Research On The Prescription Of Litigation In Private Lending Disputes

Private lending generally occurs in between natural persons, legal persons and other organizations and among each other, because of its relatively loose form and without identified industry standards or specific laws and regulations, so many speculators can profit by it. In recent years the Internet has a great concussion and influence on the whole social life, P2 P network lending platform springing up since 2013, after a spate of misappropriating platform collapse events have been succession exposed, resulting in a great negative impact. As exotic, Chinese litigation prescription has a lot of controversy in the practical application, even many theorists suggest extending our limitation of action period. Therefore, the research on the prescription of litigation in the dispute of private lending is complex and controversial. In this paper, according to recent years, the court accepted the settlement of private lending disputes involved in the case of litigation prescription analysis. It is found that the litigation prescription system in private lending disputes exist such as starting, discontinuance, suspension, the allocation of the burden of proof,and do not apply to limitation of action and so on.In private lending disputes, lawsuit prescription’s starting of timeless debt exists two schemes of the dispute between "the request of the creditor" and "the establishment of the creditor". The first mentioned of two occupy a majority position in our country academic circles and the current legislation practice began to accept this claim. Also, it is in line with the spirit of the legislation that the longest lawsuit prescription’s starting point of "the date of right has been violated " understand " the date of establishment of right of obligatory claim". In the interest of lawsuit prescription starting, the mainstream view is that although interest is the principal interest, but in the calculation of the lawsuit prescription is independence, which is relative rather than complete. Because they also believe that the installment interest has certain continuity, so it should start with after the last interest.Based on joint liability guarantee, its reason and the size of main debtor and guarantor assume responsibility is different, so the limitation of action for guarantee debt’s discontinue extends to the principal debt discontinues in joint liability guarantee, and vice versa. But on the basis of protecting the legal rights of the creditor, for common joint liability guarantee, the effectiveness of a guarantor in the interruption of the limitation of action should extend to other guarantors. The same, from legal tends to protect the interests of creditors, in practice that the identification of withdrawing an action has the litigation limitation interrupt and the debtor whereabouts unknown litigation limitation suspension, these are in line with China’s national conditions.The distribution of the burden of proof of litigation prescription in the dispute of private lending is the rules of the burden of proof apply in the specific environment, but it does not have special characteristics. In addition, the confirmation of the contract is invalid, and does not apply to the limitation of action. Also, the subjective malicious debtor can’t apply the system of litigation prescription, and should not benefit from the law. Litigation prescription system is established in order to supervise the exercise of rights, while in debtor malicious escape debt situation, the principle of honesty and credit should apply prior to the prescription system.