What the? Is it possible to apply for enforcement of effective legal instruments that may "expire"? Yes, you read that right. According to the provisions of the Civil Procedure Law, the period for applying for enforcement is two years. The question is, how to calculate the statute of limitations for applying for enforcement, under what circumstances will it be suspended or interrupted, and what are the legal consequences if the statute of limitations for applying for enforcement is exceeded? This article explains the relevant legal provisions in detail by using a case study.
The plaintiff Xiaolin sued the defendant Xiao Huang and the third party Xiao Zhang to the court due to a dispute over the house sale contract, and then reached an agreement through court mediation, and the court issued a mediation letter to confirm that the house sale contract between Xiao Lin and Xiao Huang was terminated, and Xiao Huang returned Xiao Lin the purchase price and interest of 2.2 million yuan, paid in installments, and the last installment was paid before December 31, 2016. Due to Xiao Huang's failure to fulfill his repayment obligations, Xiao Lin applied to the court for enforcement on November 16, 2020. During the enforcement process, Xiao Huang raised an enforcement objection to the court, arguing that the enforcement application filed by Xiao Lin had exceeded the two-year limitation period, and requested the court not to enforce the enforcement case applied by Xiao Lin.
During the objection review process, in order to prove that there was a suspension of the statute of limitations for the execution of the application, Xiao Lin submitted the repayment plan issued by Xiao Zhang, Xiao Zhang's ICBC passbook, and screenshots of his WeChat chat with Xiao Zhang. Xiao Huang said that he was not aware of the above evidence submitted by Xiao Lin, and believed that Xiao Lin had never claimed a claim against him.
After review, the court held that the last day of the performance period determined by the effective legal documents in this case was December 31, 2016, and the time for Kobayashi to apply to the court for enforcement was November 16, 2020, which had exceeded the limitation period for applying for enforcement. In order to prove that there was an interruption in the statute of limitations for applying for enforcement in this case, Xiao Lin submitted to the court evidence such as the repayment plan issued by the third party, Xiao Zhang, and the screenshots of his WeChat with Xiao Zhang. However, Xiao Huang did not accept the purpose of the above evidence, stating that Xiao Lin had never claimed creditor's rights against him, and Xiao Zhang had never conveyed to him Xiao Lin's intention to require him to perform his repayment obligations.
The court held that the creditor established on the basis of enforcement in this case was Xiao Lin and the debtor was Xiao Huang. The circumstances in which Xiao Lin claims creditor's rights against Xiao Zhang, a third party, and Xiao Zhang's agreement to repay the loan on behalf of Xiao Huang are not grounds for applying for suspension or interruption of the statute of limitations. Therefore, Xiao Huang's objection is based on the law and should be supported, and it should be ruled not to enforce the enforcement case of Xiao Lin's application.
After the ruling was made, Kobayashi was not satisfied and filed an application for reconsideration with the Intermediate Court. After review, the Intermediate People's Court rejected Kobayashi's application for reconsideration and upheld the first-instance enforcement ruling.
What the judge said:1The period and commencement of the application for the limitation period for enforcement.
Many people are familiar with the concept of statute of limitations, but they are not clear about the provisions of the statute of limitations for applying for enforcement. The statute of limitations for applying for enforcement is similar to the statute of limitations, that is, to make the right holder who is negligent in exercising his rights lose the benefits of the claim to a certain extent, so as to prompt him to exercise his rights in a timely manner. According to the first paragraph of Article 246 of the Civil Procedure Law, the time limit for applying for enforcement is two years. Where an application is made for the suspension or interruption of the statute of limitations, the provisions on the suspension or interruption of the statute of limitations shall be applied in accordance with the law. In the above-mentioned case, the last day of the performance period specified in the effective legal documents was December 31, 2016, and Kobayashi applied to the court for enforcement after nearly four years, which had already exceeded the statute of limitations for applying for enforcement under the law. Kobayashi failed to provide evidence to prove that there was a suspension or interruption of the statute of limitations for applying for enforcement, so the court finally ruled not to enforce his application for enforcement.
