Supreme People's court

The provisions on several issues of limitations applicable to civil cases litigation trial

Two hundred eight years in August 21st

 

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.

[Note: during the special prescription of action was interrupted by the claim rights, the limitation of action shall be re calculated still during the special prescription of action. Because of the limitation of actions is a temporary interruption of litigation prescription starting nature, rather than during the change of prescription. ]

 

The first party to claim raise a defense against limitation of action, butOn the followingThe right of claimMentionOut of actionDefense against limitationThe people's courtNot supported:

[Note: the Supreme People's court two people court responsible person: we adopted the theory prevailing view, that claims to property interests, not domination. 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 the following circumstances. ]

(a)Pay the depositAndInterestRight of claim;

Two.Payment bonds,Financial bondsAs well asIssued to non specified objectsTheCorporate bondsRight of claim;

[Note: (a) and (two) the two claims related to the realization of social and public interests, if the provisions shall apply to the limitation of action, it will make the people's vital interests. ]

Three.Based on the relationship between the investmentTheCapital paidRight of claim;

[Note: the regulations, pay contribution claim not applicable statute or otherwise, against the company's capital adequacy rules, and not conducive to the full protection of other shareholders and creditors of the company. ]

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

 

Article secondPartyViolation of the provisions of the law,Agreed to extendOrShortenLitigationThe limitation period,To give upLitigationPrescription benefitsThe people's courtNot recognized.

 

Article third partyNot put forwardLitigationDefense against limitationThe peopleThe court should notOn the question of limitation of actionFor interpretationAndTake the initiative to applyProvisions of the limitation of actionThe judge.

 

The fourth party inA trialPeriodNot to mentionOut of actionDefense against limitation, inThe second instancePeriodPut forwardThe people's courtNot supported,ButIt is based on theThe new evidenceCanTo prove that the other partyPartyClaim has beenLitigationPrescriptionDuring the period of the situationExcept.

 

PartyNot in accordance with the provisions of the preceding paragraphRaise a defense against limitation of action,In order toLitigationThe expiration of the limitation period for the application for retrialOrRaises a defenseThe people's courtNot supported.

 

Article fifth partySame debt in installments as agreed by performance, litigationDuring the time a discharge from the last expiry date.

[Note: the reason: the same contract debt has integrity. ]

[Note: This article understanding. (1Its application circumstances) is the parties the same debt installment. (2) it is on the same debt in installments as agreed by the performance. The same debt, refers to the debt in the contract that has determined the content and scope of creditor's rights, does not change with time passed by, by the time factor is fulfilling manner....... The typical form of agreed installment, installment delivery loan debt, business debt etc.. ]

[Note: litigation prescription starting each claim of debt financing in the contract. The academic and theoretical disputes, the judicial interpretation has not been provided....... The third view,...... Reference to provisions of civil code of Japan, the right to request the same provisions under the contract agreed with the integrity and relevance of the regular payment of debt payments, the period of limitation of action from the last expiration date; the right to request the different contract independence than regular payment of the debt contract integrity and relevance the payment, the expiration date from every debt period of limitation of action....... In the regular payment of debts were signed the contract situation, since the debt has been divided into different independent debt, so its independence than finishing and relevance, especially in the total contract to the duration of the case, if still from the debt expiration date when the period of limitation of action, is not conducive to the stability of the social order of transaction....... In judicial practice, reflect the debt more typical for project financing contract debt, namely: the parties stipulated in the total project financing contract, within a certain period of time, direction of loan financing Party issued a certain amount of the loan, as the total loan contract. After that, both parties to the financing plan of loan contracts were signed, the duration of the loan agreement, the amount, the liability for breach of contract and liability. ]

[Note: the principal debt corresponds to the maximum guarantee contract, also for the sovereign debt, the period of limitation of action for a debt claim should every debt expiration date. ]

[Note: we think, the parties agreed to ensure to provide guarantee for the debt, the guarantee period should be at the end of expiration date. But the parties agreed to ensure people are to guarantee a pen or some debt situation, the guarantee period should be a pen or some debt expiration date or the last debt expiration date controversial. ]

[Note: the Supreme People's court Abstract: the parties contract debt installment, the guarantor pledged to "guarantee period independent contract to the main contract failure only", guarantees should be from the main final contract expiration date of the principal debt starting date for the phased implementation of the suretyship liability guarantee. ]

