Listen to lawyers elaborate on the one-year, two-year and three-year statute of limitations after the implementation of the General Principles of Civil Law.

1. concept of limitation of action

The statute of limitations system, also known as "statute of limitations", means that the right holder whose civil rights have been infringed does not exercise his rights within the statutory statute of limitations period, and when the statute of limitations period expires, he loses the system of requesting the people's court to compel the obligor to perform his obligations in accordance with the proceedings.

Within the period of limitation of action prescribed by law, if the obligee makes a request, the people's court shall judge the obligor to perform the obligations undertaken. After the expiration of the statutory limitation period, if the right holder exercises the right to claim, the people's court will no longer protect it. If a party sues after the limitation of action has been exceeded, the people's court shall accept the case. After accepting the case, if the other party puts forward a defense of the limitation of action and finds that there is no reason for suspension, interruption or extension, the people's court shall decide to reject the claim. If the other party fails to raise a defense of limitation of action, it shall be deemed to have voluntarily waived that right, and the people's court shall not apply the limitation of action on its own initiative in accordance with its authority. It can be seen that the statute of limitations is the legal time limit for the right holder to exercise the right of claim and obtain the people's court to protect his civil rights. It contains two meanings. One is that the right holder has the right to request protection from the people's court in accordance with the litigation procedure during this time; the other is that this right is eliminated if it is not exercised continuously during this time.

Therefore, in the case of the convergence and coexistence of the General Principles of Civil Law and the General Principles of Civil Law, how to determine the limitation of the two involving different periods, to ensure a smooth transition and effective convergence, to ensure that the parties exercise their rights in a timely manner within the limitation period is extremely important.

The Application of Ordinary Limitation of Action in 2.

The principle of application of (I) ordinary statute of limitations conflict

The General Principles of the Civil Law stipulates a two-year ordinary statute of limitations period, and the General Principles of the Civil Law stipulates a three-year ordinary statute of limitations period. Because both of them belong to different provisions made on the same matter, since the General Principles of the Civil Law and the General Principles of the Civil Law belong to the basic law and are in the same rank in terms of effectiveness, according to the principle that the new law is superior to the old law, after the implementation of the General Provisions of the Civil Law from October 1, 2017, the ordinary limitation period shall be three years.

Provisions on the starting point of (II) limitation of action

Careful people will find that there is a difference between the starting point of limitation of action stipulated in the general principles of civil law and the general principles of civil law. The starting point of limitation of action stipulated in the second paragraph of Article 188 of the general principles of civil law is: the period of limitation of action shall be calculated from the date when the obligee knows or should know that the rights have been damaged and the obligor. Article 137 of the General Principles of the Civil Law stipulates that "the limitation period shall be calculated from the time when the right is or should be known to be infringed.". The starting point of the statute of limitations in the General Principles of Civil Law adds the expression "know or should know the obligor" to the starting point of the statute of limitations in the General Principles of Civil Law. In judicial practice, knowing or should know that the right has been infringed should be understood as including not only that the obligee knows or should know the occurrence of the infringement, but also that the obligee knows or should know who the obligor is. Otherwise, it is obviously unfair to the obligee to require the obligee to bear the adverse legal consequences of the expiration of the limitation period of action without knowing the obligor.

In fact, the Supreme People's Court, which came into effect as early as September 1, 2008, stipulated in Article 8 of the "Provisions on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases" that "the limitation period for the return of unjust enrichment claims shall be calculated from the date when one party knows or should know the facts of unjust enrichment and the other party. Article 9 stipulates that the limitation period for the administrator to pay the necessary management expenses and claim for damages arising from the management act shall be calculated from the date on which the management act ends and the administrator knows or should know himself. The period of limitation of action for the right to claim damages arising from improper management acts shall be calculated from the date on which he knew or should have known the administrator and the facts of the damage. It has been clearly affirmed that the starting point of limitation of action includes knowing "the other party" or "himself" or "administrator". The General Principles of Civil Law only clearly stipulates the starting point of limitation of action. Article 188 of the General Principles of Civil Law is a refinement and perfection of Article 137 of the General Principles of Civil Law. There is no difference between the two in determining the starting point of limitation of action, therefore, there is no question of the retroactivity of the starting point of the statute of limitations.

