
[note] this article is about the performance limitation of unknown duration action. The contract according to the "contract law" article sixty-first, article sixty-second, after the contract becomes effective, the content was not prescribed or clearly prescribed, the agreement could add; fail to reach a supplementary agreement, determined in accordance with the relevant provisions of the contract or transaction habit. Where a relevant term of performance is not clear, nor can it be determined in accordance with the provisions of the preceding paragraph, the obligor may perform, the creditor may require performance at any time, but the other party shall be given the necessary preparation time (grace). Among them, 1) can determine the performance period, the period of limitation of action is calculated from the date of expiration of the period of performance; 2) 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 debtor in the creditor first to advocate the rights of clear do not fulfill their obligations, the period of limitation of action from the debtor fails to perform the obligations clear calculation date. In fact, the limitation of action explicitly rejected any claims of behavior are clear from the debtor fails to perform the obligations of the date of.
Seventh enjoys 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.
[note] this article is about the limitation of the right to revoke the contract. "Contract law" provisions of article fifty-fifth, "one of the following circumstances, cancellation right is extinguished: (a) a party having the right to revoke knows or should know the play does not exercise its right of rescission within one year of reasons for revocation; (two) a party having the right to revoke revoke it know by post or to clear their own give up the right to revoke the behavior." The "year" is scheduled period, scheduled period is called the same, generally applicable to the right of formation, the expiration of the period of eliminating rights itself, right of cancellation after the scheduled period destroyed. The period of limitation of action different from, the provisions on the right to revoke the contract cannot raise a defense against limitation of action.
"Contract law" provisions of article fifty-eighth, "the contract is invalid or is rescinded, property obtained under the contract, shall be returned; not possible or necessary shall be returned, discount compensation. The party at fault shall compensate the other party for the losses, both parties are at fault, they shall bear their respective responsibilities." Cancellation of the contract, claim for restitution of property, damages the limitation of action is calculated from the date of revocation of the contract. 　　
The period of limitation of action eighth return the unjust enrichment claim, from a party knows or ought to know the fact of unjust enrichment and the opposite party date.
[note] this article is provided for the unjust enrichment of limitation of action. "General principles of civil law" ninety-second stipulates: "no legal basis, obtain improper benefits, resulting in another person's loss, the illegal profits shall be returned to the person who suffered the loss." Taking into account the unjust enrichment is hard to find, the provisions of such litigation prescription starting date for the "impaired person knows or should know the fact of unjust enrichment and the unjust enrichment were calculated from the date". But "should know" criteria of unknown.
The period of limitation of action ninth managers the right to request for the 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. 　　
[note] this article is about the requirements for the management of non litigation. "General principles of civil law" ninety-third stipulates: "no statutory or contractual obligations, as affected by the loss of management or service to avoid the interests of others, have the right to request the beneficiary of the payment reimbursement of necessary expenses." Request for payment of necessary expenses, and claim for compensation for the losses suffered by the causelessness management, taking into account the causelessness management behavior may last for a period of time, and I find my regression or need a certain time, and because the non reason management damaged generally easy to detect, the provisions of the first paragraph of this kind of litigation prescription starting date "because no management behavior end and the manager knows or ought to know my day."
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.
[note] "general principles of civil law" 137th stipulates: "the period of limitation of action from knows or should know that his rights have been infringed upon. However, from rights have been infringed on the more than twenty years, the people's court shall not. There are special circumstances, the people's court may extend the limitation of action." Taking into account the possible because no because of improper management to my injury, improper management without cause may be difficult to find, and improper management without cause damage is not easy to find, the provisions of the second paragraph of the limitation of action I of the date as "from its knows or ought to know the calculation and management of people and guide the damage fact date".
This article "should know" criteria of unknown.
Article tenth under any 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:
[note] China's "general principles of civil law" 140th stipulates: "the limitation of action for litigation, a party demands or agrees to interrupt obligations. From the time of the interruption, the period of limitation of action re calculation." The main provisions of the three kinds of interruption. This article defines "if one party makes a claim for".
(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;
[note] the premise that is directly written notice (claim the creditor's right, the sign () is entitled to receive individual or department's signature or official seal) or that the documents to the debtor can, even if the debtor refuse, as long as the proof to the interruption can be rejected. To proof obligations are served on the Party (Zhai Quanfang), the debtor to reject the evidence is the key, be sure to carefully.
(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;
[note] writing assert a claim, interrupted by "reach", including the "to" and "to be". To proof obligations to notify the person (creditor).
(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;
[note] the limitation of financial institutions the special safeguard case (for "non financial institution debt offset"). Note that the deduction of arrears is according to the "legal" or "agreed". If neither fixed nor agreed, can not produce the effect of interruption.
(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.
[note] this time affirmed by the media for the One's whereabouts is a mystery. 'debt have limitation interrupt effect, certainly must be "One's whereabouts is a mystery.", and "national or One's whereabouts is a mystery. Party of the place of domicile of the provincial influential media" needs to be further defined, can refer to the relevant departments of the state or local provinces must open bidding announcement of the media can be defined before, pay attention to is the provincial media was urged to' domicile.
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 shall be natural person, live in relative with full civil capacity or an authorized subject.
[note] this is too common, early to be clear, this clause will solve the problem of large, is the interpretation of a very bright, solves the problem of notification recipient. This article distinguishes two kinds of recipient conditions: 1) if the person is a legal person or other organization (a collection of natural persons), accept the Department is mainly responsible for the legal representative or, functional departments (such as the Secretariat, comprehensive management office / Department, the janitor's room) or an authorized subject are 2); where the addressee is a natural person (individual), the recipient for himself, with full civil capacity of relatives and authorized subject. Note that with the sign for the people, shall be "live", "has the completely civil capacity", "relatives" (including the lineal, collateral, Yin Qin). I very much regret or not provided service remedy recipient rejection.
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.
[note] the provisions of the overall effect of interruption of limitation of creditor's rights. Unless people the right to clear up, as long as the right people, for the same claim (whether or not there have been staging performance or partial performance situation) claim part of the claims in the interruption of the limitation of actions, the effectiveness of the residual claims, the principal claim and good information, direct loss and indirect loss claims, 1 money claims and the remaining 99 yuan debt (such as debt amounted to 100 yuan). Therefore, as early as possible from creditors not fully assert a claim would have occurred in the interruption of prescription is not comprehensive.
Twelfth if 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.
[note] China's "general principles of civil law" 140th stipulates: "the limitation of action for litigation, a party demands or agrees to interrupt obligations. From the time of the interruption, the period of limitation of action re calculation." This article defines "the date filed a lawsuit", clearly not from prosecution by the date of prosecution, but from the hand shape or an oral complaint date.
One of the thirteenth of the following matters, 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.
[description] this article belongs to the extension of the "general rules of the civil law" 140th article "lawsuit" type. The above (a) to (nine) items (including arbitration, supervision procedure, special procedures, implementation procedures, security procedures, offset, counterclaim bankrupt procedure etc.) belong to the arbitration or litigation relief measures, should have the same effect with the lawsuit, also caused the interrupt litigation prescription.

