Study On Obstacles To Completion Of Limitation Of Action

Obstacles to completion of limitation of action refers to that limitation of action cannot be completed according to original limitation of time due to occurrence of certain legal particulars of a matter during the period of limitation of action. Obstacles to completion of limitation of action include interruption, suspension, incompletion and extension of limitation of action four kinds, the paper including four chapters to discuss. Chapter one discussed concerning problems of interruption of limitation of action. Limitation of time refers to that certain state of facts placidly lasts a period of time and therefore generates certain legal effects. During limitation of action, the state of facts that placidly lasts a period of time and generates legal effects is state of facts that the obligor refuses to carry out obligations rather than state of facts that the obligee does not carry out rights. If obligor agrees to carry out obligations, obligee needs not carry out rights; when obligee keeps carrying out rights and obligor keeps refusing, the original state that existence of rights and obligations brings about limitation of time remains unchanged. Therefore, the theoretical foundation of interruption of limitation of action is to change the idea that limitation of action is interrupted and re-counted until the occurrence of legal particulars of the matter that obligor refuses to carry out obligations. The request of one party concerned to another party concerned, that is, request of obligee shall not interrupt limitation and re-count it. Because request of obligee and refusal of obligor does not change state of facts that obligor refuse to carry out obligations; it does not conform to the purpose of stabilizing original economic order with establishment of limitation of action, neither; obligee keeps carrying out rights and obligor keeps refusing. This will easily intensify conflicts between parties concerned; request of one party may be interrupted. This may help law-beakers to evade legal liabilities and lead to illegal acts of misappropriation of national and collective property in name of request interruption; most countries do not provide regulations that request can interrupt limitation. Therefore, request of one party shall not interrupt limitation and re-count it. Litigation shall not interrupt limitation and re-count it, neither. Two results of litigation are as follows: first, the court makes valid entity judgment concerning rights and obligations between parties concerned; second, the court does not make valid entity judgment concerning rights and obligations between parties concerned, dismisses the litigation or the plaintiff draws back litigation. Under these circumstances, obligee can propose litigation again. If the first result appears, enforcement procedures must begin. The one-year or half-year enforcement limitation prescribed in civil litigation law is not limitation of action and shall not be interrupted. After entity judgment, limitation of action has to be suspended and it is unnecessary to be interrupted. The occurrence of the second result is caused by personal factors of obligee. The law shall not pay special attention to his right of punishment or his fault and re-count limitation of action. This does not conform to theoretical foundation of interruption, that is, not change the state of facts that obligor refuse to carry out obligations. Therefore, litigation shall not interrupt limitation and re-count it. Similarly, arbitration with equal effects of litigation and request to relevant organs or coordinating committee cannot interrupt limitation. General Provisions of Civil Law prescribes that request and litigation of obligee cannot re-count limitation of action and that only agreement of implementation among original legal particulars of a matter can interrupt limitation and re-count it. No.4 Official Reply in1997 and No.7 Official Reply in 1999 of the Supreme Court prescribes that agreement of implementation that exceeds limitation of action is protected by law and can makes limitation of action re-counted. The author proposes to connects regulations of Official Reply and General Provisions of Civil Law and establish obstacles to interruption of limitation of action together. Chapter two discussed concerning problems of suspension of limitationof action. The time of occurrence of suspension of limitation of action in our country is confined to the last six months during the period of limitation, which does not conform to the legislative objective that establishment of suspension is to protect obligee who cannot carry out rights due to faults of non-obligee; violate our tradition of negotiation and coordination before litigation in our country; reduce and infringe obligee'benefits of time and increase obligor's illegitimate benefits. This is unjust. We shall learn from suspension legislation in Germany, France and so on and prescribe that suspension can occur at any time during limitation of action. Particulars of suspension are confined to that irresistible force or other obstacles are too rigid. In real life, limitation shall be suspended during lasting period that people are inconvenient to propose litigation, such as the period that husband and wife relationship or legal agent relationship lasts. Litigation of obligee shall be particulars of suspension of limitation because it takes a period of time for people's court to deal with cases. This may lead to an awkward situation that when the court is still in trial, limitation of action of obligee is completed. After the court dismisses litigation or the plaintiff draws back, it is unfair for obligee to lose the right of re-litigation because limitation of action is completed. Therefore, limitation of action shall be suspended after the court accepts the case and during trial. Similarly, request of arbitration with equal effects of litigation and request to relevant organs or coordinating committee shall suspend limitation of action. Chapter three discussed concerning problems of incompletion of limitation of action. If particulars of suspension of limitation of action occur when limitation of action is about to complete, it is impossible to guarantee obligee's litigation in time that is counted after particulars of suspension eliminate. Thus, suspension of limitation of action is worthless and insignificant. It is necessary to bring in incompletion obstacle of limitation and prescribe that limitation of action shall not be completed in a period of time after particulars eliminate. Link and supplement suspension of limitation of action in our country.Chapter four discussed concerning problems of extension of limitation of action For most countries in the world, there is no regulation concerning extension of limitation of action; extension of limitation of action counters to the aim of establishing limitation of action, that is, maintain stability of original economic order; particulars and legal effects of extension overlap with those of suspension; "special circumstances"of particulars of extension are implicit; the judge has right of discretion in whether to extend or not, how long of the extension and what particulars of a matter can extend, as a result, embezzlement and unstable factors may occur. Extension of limitation of action shall be cancelled. Above all, the author thinks that it is necessary to amend legal particulars of interruption of limitation of action; extend legal particulars of suspension; add incompletion obstacle of limitation; cancel regulations concerning extension of limitation of action.