[Note: due to the rolling payment contract debt payment request to determine the right of litigation prescription starting point. The so-called rolling contract, just practice common name. It refers to the agreed total performance period, total debt or just agreed period to fulfill overall or total amount of debt, but not the stage performance duration and amount of clearly defined, in the total performance period available at any time, a contract legal checkout any time relationship....... The parties have not agreed period and based on the phased implementation of the amount, but only agreed to the general term of performance or amount, the debt hasEntiretyAndIt is difficult to segmentThe characteristics, in practice is not easy to judge a sum of money actually pay any period goods price, therefore, 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, the calculation of payment claims for the period of limitation of action from the settlement date. ]

 

Article SixthNot agreed period of performanceTheThe contractIn 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;Cannot determine their durationThe period of limitation of actionFrom theThe creditor to demand that the debtor fails to perform the obligationsCalculation of the date of expiration of the grace period, butObligorIn the first to advocate the rights ofNot clear obligationsThe period of limitation of actionFrom theObligorClear that fails to perform the obligations from the date of calculation.

[Note: but the claim rights of people more than the longest period of limitation of action, the people's court shall not protect. ]

[Note: there is no agreed to the terms of debt, deadline for performance since the creditors claim grace come first certain rights or creditor to determine the time expired, only when the debtor fails to perform his obligation constitutes a violation of rights, there is no violation of rights before the question, why the calculation of limitation? ]

[Note: "the people's justice" group think: no limitation of action from lenders to borrowers repayment rights advocates second days agreed repayment date of the loan contract start date....... You sometimes refers to loans, sometimes means should also not have debt; IOU can only refer to the loan contract. ]

[Note: the obligor actively perform some obligations without determining the remaining debt discharge period, then...... For not fulfilling some of the debt, (1) as right request and given grace period, it should be during the grace period expires date limitation (2) if the obligor that do not fulfil the obligations, should refuse to date (the period of limitation of action3Not the right person) as requested, obligor also did not make the meaning, should be identified if the remaining debt is not agreed period of performance, it is still applicable provisions of this article to determine the litigation prescription starting point. ]

 

Article seventhEnjoyYesRight of revocationWhere a partyRequest for revocation of the contractThe application of the contract law, should fifty-fifth aboutOne year period of exceptionRegulations.

 

Other partyThe parties of the right to revoke the contractMentionOut of actionDefense against limitationThe people's courtNot supported.

[Note: the cancellation of the contract, the period of limitation of action contract debt has expired, not to the right of defense against the limitation of action for the right to revoke the contract. ]

 

Cancellation of the contract,The return of property,The right to claim compensation for lossesLawsuitThe limitation periodFrom the contractCalculated from the date of revocation.

[Note: the cancellation of the contract, the period of limitation of action contract debt has expired, not to the limitation of right of defense against the return of property and compensation claim. ]

 

Article eighthThe return of unjust enrichmentThe period of limitation of action right, from the partyA square knowOrShould knowUnjust enrichmentFactAndThe other partyThe date ofCalculation of.

[Note: due to the performance of existing debt is not caused by the unjust enrichment claim litigation prescription starting point should be in accordance with the provisions of this article shall apply. There is no debt, including never existed in debt, has wiped out of debt and debt should be paid more....... In does not recognize the non reason of real right action in China, performance does not exist debt transfer does not occur, the ownership of the object, in principle does not constitute unjust enrichment. Of course, the subject matter has been consumed or made by third people in good faith, would constitute unjust enrichment. In addition, performance does not exist debt relationship belongs to provide services, but also constitute unjust enrichment.

[Note: only when the property is the finder malicious possession, property behavior into tort, became one kind of manifestation of claims of unjust enrichment. ]

[Note: not yet effective contract, acceptance of performance of negative return the payment obligations of parties....... The payment is paid, labor skills, intellectual contribution form, return of the property can not be regarded as unjust enrichment. ]

 

The ninth managers forBecause no managementBehaviorsPayment of necessary management fees,Compensation for lossesThe period of limitation of action claim, fromBecause no management behavior overAndManagement of people knowOrI should knowThe date ofCalculation of.

 

I am dueImproper management without causeBehaviorsCompensation for lossesThe period of limitation of action right, from itsKnowOrShould know that the managerAndThe fact of damageThe date ofCalculation of.

 

Article tenth under any of the following circumstances, should be identified as the general principles of the civil law the provisions of article 140th"If one party makes a claim for", produce the effect of interruption of statute of limitations:

 

(a) the partiesA party directly to each otherPartyTo claim documents,Other partyThe parties in the documentSign,StampOrAlthough not signed,Sealed but canIn other waysProveThe instrumentTo reach the other sideParty.