The retroactivity of (III) ordinary statute of limitations

At the stage of convergence between the General Principles of Civil Law and the General Principles of Civil Law, with regard to the convergence of the ordinary statute of limitations, we have concluded that, in accordance with the existing legal provisions and the trial guidance of some courts, we have concluded that:

1. If the fact that the rights of the obligee are damaged occurs before September 30, 2017, if it exceeds two years from the date when the obligee knows or should know that his rights are damaged and the obligor is to October 1, 2017, the limitation of action period has expired and will not be changed due to the implementation of the General principles of Civil Law;

2. If the fact that the rights of the obligee have been damaged occurs before September 30, 2017, and it has not been more than two years from the date when the obligee knows or should know that his rights have been damaged and the obligor has not been more than two years to October 1, 2017, the General principles of Civil Law has retroactive effect, and the limitation period for requesting the people's court to protect civil rights is changed to three years.

3. If the fact that the rights of the obligee are damaged occurs after October 1, 2017, the limitation period shall apply to the three years stipulated in the General provisions of the Civil Law.

The Application of Short-term Limitation of Action in 3.

Application of short-term statute of limitations in (I)

Compared with the provisions of the ordinary statute of limitations, the law still provides for some special statutes of limitations, such as the short-term statute of limitations stipulated in the General Principles of Civil Law. Article 136 of the General Principles of the Civil Law stipulates: "The limitation period for the following actions is one year:

(1) Claims for compensation for bodily injury;

(2) The sale of substandard goods without declaration;

(3) Delaying or refusing to pay rent;

(4) The deposited property is lost or damaged.

Since the General Principles of Civil Law and the General Principles of Civil Law are still implemented in parallel, the General Principles of Civil Law no longer provide for short-term statutes of limitations. Some people think that the three-year statute of limitations in the General principles of Civil Law is only for the ordinary statute of limitations, not for the special statute of limitations, and the General principles of Civil Law has not been abolished, so the one-year statute of limitations is still applicable. Some people think that the reason why the General Principles of Civil Law is not abolished temporarily is that the contract, ownership and other property rights, civil liability and other specific contents stipulated in it still need to be applied, while the statute of limitations system is stipulated in the General Principles of Civil Law and the General Principles of Civil Law in a special chapter, and the provisions of the General Principles of Civil Law on the statute of limitations should be regarded as a comprehensive replacement of the corresponding provisions of the General Principles of Civil Law, therefore, the one-year statute of limitations will no longer apply in the future.

Referring to the guidance of the courts in Beijing and other regions on the statute of limitations, we understand that the one-year short-term statute of limitations stipulated in Article 136 of the General principles of Civil Law belongs to a clause under the chapter of statute of limitations. The General principles of Civil Law does not stipulate it in the chapter of statute of limitations, and the one-year statute of limitations period is abolished in the General principles of Civil Law. Therefore, the one-year limitation period stipulated in Article 136 of the General Principles of Civil Law shall no longer apply after the implementation of the General Principles of Civil Law. In order to avoid application disputes, the issue urgently needs to be clarified by the legislature, so as to avoid inconsistent decisions in different regions.

The Retroactive Effect of Short-term Limitation of Action in (II)

In the case of the coexistence of the General Principles of Civil Law and the General Principles of Civil Law, we believe that the convergence of the short-term statute of limitations can be confirmed by reference to the ordinary statute of limitations.

1. If the fact that the rights of the obligee are damaged occurs before September 30, 2017, if it exceeds one year from the date when the obligee knows or should know that his rights are damaged and the obligor is to October 1, 2017, the limitation of action period has expired and will not be changed due to the implementation of the General principles of Civil Law;

2. If it has not exceeded one year, the limitation period for requesting the protection of civil rights to the people's court shall be changed to three years;

3. If the fact that rights are damaged occurs after October 1, 2017, the limitation period shall apply to the three years stipulated in the General principles of Civil Law, and there will no longer be the problem of short-term limitation of action.

