Legal elements
(1) Legal requirements
The elements of limitation of action refer to the applicable elements of limitation of action.
1. There must be a claim. Limitation of action is a restriction on the right of claim. Without the right of claim, it is impossible to apply the statute of limitations.
There must be the fact that you are lazy to exercise your rights. The limitation of action is to urge the obligee, in fact, to protect the obligor. If the obligee slowly exercises his rights within a certain period of time, and there is no other reason to interrupt or suspend the limitation of action, it will take legal effect.
The fact that you are lazy to exercise your rights persists, which leads to the expiration of the limitation period. Expiration is sometimes called the end of the limitation of action and the completion of the limitation of action. When the limitation of action expires, the obligee's right to win the case will automatically disappear. If there is a fact that the limitation of action is interrupted or suspended, the limitation of action can be "extended", that is, it can be recalculated when it is interrupted, and it can be continued after the suspension period is lifted when it is suspended.
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Characteristics of limitation of action:
(1) The limitation of action is not controlled by the will of the parties, and the event of extinction of rights can occur.
(2) The limitation of action is mandatory and shall not be agreed or stipulated by the parties themselves.
(3) The effectiveness of limitation of action is the combination of period and fact.
(4) The limitation of action only applies to claims, not all claims, such as claims for real rights.
(5) The judge has no right to actively explain and apply the prescription, which requires the parties to propose the starting point of the prescription, that is, the starting point of the prescription period, starting from the date when the obligee knows or should know that its rights have been infringed, that is, from the date when the obligee can exercise the right of claim.
Interruption during the limitation of action
Interruption of the limitation of action means that during the limitation of action, due to certain legal reasons, the limitation of action expires and is invalid. After the reasons for the interruption of the limitation of action are eliminated, the limitation of action starts again.
Legal reasons for the interruption during the litigation: 1. The obligee filed a lawsuit. 2. The obligee claims rights. 3. The debtor agrees to perform its obligations.
First of all, the General Principles of Civil Law regards prosecution as the reason for the interruption of the limitation of action. According to the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Prescription System in the Trial of Civil Cases", in any of the following circumstances, the people's court shall determine that it has the same effect as bringing a lawsuit: applying for arbitration; Apply for a payment order; Apply for bankruptcy and apply for bankruptcy claims; Apply for declaring the debtor missing or dead to claim rights; Apply for pre-litigation measures such as pre-litigation property preservation and pre-litigation temporary injunction; Apply for enforcement; Apply for additional parties or be notified to participate in litigation; Advocate offset, etc. In the lawsuit. Secondly, if the obligee requests the people's mediation committee and other state organs, institutions, social organizations and other organizations that have the right to resolve relevant civil disputes according to law, the limitation of action will be interrupted. Third, if the obligee reports or complains to the public security organ, the people's procuratorate or the people's court and requests to protect his civil rights, the limitation of action will be interrupted.
When will the statute of limitations be interrupted? According to Article 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases, if a party submits a complaint or oral prosecution to the people's court, the limitation of action will be interrupted from the date of submission of the complaint or oral prosecution. Article 14 stipulates that the limitation of action shall be interrupted from the date when the obligee makes a request to the people's mediation committee and other social organizations that have the right to resolve relevant civil disputes according to law. Article 15 stipulates that if the obligee reports or complains to the public security organ, the people's procuratorate or the people's court and requests to protect his civil rights, the limitation of action shall be interrupted from the date of reporting or complaining. Article 19 stipulates that if the creditor's rights are transferred, the limitation of action shall be deemed to be interrupted from the date when the notice of creditor's rights transfer is served on the debtor. If the debt commitment constitutes the original debtor's acknowledgement of the debt, the limitation of action shall be deemed to be interrupted from the date when the intention of the debt commitment reaches the creditor.
Suspension of the limitation period of action
Suspension of the limitation of action refers to the suspension of the calculation of the limitation of action because the obligee cannot exercise the right of claim for certain legal reasons. Article 139 of the General Principles of the Civil Law stipulates: "In the last six months of the limitation of action, if the right of claim cannot be exercised due to force majeure or other obstacles, the limitation of action shall be suspended."