[Note: the notarized debt collection should recognize the limitation of actions. Notarization is a kind of legal facts prove that way, the main effect to the validity of evidence....... It is not an independent claim means, but a way to claim the right of human behavior to prove....... If notarization is proved right to claim the fact that document, not within the control collection documents has been sent to the obligor, the certificate to prove the facts do not have the effect of interruption of statute of limitations. ]

 

(two) the partiesA partyIn order toSend a letterOrData messageMethodsRights advocate, a letter or data messageArriveOrWe should arrive at the otherParty.

[Note: creditors through the post office to ensure the collection of overdue loans were issued notice to express mail service, can provide the express mail stub and content in the creditor's case, unless there is evidence to the contrary to overthrow the guarantee creditor the evidence provided by the creditor, should be identified to ensure that the rights of man....... The obligations except for evidence of a letter or data message without the right content....... Proof of the so-called presumption, refers to first acknowledge the evidence to prove the truth, but opposite party has the opposite evidence sufficient to overturn the evidence to prove the facts, the court shall not recognize the facts. ]

[Note: refuse to sign problem. If the postman to the obligations stated in receipt of the time, and the obligor refuse situation, should be generally thought that the message has been reached the obligor, the obligor has evidence to prove that unless the post personnel records false....... Near distance principle of distribution of burden of proof in. ]

[Note: according to the "electronic signature law" article11A, we think, the recipient has designated a specific system to receive the data message, message data into a specific system to the specified time; if no specific system has been designated, the first time the data message enters into any system of the addressee, should be the limitation interrupt time, as the message arrival time. ]

[Note: due to the compulsory people leave email address is wrong, resulting in the rights of people to send mail to arrive not actual obligation problem. We believe that, in this case, because the people have the right to send error and no fault, and the obligor has fault to the mailing address, rights based on reasonable reliance on duty leave wrong mailing address, according to the address of Lord Zhang Quanli's intention should reach the obligor, it shall be deemed as the right people claim means to obligations, so that we can avoid is conducive to the protection of the rights of human rights, obligations intentionally left a false address to avoid debt behavior, also consistent with the basic legal responsibility is....... The obligations of change of address did not promptly notify the creditors rights, people still in previous post practice, cause message not practical to the debtor, should also identify the right to claim means shall reach the obligor. ]

 

(three) the partiesA party for financial institutionsIn accordance with the law or the parties have agreedFrom the other sidePartyAccountIn theThe deduction of debt principal and interestThe;

[Note: regardless of whether the loan contract the lender a chargeback rights,Debit debt the behavior of financial institutions shall be deemed to be the right behavior,Effect of discontinuing the limitation of action....... Financial institutions the deduction of debt repayment of principal and interest from the debtor accounts, substantially offset behavior.1.Legal offset requirements: must be two people are in debt, the creditor shall both sharing; debt subject matter are of the same type, same quality; the both sides must be debt has expired; and both sides must be debt are not belong to no debt; the party who claims offset, it shall notify the other party. Such notice shall be effective upon the arrival at the other party....... Contractual set off, is not required to comply with the above points. ]

[Note: this term refers to the limitation of action is not offset part of creditor's rights. ]

[Note: financial institutions may provide evidence, is mainly the financial institutions transfer slip bottom single and original accounting documents and a chargeback notice to Obligor evidence, therefore, although the evidence for loans of financial institutions to unilaterally, but should be presumed that financial institutions is the fact, unless the debtor has evidence to the contrary enough to overthrow the above facts. ]

[Note: this term refers to the deduction of arrears of financial institutions, financial institutions should be defined as a creditor, if a non creditor banks on the duty of account payments by deduction, and cannot cause between the creditor and the debtor creditor's right limitation, unless the deduction of bank system by the creditors authorization. ]

 

(four) the partiesA One's whereabouts is a mystery,Other partyThe parties in theNational levelOrOne's whereabouts is a mysteryPartyThe domicile of a partyTheProvincial influenceTheMediaOn thePublishHaveClaim contentTheThe announcementIn particular, the legal and judicial interpretation of the provisions otherwise, such provisions shall be applied.

[Note: the obligee released collection notice does not have the effect of interruption of statute of limitations on your website, homepage. In order to make the obligor in the legal fiction can understand the collection content, judicial interpretation of the announcement of the carrier, the rights of people running the site obviously does not meet the conditions of the carrier....... Of course, if the law has special provisions or the parties have a special agreement. ]

 

As mentioned in the preceding paragraphPart (a) circumstancesIn the,Other partyThe parties to theLegal personOrOther organizationsThe,The signatoryCan be theLegal representative,The main person in charge,Responsible for sending and receiving lettersTheDepartmentOrAuthorized subject entities;Other partyThe parties to theNatural personThe signatory shall be a natural personI,LiveWith full civil capacityRelativesOrAuthorized subject entities.

