On The Special Beginning System Of Limitation Of Action In China

The commencement of the statute of limitations serves as the starting point for the functioning of the statute of limitations system,indicating the time when the right holder can exercise his or her right to claim,initiating the process of calculating the statute of limitations and embodying the values and concepts of the statute of limitations system.The special calculation is scattered in the civil law system in the form of exceptions based on the complexity of the claim and the fact that it differs from the process of claiming a remedy from the general calculation predetermined,and the legislative provisions fully reflect the weighing and trade-off of interests.In this paper,first of all,the statute of limitations standard-oriented determination of the basic scope of the special calculation system,through the analysis of the special calculation of the situation to clarify the logic of the system,on this basis,the abstract out of the litigation statute of limitations special calculation system common logical basis and value orientation,so as to form the basic ideas about the litigation statute of limitations special calculation system.It also examines the connection between the types of special rules that impede the possibility of exercising the right to claim and the system of suspension and interruption,considers the integration of the system of special rules of limitation with other systems,and finally reflects on the problems in current legislation and examines the right to claim that special rules of limitation should apply.In addition to the introductory and concluding remarks,the text is divided into five parts.The first part is "Analysis of the special criteria for the commencement of the statute of limitations in our country".The statute of limitations is mainly divided into subjective criteria and objective criteria,and the statute of limitations in China is based on the principle of subjective criteria,with the exception of objective criteria.The second part is entitled "Circumstances in which the statute of limitations in our country runs exceptionally".Using the criteria of "the dateon which the claim arises","the date on which the claim becomes practicable" and "the commencement of the statute of limitations for the performance of the contracts by stages of the same debt",an institutional analysis was made of the more typical and special cases of commencement to clarify the subjective and objective disputes in each case.The third part is "The logical basis and value orientation of our special statute of limitations system".On a logical basis,the statute of limitations for partial claims relies on the certainty of objective criteria to facilitate the stabilization of trading relationships and the prompt settlement of claims;claims of an original nature do not require a determination that the right has been infringed and the statute of limitations should run from the date on which it becomes available.In terms of the process of remedy,the subjective criterion presupposes the application of a contract of immediacy and a tort that is completed with one execution,but the logical structure of the application of the subjective criterion is severed when there are obstacles to the exercise of the right to claim and when the tort continues,and the point of commencement of the statute of limitations should be considered in terms of the disappearance of the obstacles and the composition of the right to claim.In terms of value orientation,the traditional statute of limitations value orientation is shifted favoring the rights holder in the special rules of arrangement,firstly,on the basis of balancing the interests of creditors and debtors.Secondly,the maintenance of legal order and the saving of judicial costs.The fourth part is "The interface between the special system of commencement of the statute of limitations and the system of suspension and interruption".Articles 190 and 191 of the General Civil Code,as the types of special calculation of obstacles to the exercise of the possibility of the right to claim,are applied in a way that creates a connection with the suspension and interruption system: first,when the right to claim arises before the establishment of the identity relationship,there are obstacles in the process of statute of limitations calculation,but since our country hasfailed to include special calculation in the cause of suspension,the application of the suspension system at this time is far-fetched;second,when the legal representative claims the right to claim before the special calculation point,the effect of interruption should be recognized on the basis of respect for the active exercise of rights by the right holder,and when the right to claim by the representative is not realized,the re-calculation should take place from the date of the special calculation point,not the date of termination of the interruption,in order to maximize the protection of creditors' interests.The fifth part is "reflection and improvement of the special starting system of limitation of action in China".On the one hand,it is to improve the current legislation,including article 190 of the general principles of civil law,which should stipulate the two-way protection between the principal and the legal agent.Article 191 the limitation of action shall be added for the infringement from within the family from the date of separation from the common life of the family.On the other hand,guided by the basic idea of special calculation,this paper probes into the application of special calculation to the claim right of continuous tort,the claim right between husband and wife,and the claim right of contract without agreed performance period,and determines the calculation standard and logic applicable to each claim right.