Pause condition
1. The suspension of the limitation of action must be for legal reasons. Legal reason: 1, force majeure. 2. The infringed person with no capacity for civil conduct or with limited capacity for civil conduct has no legal representative, or the legal representative dies, loses his power of agency or loses his capacity for conduct. 3. There is no heir or estate manager after the beginning of inheritance. 4. The creditor is controlled by the debtor or others and cannot exercise his rights.
2. If the statutory cause occurred within the last six months of the limitation of action, it occurred before the last six months (the limitation of action) but did not disappear until the last six months, it has the effect of suspending the limitation of action.
3. The period that passed before the suspension of the limitation of action shall be combined with the period that continued after the reasons for the suspension of the limitation of action disappeared. However, the time course of suspension is not included in the limitation period. Therefore, the civil law regards the suspension of the limitation of action as a temporary obstacle to the completion of the limitation of action.
After the reasons for the suspension of the limitation of action are eliminated, the effectiveness of the suspension of the limitation of action in China continues to be calculated. The limitation of action that has been executed before the suspension is still valid. After the legal reasons for suspension are eliminated, the limitation period of action previously calculated shall continue to be calculated until it expires.
4. If the cause of suspension occurs before the last six months of the limitation of action, but it still exists until the last six months, the limitation of action shall be suspended in the last six months (note: in this case, the limitation of action cannot be suspended when the cause of suspension occurs).
Extension of limitation period of action
The extension of the limitation of action refers to the extension of the completed limitation of action by the court due to special circumstances.
Object of extension: General limitation period, special limitation period and longest limitation period can be extended.
Conditions for extension: 1, and the limitation of action expires. 2. It is justified for the obligee not to exercise his rights during the limitation of action. 3. Whether to postpone is decided by the court. 4, decided to extend the period must be appropriate.
The just cause here refers to force majeure, and according to the provisions of Article 137 of the General Principles of Civil Law of People's Republic of China (PRC) and the General Principles of Civil Law of People's Republic of China (PRC), the limitation of action is calculated from the time when you know or should know that your rights have been violated. However, if more than 20 years have passed since the right was infringed, the people's court will not protect it. Under special circumstances, the people's court may extend the limitation of action. Article 169 of the People's Opinions stipulates that it is a "special case" stipulated in Article 137 of the General Principles of the Civil Law that the obligee cannot exercise the right of claim during the statutory limitation period due to objective obstacles.
Scope of application of statute of limitations
According to the current law of our country, the limitation of action only applies to the creditor's rights in real right. Therefore, the following rights are not limited by the statute of limitations:
1. The right to claim individual rights
2. Property control: including property rights and intellectual property rights.
3. Right to defense
4. Right of formation
5. The right to claim the principal and interest of the deposit has the particularity of no specific performance period, and the depositor can request the financial institution to pay at any time. If the limitation of action is applied, it will affect the people's survival interests and have a far-reaching impact on the people's survival interests, which is not in line with the characteristics of this law, so the deposit principal and interest are not applicable.
6. Subscribers purchase creditor's rights based on their trust in the country and financial institutions, and their investment is similar to savings, so the statute of limitations should not be applied to the payment system creditor's rights generated by national debt and financial debt.
7. The claim for capital contribution based on capital contribution is not limited by the limitation of action, mainly considering that sufficient capital is the guarantee for enterprises to carry out foreign business activities and also the guarantee for foreign civil liability. It is also the legal obligation of the company to make full capital contribution, and the claim for capital contribution should not be limited by the statute of limitations, otherwise it will violate the principle of capital adequacy of the company.
8. If the limitation of action is applied to the claim of real right, the property that is occupied by others beyond the limitation of action will become ownerless.
However, we should pay special attention to the fact that after personal rights, property rights and intellectual property rights are infringed, the right of the obligee to claim damages from the other party is limited by the limitation of action because it is a creditor's right.
legal provision
1.(1) General Principles of the Civil Law Article 136 The limitation of action is one year:
(1) Requesting compensation for personal injury;
(two) the sale of substandard goods has not been declared.
(3) delaying or refusing to pay the rent;
(4) Loss of or damage to the property in escrow.
(2) Paragraph 1 of Article 257 of the Maritime Law claims compensation from the carrier for the carriage of goods by sea, and the limitation period is one year, counting from the date when the carrier delivered or should have delivered the goods; During or after the expiration of the limitation period, if the responsible person makes a claim for compensation to a third party, the limitation period shall be 90 days, counting from the date when the claimant solves the original claim for compensation or receives a copy of the complaint from the court that accepted his lawsuit.