In addition to understanding the time limit for applying for enforcement, it is also necessary to understand how the limitation period for applying for enforcement begins. According to the second paragraph of article 246 of the Civil Procedure Law, the period for applying for enforcement is calculated from the last day of the period for performance as provided in the legal document; Where legal documents provide for performance in installments, it is calculated from the date on which the last period for performance expires; Where the legal document does not provide for a period of performance, it is calculated from the date on which the legal document takes effect. According to Article 21 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Enforcement Procedures of the Civil Procedure Law of the People's Republic of China, if the effective legal document stipulates that the debtor has an obligation to refrain from acting, the limitation period for applying for enforcement shall be calculated from the date on which the debtor violates the obligation of omission. In the above-mentioned case, the effective legal documents determined that Xiao Huang had the obligation to perform in installments, and the period for applying for enforcement was calculated from the date of the expiration of the last period for performance.
2.Circumstances in which the statute of limitations for enforcement is suspended or interrupted.
The statute of limitations for applying for enforcement is not fixed, and if there are statutory circumstances, it may be suspended or interrupted.
The suspension of the statute of limitations for applying for enforcement is the "suspension" of the statute of limitations, and the statute of limitations for applying for enforcement will continue to be calculated after the reason for the suspension of the statute of limitations is eliminated. According to Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Enforcement Procedures of the Civil Procedure Law of the People's Republic of China, if the right to request cannot be exercised due to force majeure or other obstacles within the last six months of the limitation period for applying for enforcement, the statute of limitations for applying for enforcement shall be suspended. From the date on which the reasons for the suspension of the statute of limitations are eliminated, the period of limitation for the enforcement of the application shall continue to run. According to Article 194 of the Civil Code, "other obstacles" generally refer to: (1) 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 his rights; (2) The heir or estate administrator has not been determined after the commencement of the inheritance; (3) the right holder is controlled by the obligor or other person; (4) Other obstacles that prevent the right holder from exercising the right to claim.
In the event of a statutory cause, the statute of limitations for applying for enforcement will be interrupted, and the statute of limitations will be recalculated after the interruption. According to Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Enforcement Procedures of the Civil Procedure Law of the People's Republic of China, the statute of limitations for applying for enforcement is interrupted by the application for enforcement, the parties reach a settlement agreement, and one of the parties submits a request for performance or agrees to perform its obligations. From the time of interruption, the limitation period for the execution of the application is recalculated. According to Articles 11, 16 and 17, Paragraph 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Enforcement Procedures of the Civil Procedure Law of the People's Republic of China, a party applies for a payment order, applies for bankruptcy, declares bankruptcy claims, applies for a declaration of the disappearance or death of the obligor for the purpose of asserting rights, applies for pre-litigation property preservation, pre-litigation temporary injunctions and other pre-litigation measures, initiates a subrogation lawsuit, assigns creditor's rights, and claims set-off in a separate case. The people's court shall find that it has the same effect as the application for enforcement to interrupt the statute of limitations for the application for enforcement. According to Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Enforcement Procedures of the Civil Procedure Law of the People's Republic of China, where an obligor makes a promise or act such as performing in installments, performing partially, providing a guarantee, requesting an extension of performance, or formulating a debt repayment plan, it shall be deemed that "the obligor agrees to perform the obligation" as provided for in Article 195 of the Civil Code.
In the above-mentioned case, Xiao Lin argued that his request for performance to the third party, Xiao Zhang, and Xiao Zhang's issuance of a repayment plan to Xiao Lin, should have the effect of applying for the suspension of the statute of limitations. However, after examination, the court held that the creditor established in the effective legal documents was Xiao Lin and the debtor was Xiao Huang, and that Xiao Lin's claim against the third party, Xiao Zhang, and Xiao Zhang's agreement to repay the loan on behalf of Xiao Huang were not statutory reasons for the suspension or interruption of the statute of limitations for applying for enforcement, so it did not determine that the statute of limitations for applying for enforcement was interrupted.
