1. Relevant provisions on the statute of limitations.
Legal basis: Article 188 of the Civil Code of the People's Republic of China stipulates that the statute of limitations for filing a request to the people's court for protection of civil rights is three years. Where the law provides otherwise, follow those provisions.
The limitation period is calculated from the date on which the right holder knows or should know that the right has been damaged and the obligor. Where the law provides otherwise, follow those provisions.
However, if more than 20 years have elapsed since the date on which the rights were infringed, the people's courts will not grant protection, and where there are special circumstances, the people's courts may decide to extend the rights holder on the basis of the right holder's application.
Summary:
1.Under normal circumstances, the statute of limitations is three years (starting from the date on which the right holder knows or should know that the right has been infringed and the obligor).
2.In exceptional cases, the maximum statute of limitations is 20 years (from the date on which the rights were infringed).
3.If the civil rights holder does not exercise its rights within the statutory limitation period, after the expiration of the limitation period, the debtor obtains the right to defend against the statute of limitations, and the rights and interests of the creditor's rights may be lost.
2. What are the circumstances in which the statute of limitations is not applicable?
Article 196 of the Civil Code of the People's Republic of China The statute of limitations does not apply to the following claims:
1) Request to stop the violation, remove the obstruction, or eliminate the danger;
2) The right holder of the immovable property right and the registered movable property right requests the return of the property;
3) Request for payment of child support, alimony, or alimony;
4) Other claims for which the statute of limitations does not apply in accordance with law.
3. Commencement of the statute of limitations.
Legal basis: Article 188:The statute of limitations period is calculated from the date on which the rights holder knows or should have known that the rights have been harmed and that the obligor has been harmed. Where the law provides otherwise, follow those provisions.
However, if more than 20 years have elapsed since the date on which the rights were infringed, the people's courts will not grant protection, and where there are special circumstances, the people's courts may decide to extend the rights holder on the basis of the right holder's application.
Article 189:Where the parties agree to perform the same debt in installments, the statute of limitations period is calculated from the date on which the last period for performance is completed.
Article 190:The statute of limitations for persons who lack or have limited capacity for civil conduct to make claims against their legally-prescribed persons is calculated from the date on which the legally-prescribed ** person terminates.
Article 191:The statute of limitations for the right to claim damages for minors suffering ** harm is calculated from the date on which the victim reaches the age of 18.
Article 189:Where the parties agree to perform the same debt in installments, the statute of limitations period is calculated from the date on which the last period for performance is completed.
Provisions on the Commencement of the Statute of Limitations in the Judicial Interpretation of the Statute of Limitations (adopted at the 1823rd meeting of the Adjudication Committee of the Supreme People's Court on December 23, 2020) 03. Where a contract does not stipulate a time limit for performance, where the period for performance can be determined in accordance with the provisions of Articles 510 and 511 of the Civil Code, the limitation period is calculated from the date of expiration of the period for performance;If the time limit for performance cannot be determined, the limitation period shall be calculated from the date of expiration of the grace period for the creditor to require the debtor to perform its obligations, but if the debtor clearly indicates that it will not perform its obligations when the creditor claims its rights against it for the first time, the limitation period shall be calculated from the date on which the debtor clearly indicates that it will not perform its obligations.
Summary:
1.Where the contract is performed in installments, the limitation period is calculated from the date on which the last period for performance expires.
2.The statute of limitations period for a person who lacks or has limited capacity for civil conduct shall be calculated from the date of termination of the statutory ** (e.g., over the age of 18) of a person with no or limited capacity for civil conduct against his or her statutory ** person (e.g., a 12-year-old minor to his parents).
3.Where a minor suffers a ** harm, the statute of limitations for his right to claim damages is calculated from the date on which the victim reaches the age of 18.
4. How to avoid the expiration of the statute of limitations.
Article 194 of the Civil Code of the People's Republic of China: Where the right to claim cannot be exercised due to the following obstacles within the last six months of the statute of limitations, the statute of limitations is suspended:
a) Force majeure;
2) A person who lacks or has limited capacity for civil conduct does not have a statutory person, or a person who is legally required to die, lose civil capacity, or lose rights;
3) The heirs or administrators of the estate have not been determined after the commencement of the inheritance;
4) The right holder is controlled by the obligor or other person;
5) Other obstacles that make it impossible for the right holder to exercise the right to make a claim.
The statute of limitations expires six months from the date on which the reasons for the suspension of the statute of limitations are eliminated.
Article 195:In any of the following circumstances, the statute of limitations is interrupted, and the statute of limitations period is recalculated from the time of the interruption or the conclusion of the relevant procedures:
1) The obligee submits a request for performance to the obligor;
2) The obligor agrees to perform the obligation;
3) The right holder initiates a lawsuit or applies for arbitration;
Other circumstances that have the same effect as filing a lawsuit or applying for arbitration.
Article 193:People's courts must not actively apply the statute of limitations.
Article 197: "The period of the statute of limitations, the method of calculating it, and the reasons for suspension or interruption shall be prescribed by law, and the agreement of the parties shall be invalid. The parties' prior waiver of the interest in the statute of limitations is invalid. ”
Summary:
1.The interruption of the statute of limitations can only occur during the period of limitation for action, and there is no room for the interruption of the statute of limitations after the expiration of the limitation period.
2.If the statute of limitations is interrupted by sending a repayment reminder letter to the debtor in writing or filing a lawsuit, the statute of limitations can be recalculated after the interruption (remember that evidence must be retained for the reminder).
3.The statute of limitations is prescribed by law, and the parties may not make an agreement on their own. The statute of limitations agreed upon by the parties is not protected by law.
4. The suspension provided for in Article 194 of the Civil Code of the People's Republic of China is a recalculation of 6 months, not a statute of limitations of 3 years or more.
5. How to remedy the expiration of the statute of limitations.
The law provides: Article 192:Where the statute of limitations for litigation is complete, the obligor may raise a defense of non-performance of the obligation.
After the expiration of the statute of limitations, if the obligor agrees to perform, it must not be defended on the grounds that the statute of limitations has expired;Where the obligor has already voluntarily performed it, it must not be returned.
Article 193:People's courts must not actively apply the statute of limitations.
Summary:
1.Although the statute of limitations expires and the obligor may refuse to perform his obligations, the right itself and the right to claim are not extinguished.
Where a party initiates a lawsuit after the statute of limitations has expired, the people's court shall accept it. After acceptance, if the other party raises a defense of the statute of limitations and it is ascertained that there is no reason for suspension, interruption, or extension, the judgment shall reject the litigation claim.
If the other party fails to raise a defense of the statute of limitations, it shall be deemed that it has voluntarily waived the right, and the court shall not take the initiative to apply the statute of limitations ex officio, and shall accept and support its claim.
2.After the statute of limitations has elapsed, the parties may interrupt the statute of limitations by urging the debtor to repay the loan or requiring it to confirm the repayment.
The occurrence of these circumstances can be regarded as the debtor's acknowledgment of the debt:
1) The debtor admits the money, but says that there is no money to repay it at present;
2) After voluntarily fulfilling an obligation, he repents;
3) The debtor sends a request to the creditor for partial relief of the debt.
After the general debtor admits the debt, it can no longer defend the issue of statute of limitations.