(3) Article 260th of the Maritime Law stipulates that the limitation period for claims related to maritime towage contracts is one year, counting from the day when you know or should know that your rights have been infringed.
(4) The limitation period for the claim for contribution in general average in Article 263 of the Maritime Law is one year, counting from the date when the self-care calculation ends.
⑤ If the third paragraph of Article 61 of the Auction Law fails to declare due to defects in the auction target, the limitation period for claiming compensation is one year, counting from the day when the parties know or should know that their rights have been damaged.
2.① Article 135 of the General Principles of the Civil Law requires the people's court to protect civil rights for two years, unless otherwise provided by law.
(II) the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Contract Law of People's Republic of China (PRC) (1) Article 6 If the fact that the rights of the parties to a technology contract dispute were infringed occurred before the implementation of the contract law, and more than one year passed from the date when the parties knew or should have known that their rights were infringed to the date when the contract law was implemented, the people's court shall not protect them; If it is less than one year, the limitation period for bringing a lawsuit is two years.
Article 62 of the Patent Law has a limitation of action of two years, counting from the date when the patentee or interested party knows or should know about the infringement. If the patentee fails to pay the appropriate royalty before the patent right is granted after the publication of the application for a patent for invention, the limitation period for requesting the royalty is two years, counting from the date when the patentee knows or should know that others are using his invention. However, if the patentee knows or should know before the patent right is granted, it shall be counted from the date when the patent right is granted.
The limitation of action stipulated in China's patent law is 2 years, Germany is 6 years, and the United States and Japan are 3 years. Trips does not specify the limitation of patent litigation, but article 4 1-50 stipulates that the time for customs to take temporary measures is 20 working days or 3 1 calendar days.
European countries have special patent infringement courts. The courts in Britain (London), the Netherlands (The Hague), Germany (especially Dusseldorf), France (Paris) and Italy (12) specialize in dealing with intellectual property affairs, located in Bari, Bologna, Catania, Florence, Genoa, Milan, Naples, Palermo, Rome, Turin and Trieste respectively. The procedures in Britain, Germany and the Netherlands are considered to be faster. For example, a patent can be granted in the Netherlands within one year; In Britain, patent trials usually last 9- 12 months from the beginning of the procedure. On the contrary, in France, the patent trial usually lasts 12- 18 months from the beginning of the procedure, and the decision is made within six weeks after the trial. Patent trials in Italy may take years.
(4) Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes Article 18 The limitation period for infringement of the exclusive right to use a registered trademark is two years, counting from the date when the trademark registrant or interested party knows or should know about the infringement. Where a trademark registrant or interested party files a lawsuit for more than two years, and the infringement continues when the lawsuit is filed, the people's court shall order the defendant to stop the infringement within the validity period of the exclusive right to use a registered trademark, and the amount of compensation for infringement damages shall be calculated forward for two years from the date when the obligee files a lawsuit with the people's court.
⑤ Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes Article 28 The limitation period for copyright infringement is two years, counting from the date when the copyright owner knows or should know about the infringement. If the obligee has filed a lawsuit for more than two years and the infringement continues at the time of prosecution, the people's court shall order the defendant to stop the infringement within the copyright protection period; The amount of compensation for infringement damages shall be calculated for two years from the date when the obligee brings a lawsuit to the people's court.
⑥ In the first paragraph of Article 32 of the State Compensation Law, the limitation period for the claimant to claim state compensation is two years, counting from the date when the act of state organs and their staff exercising their functions and powers is deemed illegal according to law, but the detention period is not counted.
⑦ The limitation period for the claim for voyage charter party in Paragraph 2 of Article 257 of Maritime Law is two years, counting from the day when you know or should know that your rights have been infringed.
(8) Article 258 of the Maritime Law stipulates that the limitation period for claiming compensation from the carrier for the carriage of passengers by sea is two years, calculated in accordance with the following provisions:
(1) The passenger's claim for personal injury shall be counted from the day when the passenger disembarked or should disembark;
(2) If the claim for the death of a passenger occurred during the period of transportation, it shall be counted from the date when the passenger should leave the ship; If a passenger dies after disembarking due to injury during transportation, it shall be counted from the date of the passenger's death, but the period shall not exceed three years from the date of disembarkation.