[Note: the corporate business license was revoked after receipt of payment, the creditor to inform the behavior has the effect of the interruption of the limitation of actions. Corporate business license is revoked, loss of capacity of civil business, rather than the qualifications of civil subject, therefore, the qualifications of civil subject still exists, it can still be engaged in external legal behavior, including the sign for the collection of debt instruments of behavior. ]

[Note: legal representative creditor debtor to not change, the original legal representative claims rights, should be regarded as the creditor claims the right to the debtor....... The company internal documents for foreign creditors shall not confrontation goodwill. Generally speaking, the legal representative of the enterprise external publicity requirements change for business registration documents of the legal representative of the personnel changes, but the duty has not been in the industrial and commercial registration of the change, the right people have reason to believe that the original legal representative of the legal representative of the legal person. ]

[Note: the right people to the obligations of the superior departments in charge, and obligations are associated enterprises with a legal representative of claims, has the effect of the interruption of the limitation of actions....... In determining whether constitute discontinuance of limitation of action for as far as possible should be done for the benefit of creditor to explain, as long as there is evidence that the limitation of action within the period, the creditor's rights is not in a "sleep" state, but actively advocated the rights, protection should not take failure has been the loss of rights by the law....... (1) in our country for a long time there looking for leadership, find the solution to the problem of thinking and practice, in general, has the management and the management of the relationship between the obligations of the superior competent department and the obligor, the obligor fails to perform the obligations of the right people, to the management departments to reflect, request to protect their rights to solve the problem, such as the interpretation of article14,15Hereof, it shall have the effect of interruption of statute of limitations....... If the authorities will claim the right meaning conveyed to the obligor, should be identified as to claim rights means that the obligor shall have arrived, the interruption of the limitation of actions (legal effect2The legal representative of the representative organ) due to a corporation, its behavior is the legal act, the right of claim means that reach the legal representative should be identified as to obligations, should have the effect of interruption of statute of limitations. ]

 

Article eleventh the right peopleThe same claimIn theSome creditor rights advocate, litigationInterruption of prescriptionTheEffect on the residual claims,ButObligeeExplicitly waives the remainingOf the creditor's rightExcept.

[Note: the same credit including the same debt installment. In the same debt installment debt situation, the only subject, although debt agreed installment but substantially the same debt, are unique, so that only one or a few period of validity claims, the limitation of actions should be applied to the residual claims, but the premise condition is the residual claims have begun during the the prosecution limitation. ]

[Note: only the principal creditor's right or interest of creditor's rights, effect of interruption of statute of limitations whether the interest claim or the principal creditor's rights. Interest obligations can be divided into the basic right of interest rate and interest rate support decentralization. (1)The basic right of interest rateThat is not yet reached the liquidation period, the interest rate, the original creditor's rights from the right, the limitation of action and the original creditor's right, creditor claims the original creditor's rights or only in the basic right of creditor's rights under the effect of interest, the interruption of prescriptionAndInterest corresponding basic rights or the original creditor's rights. (2)A decentralized interest obligations, the liquidation period, the outstanding interest debt elimination....... With the original creditor's rights separation and independent existence, both from the property and independence. Therefore, in the original creditor's rights or creditor only advocate supporting decentralization interest claim case, the discontinuity of the limitation of actionInferior toSupporting decentralization corresponding original creditor's rights or interest. ]

[Note: the tendency to view a decentralization, interest rate has been with the original creditor's rights separation and exist independently, but it is still based on the principal of credit, also has certain attributes from. If there is no creditor claims interest claim when expressly waives the principal creditor's rights, thenShould not be regarded asTheGive upThe principal creditor's rights. ]

[note:Reduce claim against. Human rights advocates all principal and interest of creditor's rights in the prosecution, when its claim the right means to obligations, the limitation of action disrupted. After that, it may apply for reducing the amount of "litigation request, the case acceptance fee...... According to the claims of the reduced amount of calculation of return "(" means to pay the cost of litigation "article21A), not only have the effect of discontinuing the limitation of action on the part of the role of debt reduction, but also reduce the rights of the people of litigation fee burden. ]

 

Article twelfth partyA partyTo the people's courtSubmission of the complaintOrAn oral complaint, litigationPrescriptionFrom theSubmission of the complaintOrThe date of oral complaintPlayInterrupt.

