How do the provisions of the General Principles of Civil Law and the General Principles of Civil Law

Author: Chen Zhao Li, Jiangsu Yun law firm partner Cliff

 

[Author's According to the General Principles of the Civil Law, based on the General Principles of the Civil Law enacted in 1986, the basic civil system was regulated by the method of “extracting the public factor”, and some existing legal provisions were revised and improved. Undoubtedly, the conflicts between legal rules will be more frequent before the introduction of the unified civil code. The Supreme People's Court did not follow the usual practice of introducing judicial interpretations on the application of the old and new laws before the implementation of the new law, highlighting that the rules governing the application of the law have not yet reached an agreement. Perhaps it is hoped that the bullets will fly for a while before making a decision. What needs to be reminded is that before the interpretation of the law by the competent authorities, the opinions of this article are only theoretical discussions, and should not be used as the basis for decision-making. In practice, it is advisable to proceed from a cautious point of view and strictly grasp it.

 

Article 135 of the General Principles of Civil Law stipulates that during the two-year general limitation period, Article 136 provides for a one-year short-term legal limitation period. Article 188 of the General Principles of Civil Law stipulates that the general limitation period of the lawsuit is three years, and the starting rules increase the conditions of the "obligor". According to Li Jianguo, vice chairman of the Standing Committee of the National People's Congress, "On the "General Principles of the Civil Law of the People's Republic of China (Draft)", the general provisions of the Civil Law extend the two-year general limitation period prescribed by the current General Principles of Civil Law to three years. After the implementation of the General Principles of Civil Law, the General Principles of Civil Law will not be abolished. The General Principles of Civil Law are inconsistent with the General Principles of Civil Law. According to the principle that the new law is superior to the old law, the provisions of the General Principles of Civil Law are applicable.

However, since the implementation of the General Principles of Civil Law on October 1, 2017, the general provisions of the General Principles of Civil Law and the General Principles of Civil Law on how to stipulate the statute of limitations are quite controversial, including: (1) Does the one-year short-term statute of limitations continue to be effective? (2) Is the three-year statute of limitations required to be retroactive?

Regarding the above questions, the author believes that:

1. The one-year short-term statute of limitations prescribed by the General Principles of Civil Law has been abolished and is no longer applicable.

Although the legislative statement of the General Principles of Civil Law only explicitly extends the two-year general limitation period of the current Civil Law General Principles to three years, and does not involve a one-year short-term lawsuit. However, the purpose of this legislative amendment is to think that the two-year general limitation period is too short, which is not conducive to protecting the legitimate rights and interests of right holders. Therefore, it will be extended from two years to three years. Weightlifting is light and light, and the one-year short-term lawsuit period is shorter, which is even more detrimental to the protection of the legitimate rights and interests of right holders. Unless the law has special provisions, it should be considered that the one-year short-term statute of limitations prescribed by the General Principles of Civil Law has been abolished and no longer applies. For example, the "Comment on the General Principles of the Civil Law" edited by Professor Chen Su of the Chinese Academy of Social Sciences and the Deputy General Director of the Supreme People's Court, Shen Dejun, edited and edited and applied the provisions of the "General Principles of Civil Law of the People's Republic of China" and Du Wanhua, a full-time member of the Judicial Committee of the Supreme People's Court. The "Guidelines for the General Principles of the Civil Law of the People's Republic of China" hold this view. The judicial precedents that have been inquired after the implementation of the General Principles of the Civil Law are the disputes concerning the housing lease contract between Kunlun Branch of Urumqi Co., Ltd. and Yang Lan and Urumqi White Swan Industry and Trade Co., Ltd. Xinjiang Urumqi New City People's Court (2017) New 0104 Minchu 7216 Civil Judgment), Chen Shaoan and He Bangyin, Feng Changfang Motor Vehicle Traffic Accident Liability Dispute (Yiyang Intermediate People's Court (2017) Xiang 09 Min Zhong 1078 The civil judgment), "Hu Rongfang and Yi Qigui's case concerning the right to life, health and body rights" (Huaihua Intermediate People's Court (2017) Xiang 12 Min Zhong 1038 Civil Judgment) hold this view.

2. In accordance with the provisions of Articles 6 and 7 of the Interpretation of the Supreme People's Court on the Application of the Contract Law of the People's Republic of China (1), the fact that the rights of civil subjects have been violated Before the implementation of the General Principles of Civil Law, from the date when the right holder knows or should know that his rights have been infringed until the date of implementation of the General Principles of Civil Law exceeds the period of limitation of action as stipulated in Articles 135 and 136 of the General Principles of the Civil Law, The people's court shall not protect it; if the period of limitation of action has not expired, the time limit for filing the lawsuit shall be implemented in accordance with the provisions of Article 188 of the General Principles of Civil Law (including the starting rules and period). Except as otherwise provided by law. For example, "Chen Xiuhong and Nanjing Ningguo Fruit Distribution Co., Ltd. Sales Contract Dispute Case" (Nanjing Intermediate People's Court (2017) Su 01 Min Zhong 7949 Civil Judgment), "Yunnan New Materials Incubator Co., Ltd. and Kunming Pan Asia Cultural Industry Investment" Development of a limited liability company lease contract dispute case (Kunhua Wuhua District People's Court (2017) Yun 0102 Minchu 6344 civil judgment), "Nanchang Dongdu Cultural Industry Co., Ltd. and Jiangxi Zhongsheng Construction Group Co., Ltd. contract Disputes (Nanchang County People's Court (2017) 赣0121 Civil Year 3106 Civil Judgment) can be used for reference.

In addition to this, in addition to the General Principles of Civil Law, the one-line law (such as the Contract Law, Property Law, Tort Liability Law, and Inheritance Law), which will be incorporated into the Civil Code, may adopt the same processing rules as the General Principles of Civil Law; There is no doubt that the lawsuit period (the Insurance Law, Maritime Law, Product Quality Law, etc.) stipulates how to link with the provisions of Article 188 of the General Principles of the Civil Law. In order to avoid disputes, the Standing Committee of the National People's Congress or the Supreme People's Court is expected to interpret the law as soon as possible.

 

Attachment: Relevant legal provisions

1. "General Principles of Civil Law of the People's Republic of China

Article 188 The period of limitation of action for the protection of civil rights from the people's court shall be three years. Where the law provides otherwise, it shall be in accordance with its provisions.

The period of limitation of action is calculated from the date on which the right holder knows or should have known that the right has been damaged and the obligor. Where the law provides otherwise, it shall be in accordance with its provisions. However, if the rights have been damaged for more than 20 years, the people's courts shall not protect them; if there are special circumstances, the people's court may decide to extend them according to the application of the rights holders.

2. General Principles of the Civil Law of the People's Republic of China

Article 135 The period of limitation of action for the protection of civil rights from the people's court shall be two years, unless otherwise stipulated by law.

Article 136 The following limitation period for litigation is one year:

(1) claiming compensation for physical injury;

(2) The sale of unqualified goods is not declared;

(3) delaying or refusing to pay rent;

(4) The deposited property is lost or damaged.