(3) Claims for loss of or damage to luggage shall be counted from the date when the passenger disembarked or should disembark.
Pet-name ruby Article 259 of the Maritime Law The limitation of action is two years, counting from the day when you know or should know that your rights have been infringed.
Attending Article 261 of Maritime Law, the limitation period for the right of claim for ship collision is two years, counting from the date of the collision accident; The limitation period of the right of recourse stipulated in the third paragraph of Article 169 of this Law is one year, counting from the date when both parties jointly pay the compensation.
○ 1 1 Maritime Law Article 262 The limitation period for claims for salvage at sea is two years, counting from the date of termination of salvage operations.
○ 12 article 264 of the maritime code stipulates that the limitation period for claiming insurance compensation from the insurer in accordance with the marine insurance contract is two years, counting from the date of the insured accident.
○ 13 product quality law article 45 the limitation of action for claiming damages due to product defects is two years, counting from the time when the parties know or should know that their rights and interests have been harmed.
The right to claim compensation for damage caused by defective products shall be lost ten years after the defective products that caused the damage were delivered to the original consumers; However, in addition to the express safe use period.
3.① The limitation period for the claim for oil pollution damage from ships in Article 265 of Maritime Law is three years, counting from the date of damage; However, in any case, the limitation period shall not exceed six years from the date of the accident causing the damage.
(2) Article 42 of the Environmental Protection Law stipulates that the limitation period for bringing a lawsuit for compensation for environmental pollution damage is three years, counting from the time when the party concerned knows or should know that it has suffered pollution damage.
4. the Supreme People's Court's Interpretation of Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law (1) Article 7 If the fact that the rights of the parties to a technology import and export contract dispute were infringed occurred before the implementation of the contract law, and more than two years passed from the date when the parties knew or should have known that their rights were infringed to the date when the contract law was implemented, the people's court shall not protect them; If it is less than two years, the limitation period for bringing a lawsuit is four years.
5. the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China Article 42 If a citizen, legal person or other organization does not know the contents of a specific administrative act made by an administrative organ, the time limit for prosecution shall be counted from the day when he knows or should know the contents of the specific administrative act. If a specific administrative act involving real estate has been made for more than 20 years, or if other specific administrative acts have been made for more than 5 years, the people's court will not accept it.
6. Article 137 of the General Principles of the Civil Law states that the limitation of action shall be counted from the time when one knows or should know that one's rights have been infringed. However, if more than 20 years have passed since the right was infringed, the people's court will not protect it. Under special circumstances, the people's court may extend the limitation of action.
(2) "the Supreme People's Court on the implementation of
In addition, there is a concept called "predetermined period", which refers to litigation rights before the limitation of action. This concept mainly refers to substantive rights, that is, the law stipulates that some of your substantive rights exist for a fixed period, such as:
"the Supreme People's Court on implementation
Article 55 of the Contract Law: "In any of the following circumstances, the right of cancellation shall be extinguished: (1) The party to the right of cancellation has not exercised the right of cancellation within one year from the date when he knew or should have known the reason for cancellation; (2) After knowing the reasons for the cancellation, the parties to the cancellation right clearly express or give up the cancellation right by their own actions. "
Article 25 of the Inheritance Law: "The legatee shall, within two months after learning of the legacy, make an indication of accepting or giving up the legacy. If it is not indicated at the expiration, it will be deemed as giving up the legacy. "
Article 11 of the Marriage Law stipulates: "If a marriage is coerced, the coerced party may request the marriage registration authority or the people's court to cancel the marriage. If the coerced party requests to dissolve the marriage, it shall do so within one year from the date of marriage registration. If the party whose personal freedom is illegally restricted requests to dissolve the marriage, it shall do so within one year from the date of restoring personal freedom. "
Article 15 of the Notice of the Supreme People's Court on the Interpretation of Several Issues Concerning the Trial of Railway Transport Damage Compensation Cases stipulates: "The provisions of the Regulations on Railway Transport on 180 days shall apply to the limitation period for claiming compensation from railway transport enterprises when goods, parcels and luggage are lost in transit or overdue. Starting from the day after delivery by the railway transport enterprise; All the goods, parcels and luggage are lost, counting from the day after the 30th day after the expiration of the delivery period. However, if the loss has been confirmed during this period or during the delivery period, it will be calculated from the day after the railway transport enterprise submits the freight record. "