[Note: in the judicial practice, the debtor creditor relationship between the creditor and the debtor is valid, but only because of the legal relationship between the debtor and the third person does not meet the conditions or the revocation of the right to subrogation conditions shall not accept or reject the case, because the creditors to claim its rights lawsuit mode meaning clear, there is no flaw, the right of subrogation brought or cancellation sues of the creditor's right of the effect of discontinuing the limitation of action. ]

[Note: in the judicial practice, because of certain types of cases have significant impact, the relationship between social stability, there shall not accept the case. Rights through litigation claim their rights means clear, legitimate, just because of the special policy reasons and temporarily inadmissible, so the prosecution shall have the effect of interruption of statute of limitations. During the period of temporarily inadmissible, the period of limitation of action should be continued until the court issued interrupt, resume the acceptance notice date. ]

[Note: the second instance ruled that revocation shall not accept or reject decision to prosecute, the prosecution has the effect of the interruption of the limitation of actions, the limitation of action from the right people to the court of first instance filed interrupt state copy or an oral complaint date. ]

[Note: because of insufficient evidence was rejected the claim, for the discovery of evidence or the emergence of new evidence to prosecute and supported, the first prosecution has the effect of interruption of prescription....... The period of limitation of action from knows or should know that his rights have been infringed date. But due to the people's court must have the defendant and facts clear, if you don't know the tort liability, owners can not claim the rights, also cannot go to court to protect their legitimate rights and interests. Therefore, to determine the litigation prescription starting time, in addition to review whether the owner knows or should know that his rights have been infringed, should also consider whether the owner knows or should know their rights infringed by who, that is the subject of liability for tort exists....... To subject to actively exercise their rights, should not because of the tort liability of the main errors of judgment, simply to the system of limitation of action, so that the right people lose access to judicial remedies....... If the right people to the wrong duty person convicted rejected the claim, is in the judgment, the right talent knows or ought to know the true obligation, at this time, between real rights and obligations from the period of limitation of action right judgment effective date. ]

[Note: the prosecution after withdrawal. Withdrawing the interruption of the limitation of actions should have legal effect, should be in accordance with the withdrawal, whether you have a copy of the indictment delivered duty or verbally inform the way the rights of people to bring a lawsuit that the rights of way means that the obligation to inform the artificial distinctions between standard....... (1) in the judicial practice, there are human rights in the case to the other party orally or in writing inform duty person it has filed a lawsuit case, in this case, limitation of actions in the obligee obligor prosecution fact date....... (2For reconciliation) in the withdrawal of the case, of course, is "a party requests" or to "obligations agreed obligations", the limitation of actions....... (3In the prosecution because of unpaid) costs and be regarded as withdrawal of the case, we think, whether the effect of discontinuing the limitation of action, mainly depends on the claim rights mean that has been the duty of disclosure. Even if the interruption of prescription, also do not belong to the "lawsuit", due to be party claims for ""....... (4In the prosecution of the plaintiff) after having been served with a summons, refuses to appear in court without proper reason, or midway without permission by the court may, by withdrawing treatment situation, because a copy of the indictment of course delivery obligations, the court of course inform obligations prosecution facts, so it has the effect of the interruption of the limitation of actions. ]

 

One of the thirteenth of the following matters, the people's court shall decideAndMentionProsecutionDispute withThe sameThe limitation of actionThe effect of interruption:

 

(a)The application for arbitration;

 

Two.For an order of payment;

 

Three.Filed for bankruptcy,Declare bankruptcy;

 

Four.Lord Zhang QuanliWhileFor a declarationObligorBe missingOrDeath;

 

Five.A petition for property preservation before litigation,An interim injunction etc.Measures of v.;

[Note: application for property preservation before litigation, an interim injunction before litigation when other measures not in accordance with the provisions of the prosecution or the application is not accepted, (1Lift the pre litigation preservation measures) in the circumstances, the right to request the court to protect the right meaning exists, so although the pre litigation measures were lifted, but the Measures apply to the behavior of the interruption of the limitation of actions should still have the force of law; (2) application is not accepted, if is the error, or legal relationship does not exist which cause the application shall not be accepted, so that the right holder fails to Allah's obligation claim or right does not exist, so the application does not have the effect of interruption of statute of limitations; as was the subject correctly, the relationship of rights and obligations clearly, just because no need to take protective measures before litigation, the parties to the court to request the court to protect the civil rights of the intention expressed is genuine, so although the application was not accepted, but the application itself still has the effect of the interruption of the limitation of actions. ]

 

Six.The application for enforcement;

 

Seven.For the additional partyOrBe notified to participate in the proceedings;

 

Eight.In the litigation claim an offset;

[Note: the parties in the litigation claim an offset, but not all support for the initiative, to offset the debt, if active debt obligations is the other party, and the rights and obligations are clear legal, it should have the effect of interruption of statute of limitations. ]

 

(nine) other matters the same effect of interruption of statute of limitations of the proceedings have.