In practice, the following circumstances may be found to be "a request for performance by one of the parties":(1) one party directly sends a document claiming rights to the other party, and the other party signs, seals, or fingerprints the document, or can prove that the document has reached the other party in other ways despite not signing, sealing, or fingerprinting; (2) One of the parties asserts rights by sending a letter or data message, and the letter or data message arrives or should reach the other party; (3) Where one of the parties is a financial institution, and the principal and interest of the arrears are deducted from the account of the other party in accordance with the provisions of law or the agreement of the parties; (4) Where the whereabouts of one of the parties are unknown, and the other party publishes an influential announcement with the content of the claim of rights at the national level or at the provincial level where the party is unaccounted for is unknown, but there are other special provisions in laws and judicial interpretations, those provisions shall apply. In the circumstances of item (1) of the preceding paragraph, where the opposing party is a legal person or other organization, the signatory may be its legal representative, principal responsible person, department responsible for sending and receiving letters, or authorized entity; Where the other party is a natural person, the signatory may be the natural person himself/herself, a relative with full capacity for conduct living with the person, or an authorized entity.
3.How to deal with the expiration of the application limitation period.
If the two-year statute of limitations has expired at the time of the application for enforcement, will the court still accept the application for filing the case? Yes. According to Article 481 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, "if the person applying for enforcement applies to the people's court for compulsory enforcement beyond the limitation period for applying for enforcement, the people's court shall accept it. "Where the person subject to enforcement does not raise an objection to the application for the statute of limitations, the people's court shall not explain the issue of the statute of limitations for applying for enforcement and take the initiative to apply the provisions on the statute of limitations for applying for enforcement, and rule to terminate the enforcement procedure. If the person subject to enforcement believes that the applicant for enforcement has exceeded the statute of limitations, he may file an objection with the court. Article 481 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates that: "If the person subject to enforcement raises an objection to the limitation period for applying for enforcement, and the people's court sustains the objection after examination, it shall rule not to enforce it. Where, after the person subject to enforcement has performed all or part of his obligations, he requests a reversal of enforcement on the grounds that he does not know that the statute of limitations for applying for enforcement has expired, the people's court will not support it. ”
Through the above cases, the judge hereby reminds that: first, the application for enforcement is time-barred, and the exercise of rights should be timely. The law does not protect a person who sleeps on his right, and the period for applying for enforcement is two years. After the legal document takes effect, the obligee shall claim its rights against the obligor in a timely manner and require the other party to perform the obligations set forth in the legal document. If the other party refuses to perform, it may apply to the people's court for compulsory enforcement in a timely manner to ensure that its substantive rights can be implemented. Do not suffer the adverse consequences of non-enforcement due to negligence in exercising your rights.
Second, the right holder should leave a trace of the performance request. Where an application is made for the suspension or interruption of the statute of limitations, the provisions on the suspension or interruption of the statute of limitations shall be applied in accordance with the law. When asserting rights against the obligor, the right holder should remember to retain the evidentiary materials for making the claim, such as relevant written communication documents, mailing documents, text messages or WeChat communication records, etc., and in the event of a dispute in the future, evidence can be provided to prove that there is a suspension or interruption of the application for enforcement of the statute of limitations.
Third, if the person subject to enforcement has any objections, he may raise them. According to the relevant laws and regulations, the court does not take the initiative to interpret the issue of the statute of limitations for applying for enforcement. If, as the person subject to enforcement, it is considered that the application of the applicant for enforcement has exceeded the statute of limitations for applying for enforcement, it may raise an objection through the enforcement objection procedure, and the court will review and determine it. However, it should be noted that if the person subject to enforcement expresses his intention to perform his obligations and then raises an objection on the grounds that the statute of limitations for applying for enforcement has expired, the people's court will not support it. Where, after the person subject to enforcement has performed all or part of his obligations, he requests a return on the grounds that he did not know that the statute of limitations for applying for enforcement had expired, the people's court will not support it.
The names of the characters in this article have been changed).
Wen Haidian Court Yang Yang.