Put forward fourteenth 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.
[note] "people's Mediation Committee Organization Act" fifth stipulates: "the people's mediation committee tasks for the mediation of civil disputes, and through the mediation work publicize laws, regulations, rules and policy , educate citizens to abide by the law, respect social ethics. The people's mediation committee shall submit to the villagers' committee or residents' committee to reflect civil disputes and mediation work situation." For a long time, the main way to resolve conflicts and disputes in China is the people's mediation, administrative and judicial solution. These three forms of solution has its unique function and value, but in the interests of multiple and ever-changing circumstances also showed corresponding limitations. We began to explore alternative mechanisms, multiple mechanisms, alternative dispute resolution is also called non litigation dispute resolution mechanism (English abbreviation ADR) originated in the American, is referred to as a series of dispute settlement procedures for out of litigation. "Decision" Xiamen City People's Congress Standing Committee on the improvement of the diversification of the dispute settlement mechanism of the first stipulates: "the dispute between natural persons, legal persons or other organizations, in addition to the provisions of the laws, rules and regulations provide otherwise, can choose the following ways: (a) reconciliation. (two) the folk mediation, labor dispute mediation committee of the people's mediation, the mediation, including the industry groups of people mediation, mediation, conciliation and corporate lawyer presided over by other social organizations, intermediary, individual mediation. (three) the administrative processing, including other administrative mediation, administrative adjudication and administrative organ for handling disputes. (four) the arbitration, including the civil and commercial arbitration, labor dispute arbitration, the arbitration of personnel dispute, agricultural contract dispute and arbitration. (five) proceedings." Therefore, the decision of the first all matters shall cause the interruption of prescription effect. "According to the law the right to solve civil disputes of state organs, institutions, social organizations and other social organizations" shall include the NPC and the CPPCC, Consumer Association, Bar Association, women's Federation, the Football Association, and so on, including the "labor dispute mediation and Arbitration Law" stipulates that the tenth organizations, namely: "labor dispute occurs, the parties to the the mediation organization for mediation: (a) the enterprise labor dispute mediation committee; (two) the grassroots people's mediation organization established according to law; (three) established in a township, street with the function of labor dispute mediation organization." Suggest the best law is proposed to solve disputes functions of the institution or organization. This article is the most significant, non lawsuit civil disputes China solution clearly foreshadows the unbelievable road.