[Note: the right to withdraw the application or that, if the claim rights means that has reached the obligor, shall be deemed to constitute "general principles of civil law" article140The provisions of "a party requests", so the effectiveness of limitation of actions. ]

[Note: application execution has the effect of limitation of actions. The prior execution is to take people's court after accepting the case of final judgment is made before, therefore, the court has accepted the case, so the lawsuit behavior itself is the effect of discontinuing the limitation of action. ]

[Note: China's "general principles of civil law" the period of limitation of action from the time of the interruption of re starting, not science....... Therefore, the re calculated after interruption of limitation of action shall start from discontinuation is terminated, the interrupt matter continued over a period of time, since the expiration of that re calculation. ]

 

Article fourteenthObligeeThe people's mediation committee and other legally entitled to solve civil disputes of state organs, institutions, social organizations and other social organizationsMentionOutProtection of civil rightsTheRequestLitigation request, from the date ofInterrupt.

[Note: whether the behavior of the administrative organ has the effect of interruption of statute of limitations problem. The behavior of the executive is mainly divided into three categories: (1) administrative organs directly as a civil subject in civil and commercial activities, make that claim the meaning of course has the effect of interruption of statute of limitations (2) the administrative organ is not directly involved in the civil and commercial activities, but authorized other civil subject in civil and commercial activities, at this time, the administrative organ to the relevant obligations to claim rights means that also has the effect of interruption of statute of limitations (3) the administrative organ is not directly involved in the civil and commercial activities, but the related civil and commercial disputes are solved, in accordance with the terms of this time, should be applied to the interpretation of article14Regulation, has the effect of the interruption of the limitation of actions. ]

 

Article fifteenth the right toPoliceThe peopleProcuratorateThe peopleThe courtOrCharge,Requests to protectTheCivil rightsThe limitation of action, from the date of report or accusationInterrupt.

 

The agency decisionDo not file,Withdrawal of the case,Non prosecutionThe period of limitation of action, fromThe right people knowOrShould knowDon't put on record, revoke the case or not to prosecuteThe date ofPlayRe calculationCriminal cases; entered into the trial stage, the period of limitation of action from theCriminal judgment on the date of entry into forcePlayRe calculation.

 

Article sixteenth obligations toInstallment,Part performance,Provide a guarantee,Request for delay in performance,Making of a debt repayment planSuch promises or behavior, should be identified as the general principles of the civil law stipulates that the 140th party"Consent to perform the obligation."

[Note: the obligor to perform the RMB loan debt transaction under the same contract, effect of discontinuing the limitation of action against the dollar and the yen loan obligation under this contract. In this case, because the renminbi, dollar and yen loan debt are the same liabilities under the contract, with the overall, it should be regarded as all the debts of the part of the performance, the performance has the effect of interruption of statute of limitations on the dollar and yen loan debt remaining. ]

[Note: the obligations recognized the existence of the debt, but that the liquidated, do not bear the liability of the circumstances, if the rights holders to prove their outstanding debt obligations, admitted to debt can lead to interruption of limitation of action. Because, the overall explained by said on the duty, shall be deemed to negate the obligor is still in debt, but should be identified and agreed that the existence of the debt obligations, otherwise, it will not claim it has fulfilled its obligations. ]

 

Article seventeenth for theJoint creditorIn theA manHave the limitation of actionInterruptEffect of the matter, shall be deemed toOther joint and several creditorsHave the limitation of actionInterruptEffect.

 

ForJoint and several debtorsIn theA manHave the limitation of actionInterruptEffect of the matter, shall be deemed toOther joint debtorsHave the limitation of actionInterruptEffect.