Application of 4. Special Limitation of Action

1. Legal provisions on the limitation of special actions

Article 188 of the General Principles of the Civil Law stipulates that the limitation period for requesting protection of civil rights from the people's court is three years. Where the law provides otherwise, such provisions shall prevail. Here are the provisions on the issue of special statutes of limitations, scattered in a number of one-way or special laws. For example:

Paragraph 1 of Article 257 of the the People's Republic of China Maritime Law: The limitation period for the right to claim compensation from the carrier for the carriage of goods by sea is one year, counting from the date on which the carrier delivers or should deliver the goods; within or after the expiration of the limitation period, if the person identified as responsible files a claim against a third party, the limitation period shall be 90 days, it shall be counted from the date on which the claimant for recovery resolves the original claim for compensation or receives a copy of the statement of complaint from the court that has accepted the lawsuit against him. Article 260 The limitation period for claims relating to a maritime towage contract shall be one year, counting from the date on which it became aware or should have become aware of the infringement of the right. Article 233 The limitation period for claims relating to the apportionment of general average shall be one year, calculated from the date of the end of the self-care calculation.

Paragraph 3 of Article 61 of the the People's Republic of China Auction Law: If the auction target is not declared due to defects, the limitation period for claiming compensation is one year, counting from the date when the parties know or should have known that their rights have been damaged.

Article 129 of the the People's Republic of China Contract Law: The time limit for bringing a lawsuit or applying for arbitration in connection with a dispute over an international contract for the sale of goods and a technology import and export contract is four years, counting from the date on which the parties knew or should have known that their rights had been infringed. The time limit for bringing a lawsuit or applying for arbitration for other contractual disputes shall be in accordance with the provisions of the relevant laws.

Article 66 of the the People's Republic of China Environmental Protection Law: The limitation period for filing a lawsuit for environmental damage compensation is three years, counting from the time when the party knew or should have known of the damage.

2, whether the special statute of limitations applies.

(1) Principle of lex specialis over lex generalis

Article 188 of the General principles of the Civil Law stipulates that if the law provides otherwise for the limitation of action, it shall be in accordance with its provisions. When the provisions of the General Principles of Civil Law on the period of limitation of action conflict with the period of special limitation of action in other laws, it should belong to the relationship between general law and special law. According to the principle that special law is superior to general law, after the implementation of the General Principles of Civil Law, the special provisions of other laws on the period of limitation of action should still be applied in priority.

(2) The principle that the new law is superior to the old law.

It is also worth exploring whether the two-year statute of limitations agreed in the special law is affected. For example, Article 62 of the Patent Law stipulates that the limitation of action for infringement of patent right shall be two years. In our view, in accordance with the principle of lex specialis over lex generalis, the two-year statute of limitations should still apply here. However, from another point of view, since the two-year statute of limitations in the special law is the same as the original ordinary statute of limitations, it is also possible to understand that the three-year statute of limitations should apply in accordance with the principle that the new law is superior to the old law (the Beijing court holds this view), and this dispute does need to be clarified by the legislature.

5. on the application of the suspension and interruption of the statute of limitations

1. Suspension of statute of limitations

(1) If the limitation period that continues to be calculated after the reason for suspending the limitation period is eliminated expires before September 30, 2017, it shall not be changed due to the implementation of the General Principles of Civil Law.

(2) If the reason for suspending the limitation period is eliminated before September 30, 2017, the limitation period that continues to be calculated after the reason for suspending the limitation period is eliminated in accordance with Article 139 of the General Principles of the Civil Law shall extend to October 1, 2017. If the reason for suspending the limitation period is eliminated after October 1, 2017, six months shall expire from the date when the reason for suspending the limitation period is eliminated, and the limitation period shall expire; however, if the expiration date is later than the expiration date of the above-mentioned six months, the limitation period shall be calculated to the expiration date.

2. Interruption of the statute of limitations

(1) If the limitation of action is interrupted before September 30, 2017, the limitation of action period shall be recalculated by two years, but if the limitation of action has exceeded from the date of recalculation to October 1, 2017, it shall not be changed due to the implementation of the General provisions of the Civil Law.

(2) If the interruption of the limitation of action occurs before September 30, 2017, the limitation of action period shall be recalculated by two years, but if the period of limitation of action has not exceeded two years from the date of recalculation to October 1, 2017, the limitation of action period shall be extended to three years; The interruption and termination of relevant procedures occurred after October 1, 2017, and the limitation of action period shall be recalculated by three years.

The above is the author's simple summary analysis of the statute of limitations. There are still many controversial issues. There is an urgent need for the legislature, the Supreme Court and local courts to give clear opinions, and lawyers need to understand and analyze in depth, so as to give the parties the right to the statute of limitations. Guidance, to avoid the impact of the statute of limitations on the right to win a case.