Article fifteenth the 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.
[note] to the justice to sue for protection of civil rights, the relief act arguably should lead to interruption of prescription. This article also distinguish between such as criminal report accused in rows, or public security organs decided not to file the case, not to prosecute the break date.

Sixteenth obligor makes 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."
[description] this article defines the "general rules of the civil law" 140th article "agrees to perform" interrupted due to limitation of standard. "Make installment, part performance, provides a guaranty, request for delay in performance, making of a debt repayment plan promises or behavior" were "agrees to perform", as long as this commitment or behavior can be presumed that rights exist that can cause the interruption of prescription. Compulsory commitment content in addition to clear debts, also includes a request to postpone the payment of debt, to provide security, repayment of debt interest payments, differences.
　　
Article seventeenth for 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.
[note] limitation interrupt effect on people. In most debt, 1) joint credit, a creditor litigation interruption claims of other creditors must share, on the creditor's right and also the interruption of prescription. 2) the joint and several liability, claims the period of limitation of action for a debtor to interrupt other debtor for debt, the debtor's share has limitation interrupt and interrupt; joint and several liability, a debtor waives its right of defense against the limitation, its effectiveness does not extend to other debtors; other debtor does not know the circumstances of the creditors and to fulfill the debt, which contains the part of the debt of unjust enrichment is to share, to request the return of the creditor.

Eighteenth where a 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.
[note] a suit of subrogation, involves two claims, the creditors of the debtor creditor and debtor on the secondary obligor. 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. In addition, creditor debtor to the secondary obligor C assert a claim, as allowed by law, for the debtor to the secondary obligor, it belongs to a kind of the right to exercise behavior, should also have the limitation of action to interrupt effect.

Article nineteenth assignment 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.
[note] the notice of assignment of rights or liabilities of meaning as a new confirmation of the original creditor debt, creditor protection from the new perspective, the limitation of action shall be re calculated. Previously controversial view: assignment of creditor's right or obligation does not lead to interruption of prescription, to calculate the original action.
law applicable Court on several cases involving financial Asset Management Co acquisition, management, bad bank loans into the disposal of state-owned assets "Supreme People's regulations" (2001) the tenth stipulation: "the debtor in the credit assignment agreement, transfer of creditor's rights by signing on debt collection or receipt of notice, the limitation of action. The original creditor banks issued at the national or provincial influential newspaper announcement or notice of assignment of the obligee's right, a debt collection content, the announcement or notice can be used as evidence of the limitation of actions."

Article twentieth in any 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.
[note] this article is about the limitation suspension, "general principles of civil law" 139th stipulates: "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." "Irresistible force" and "the other obstacles" need to explain in this article, mainly including: 1) the legal agent obstacles; 2) inherited obstacles; 3) controlled not claim; 4) other objective cannot.

The expiration of the period of limitation of action of twenty-first 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.
[note] "guarantee law" Twentieth stipulates: "general suretyship and suretyship of joint and several liability enjoy the debtor's right of defense. The debtor to give up right of defense against the obligation, the surety shall have the right to defense. Defense right is refers to the creditor, the debtor according to legal reasons, against the exercise of the right to request." Therefore, to ensure the people also enjoy the limitation of the debtor has the right of defense.
The guarantor shall not return have limitation in debt. The expiration of the period of limitation of action of principal debt, the guarantor shall exercise the statute of limitations as the primary debtor counterargument right, or the principal debtor compensation will not be forced.
　　
The expiration of the period of twenty-second limitation, 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. [note] estoppel rules, pay back never should be encouraged, the back is malicious.

Twenty-third implementation of these 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.
[note] the retroactivity provisions, pending cases applicable regulations, has accepted the case does not apply the rule.

Twenty-fourth the provisions before the promulgation of relevant judicial interpretation made by this court conflict with these Provisions, these Provisions shall prevail.
[note] applicable regulations, the new regulations shall prevail.