[Note: litigation rights claim has the effect of interruption. He has the other joint debtors, does not require the request intention should be to reach or arrive at the other joint debtors. ]

[Note: the principal debtor and joint guarantee related enterprises as legal representative of the legal representative of the same, in a debtor and guarantor name Dunning notice debtor column signed and stamped with official seal, not in the guarantor signature stamped: be presumed guarantor know fact, the collection has been Dunning notice delivery guarantee, therefore, the collection behavior for the guarantor should also take effect the interruption of the limitation of actions. Of course, the prerequisite is applied, the principal creditor in the guarantee period to ensure that the rights of man. ]

[Note: joint one debtor in litigation right to defense behavior does not have to him. ]

 

Article eighteenth creditors filedThe subrogation right litigationThe, shall be determined asThe creditorTheCreditor's rightsAndObligorTheCreditor's rightsAll have the limitation of actionInterruptEffect.

 

Article nineteenthAssignment of creditor's rights, the limitation of action shall be determined fromThe notice of assignment of rights to the debtorPlayInterrupt.

[Note: if the debtor creditor has been absorbed (creditors no fault), to the original debtor rights advocate, has the effect of the interruption of the limitation of actions. ]

[Note: the transfer of creditor's rights case, the debtor may the creditors claim that the original debt litigation right of defense, namely, the expiration of the period of limitation of action (the original debt1If the debtor receives notification behavior) claims can not be identified to give up its defense litigation right, it can be for the new creditors claim that the original debtor litigation right of defense, (2Whether to give up its defenses) if the litigation right, is the new creditors claim that the original debtor litigation right of defense is not supported....... The so-called debtor's defence of the assignor, the assignee can to, does not mean that the original creditor's rights expired two months left, two months, no new creditors claim against the debtor, upon expiration of the period of limitation of action. Because of the notice of assignment of rights to the person liable, interrupt occurs the period of limitation of action. ]

 

Debt assumptionCase,The form of the original debtor's acknowledgement of the debt, the limitation of action shall be determined fromAssume the debt to the creditor that dayPlayInterrupt.

 

Article twentieth in any of the following circumstances, should be identified as the general principles of the civil law the provisions of article 139th"Other obstacles", proceedingsSuspension of prescription:

 

(a) rights are violatedNoPerson of civil action competence,LimitPerson of civil action competenceNo statutory agent, orThe statutory agent of death,The loss of agency,Incapacity;

 

Two.The beginning of inheritanceAfter theThe successor has not been determinedOrHeritage Management;

 

Three.The right people areThe obligor or other peopleControl cannot claim;

 

(four) other causes of human rights cannot claim the objective situation.

 

Article twenty-firstThe principal debtLitigationPrescriptionPeriodUpon expiration of the,Ensure that people enjoyThe main debtor in litigationDemurrable right of prescription.

[Note: the guarantor and the creditor agreed warranty period for more than two years, whether or not to apply the provisions of this article, mainly depends on the guarantee of rights advocates, the period of limitation of action is the principal debt. In judicial practice, although the guarantee period is longer than two years but it over a period of limitation of actions of principal debt situation (the main creditors in the period of limitation of action in many times to the principal debtor claim, leading to the main debt limitation constantly interrupt). ]

[Note: the period of limitation of action, the principal debt principal debtor fails to do so (or not) defense litigation rights cases, the guarantor may exercise the right of defense against the statute of limitations as the primary debtor. ]

 

The guarantor fails to assertThe lawsuitDemurrable right of prescription,Assume responsibilityExercise to the main debtorRecoveryRight, the peopleThe court shall not support, unless the principal obligor agrees to pay.

[Note: the guarantee contract limitation of lawsuit. (1The general limitation) ensure the principal debt and debt limitation from, from the debt shall be based on the prescription of action against the principal debt, interrupt the main debt limitation, limitation of action from the debt corresponding interrupt (2) in the joint responsibility to ensure that the contract, legal facts interrupt the limitation of action by the debtor, creditors to ensure that does not affect the direct claim, in such circumstances, interrupt the main debt litigation, litigation guarantee debt should not be interrupted due to....... "Guarantee law" article25The provisions of the creditor in the debtor within the guarantee period, bringing a suit or applying for arbitration, the general guarantor of the interrupted during the;...... In the end the litigation or arbitration, the general guarantee period "litigation contract" or the arbitration award date from the decision, started to calculate the guarantee contract limitation of lawsuit. If the creditor in the prosecution of the debtor will guarantee be prosecuted, the limitation of action limitation is the principal debt and guaranteed debt are no longer need to calculate. ]

 

The twenty-second procedurePrescriptionPeriodUpon expiration of thePartyA partyPartyAsOutConsent to perform the obligationTheMeanOrObligation voluntarilyAfter the,AgainLitigationPrescriptionPeriodOn the ground of expiryConductPleaOf the peopleThe court shall not support.

