Research On Issues Of Litigation Prescription Of Unascertained Deadline For Performance

The system of civil litigation prescription, as a main part of the system of civil right, has widely caused theoretic and practical disputations. Since it is complicated itself and the present statutes are not concrete and clear enough, there have been not only quite a few knotty problems in the course of suitability but also quite a few arguments in the educational circles. Mainly using the methods of comparison and actual evidence analysis and combining judicial practice, the thesis, put forward some opinions on those problems such as the commencing time of litigation prescription and the interruption of statute of limitations of unascertained deadline for performance, The thesis attempts to offer help to perfect the development of the theory and the system itself.For the commencing time of litigation prescription, there are great differences in the worldwide countries, including three sorts as below: the time when claim can be exercised as that in most civil law countries, the time when the contract established and the right is given as that in Germany, the time when right is violated as that in Russia, Eastern Europe and in China. For the causes of interruption of statute of limitations, commencing a lawsuit may results in the interruption of litigation prescription has been generally accepted by most civil law countries. Otherwise, whether or not can a plea outside the court result in the interruption of litigation prescription, there are also some debates. They are the positive view, the negative view, and the compromise view which holds that an interruption of litigation prescription can only occurred when a lawsuit is brought by the obligor after six months when he exerts his plea. Meanwhile, revoking a lawsuit by the obligor or the complain being rejected by the court can not result in the interruption of litigation prescription in most civil law countries, and the General Principles of the Civil Law does not stipulate about it while Article 267 of the Maritime Code stipulate that, the limitation of time shall not be discontinued if the claimant withdraws his action or his submission for arbitration, or his action has been rejected by a decision of the court. For the causes such as application for payment command, declaration of bankruptcy creditor's rights and application for enforces, has the same effect with commencing a lawsuit that can result in the interruption of litigation prescription in Germany, Japan, Italy and Taiwan District. However, the General Principles of the Civil Law does not stipulate about it."The right is violated"is the commencing time in calculating time limits in litigation in our civil law. Both the General Principles of the Civil Law and the Contract Law stipulate that, if the time limit for performance is unclear, the debtor may at his convenience fulfill his obligations towards the creditor; the creditor may also demand at any time that the debtor perform his obligations, but a time period for necessary preparation shall be given to the obligor.The common view in judicial practice is that if the notice for assertion of claims has been sent to the debtor, the commencing time of litigation prescription will begin when a time period for necessary preparation for performance expires and the limitation of action shall be two years. If the notice for assertion of claims hasn't been sent to the debtor, the court shall protect the creditor's rights in 20 years since the infringement. It must meet two requirements to commence the litigation prescription of unascertained deadline for performance. First, the creditor has claimed. Second, the claim has been rejected.The designed function of the system of litigation prescription is to supervise the creditor exercise his rights positively and maintain the stability of social order. Applied to debt without time limits agreed, the stipulation in our civil law does not conform with the designed function.Commencing time of litigation prescription of unascertained deadline for performance in civil law should be renewed. The debtor may at his convenience fulfill his obligations towards the creditor; the creditor may also demand at any time that the debtor perform his obligations. The commencing time of litigation prescription will begin when the creditor's claim was rejected. However, if one year has passed since the creditor's right is established and the debtor has not fulfill the obligations towards the creditor or the creditor has not demanded the debtor perform the obligations, the commencing time of litigation prescription will begin and should be calculated. Thus, it will be more beneficial to safeguard the creditor's right by being given a cushion time after his right established. Meanwhile, the abuse that the commencing time of litigation prescription of unascertained deadline for performance be controlled by the creditor himself will be avoided.As a matter, the concrete application of laws during the trial process on interruption of statute of limitations is different in different courts. Basically, Causes of interruption of litigation prescription of unascertained deadline for performance follows the principles of interruption of litigation prescription. A limitation of action shall be discontinued if suit is brought or if one party makes a claim for or agrees to fulfilment of obligations, although there is different understanding and application during the trial process.For the interruption of litigation prescription of unascertained deadline for performance, under different circumstances, there are two sorts of as below : when the creditor's claim was rejected after one year has passed since the creditor's right is established, the interruption will occur; if the debtor has not fulfill the obligations towards the creditor or the creditor has not demanded the debtor perform the obligations in one year since the creditor's right is established, the interruption will occur, too.For causes of interruption of litigation prescription of unascertained deadline for performance should follows the rules as below:First, the plea ought to be the relative cause of the interruption;Second, the modified legislation ought to stipulate that, a limitation of action shall be discontinued if suit is brought or if one party makes a claim towards the related institution for solution or agrees to fulfilment of obligations and the litigation prescription shall be re-calculated from the time when the cause for interruption terminates. It is beneficial to safeguard both the creditor and the debtor by supervising the creditor exercise his right in time and avoiding the possibility of recognizing the evidence producing by the creditor freely by the court when he could not produce related evidence.