[Note: give up that limitation of counterplea subjective elements. Generally speaking, still agreed to perform the debt obligations upon expiration of the period of limitation of action in the case, should be presumed facts on the expiry of the period of limitation of action, its inner force mean to give up defense litigation right....... If you make the commitment in the obligor, there is evidence that the effectiveness of the inner meaning no give up defense litigation rights, it can not be identified obligations to abandon the litigation right of defense....... If the obligor has voluntarily perform the limitation period has expired debt, even if there is evidence that the effectiveness of the inner meaning no give up defense litigation rights, nor for the return. ]

[Note: that the obligations agreed to fulfill upon the expiration of the period of limitation of action of the debt situation in general are: (1) the debtor verbally to the right people clearly expressed its intention to fulfill upon the expiration of the period of limitation of action (debt2The debtor) issued by the repayment plan or the debtor and the creditors agreed repayment agreement (to the creditor3At least third people) provides the guarantee period of limitation of action or the consent of the debtor's debt (4) the debtor entrust third party to fulfill upon the expiration of statute of limitations (debt5Upon the expiration of statute of limitations) the debtor to fulfill debt (6The debtor voluntarily) before the period of limitation of action creditor debt offset period have limitation in debt. ]

[Note: exceeding the period of limitation of action, the written consent of all the debt, but only agreed to pay part of the debt: we think, should be determined to give up part of the prescription of the debtor's right of defense. The reason lies in: to determine whether to give up defense obligation litigation right, should be to fulfill their obligations as a requirement rather than admit the existence of obligation as elements of its consent. ]

[Note: ensure the expiration of the period of limitation of action to provide security for the debt (1If the guarantor to ")The principal debtUpon the expiration of statute of limitations on the grounds of defense ", the people's court shall not support. Reason. Should presume the knows or should know the main debt during the limitation of action has expired, but is willing to assume security responsibility for the debt, so that its give up defense litigation right, unless there is evidence to the contrary to overthrow (2If the guarantor to ")Guaranteed debtThe expiration of the period of limitation of action as a plea of ", is the people's courts find guaranteed debt limitation period has expired, the people's court to ensure that the limitation of the defense right should be supported.

[Note: the voluntary implementation of expiry of the period of limitation of action of debt: can only be identified the debtor to give up part of the debt litigation right of defense, unless there are other evidence to prove obligations to give up all the period of limitation of action has been debt litigation right of defense. ]

[Note: there are two kinds of interpretation of legal effect of the debtor shall affix their signatures or seals on the behavior in the call loan notices: (1One explanation for the debtor) only recognized the creditor to receive the documents (2The second explanation is the debtor) agrees to perform the debt....... In particular, if the debtor to creditors collection (or required to perform the debt) signed or sealed, should be identified to fulfill debt their consent, but the debtor is evidence to the contrary no agree to carry out obligations....... (1Although the people in the collection) obligations of the signature or seal, but also clearly stated, it does not endorse the debt, it will not agree to fulfill the debt, the signature or seal only on behalf of its receipt of the notice, it can identify the obligations agreed that no obligations (meaning2) if only related transceiver personnel obligations of the sign in the mail documents on the envelope, and the envelope is not stated collection claims content, should not determine the sign that obligation people give up litigation right of defense. ]

[Note: to ensure the effectiveness and signed or sealed by the Dunning notice should distinguish between two cases: (1) the collection behavior occurs after the expiration of the guarantee period. Under normal circumstances, if the guarantor in the guarantee period expires in the notice of payment signed, if according to the notice of payment content and can not be identified during its willingness to have guaranteed debt bear the liability of guarantee, the guarantor shall not bear the liability of guarantee. (2) rights in the warranty period to ensure that the rights or bring a lawsuit or arbitration against the principal debtor. In this case, the guarantee period of limitation of action to eliminate, guarantee the debt shall commence. ]

[Note: the period of limitation of action, compulsory population head repayment commitments, but after the expiry of the period of limitation of action in the plea: we believe that, as long as the right people have evidence that the obligations agreed to fulfill upon the expiration of the period of limitation of action of debt, could be identified obligations to give up defense litigation rights, regardless of whether the obligation is to oral, written or other means to give up litigation right of defense. ]

 

Twenty-third the provisions came into effect, 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.

 

Twenty-fourth the provisions before the promulgation of relevant judicial interpretation made by this court conflict with these Provisions, these Provisions shall prevail.