"Source of this article: Jinan Intermediate People’s Court"
Question: How to determine the limitation period of action when the parties have not agreed on the performance period of the contract?
According to the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases (hereinafter referred to as the Provisions on the Limitation System) and the provisions of the Civil Code on the Limitation System (see the "Key Articles" of this article for details), unless otherwise stipulated by law, if the parties have not agreed on the contract performance period, the limitation period shall be determined as follows:
A. If the time limit for performance is unclear, the debtor can perform at any time, and the creditor can also request performance at any time (but the other party should be given necessary preparation time). In this case, the limitation period of action is calculated from the date when the creditor first requests performance (including but not limited to the date of prosecution), and the limitation systems such as suspension and interruption are applicable according to the law;
B. If the time limit for performance can be determined through supplementary agreement, the limitation period of action shall be calculated from the date when the time limit for performance expires;
C. If a supplementary agreement cannot be reached, but the time limit for performance can be determined according to the relevant provisions of the contract or trading habits, the limitation period of action shall be calculated from the date when the time limit for performance expires;
D. If the time limit for performance cannot be determined, the limitation period of action shall be counted from the date when the grace period for creditors to require debtors to perform their obligations expires;
E. If the time limit for performance cannot be determined, and the debtor clearly indicates that he will not perform his obligations when the creditor claims his rights for the first time, the limitation period of action shall be counted from the date when the debtor clearly indicates that he will not perform his obligations.
The reason why the Supreme Court said that the limitation of action in this case should be counted from the date of the lender’s prosecution according to the spirit of the regulations is that it expanded the interpretation of Article 6 of the Provisions on the Limitation of Action System according to the specific circumstances of this case, especially in combination with the lender’s request for repayment from the borrower, and on this basis, it reached a conclusion suitable for this case; Therefore, in practice, we must not easily draw the conclusion that the limitation period of action should be "counted from the date of the lender’s prosecution" in the case of "unclear performance period" or "uncertain performance period"! Instead, we should analyze specific problems and make a correct judgment according to the above methods.
Case index: (China Judgment Document Network) The retrial applicant Liu Liankun and the respondent Wang Jiaqiang’s private loan dispute case, (2021) Supreme People’s Court Shen No.2305.
Date of judgment:2021-06-23，Release date:2021-08-18Referee’s viewpoint
In this case, the Supreme People’s Court believes that according to the spirit of Article 6 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases, both parties have not agreed on the time limit for the performance of the loan involved in the case, and the limitation period should be counted from the date of Wang Jiaqiang’s prosecution.
The Supreme People’s Court believes that "according to the spirit of Article 6 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases, the parties to this case did not agree on the time limit for the performance of the loan involved in the case, and the limitation period should be counted from the date of Wang Jiaqiang’s prosecution. Liu Liankun’s claim that the original judgment violated the statute of limitations and that Wang Jiaqiang’s prosecution has exceeded the statute of limitations has no legal basis. "Key law
1. Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases (adopted by the Supreme Judicial Committee on August 11, 2008 and repealed)
Article 6 Where the time limit for performance of a contract is not stipulated, the time limit for performance can be determined according to the provisions of Articles 61 and 62 of the Contract Law, the limitation period of action shall be counted from the date when the time limit for performance expires; If the time limit for performance cannot be determined, the limitation period of action shall be counted from the date when the grace period for the creditor to ask the debtor to perform his obligations expires, but if the debtor explicitly stated that he did not perform his obligations when the creditor claimed his rights for the first time, the limitation period of action shall be counted from the date when the debtor explicitly stated that he did not perform his obligations.
2. Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases (amended by the Supreme Judicial Committee on December 23, 2020)
Article 4 Where the time limit for performance of a contract is not stipulated, the time limit for performance can be determined according to the provisions of Articles 510 and 511 of the Civil Code, the limitation period of action shall be counted from the date when the time limit for performance expires; If the time limit for performance cannot be determined, the limitation period of action shall be counted from the date when the grace period for the creditor to ask the debtor to perform his obligations expires, but if the debtor explicitly stated that he did not perform his obligations when the creditor claimed his rights for the first time, the limitation period of action shall be counted from the date when the debtor explicitly stated that he did not perform his obligations.
3. People’s Republic of China (PRC) Contract Law (repealed)
Article 61 After the contract comes into effect, if the parties have not agreed or clearly agreed on the quality, price or remuneration, place of performance, etc., they may supplement it by agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or trading habits.
Article 62 Where the contents of the relevant contract are not clearly agreed by the parties and cannot be determined according to the provisions of Article 61 of this Law, the following provisions shall apply:(a) the quality requirements are not clear, in accordance with national standards and industry standards; If there is no national standard or industry standard, it shall be performed according to the usual standard or the specific standard that meets the purpose of the contract. (2) If the price or remuneration is unclear, it shall be performed according to the market price at the place of performance when the contract is concluded; If government pricing or government-guided pricing should be implemented according to law, it shall be implemented in accordance with the provisions. (3) Where the place of performance is not clear, if the money is paid, it shall be performed at the place where the party receiving the money is located; Where real estate is delivered, it shall be performed at the place where the real estate is located; Other targets shall be performed at the place where the party performing the obligation is located. (4) If the time limit for performance is unclear, the debtor may perform it at any time, and the creditor may also request performance at any time, but the other party shall be given necessary preparation time. (5) If the method of performance is not clear, it shall be performed in a way conducive to the realization of the purpose of the contract. (6) If the burden of performance expenses is unclear, it shall be borne by the party performing the obligation.
4. Provisions of the Civil Code of People’s Republic of China (PRC) on the limitation of action system.
Article 188 The limitation of action for requesting protection of civil rights from a people’s court shall be three years. Where there are other provisions in the law, such provisions shall prevail.
The limitation period of action shall be counted from the day when the obligee knows or should know that the right has been damaged and the obligor. Where there are other provisions in the law, such provisions shall prevail. However, if more than 20 years have passed since the right was damaged, the people’s court will not protect it. Under special circumstances, the people’s court may decide to extend it according to the application of the obligee.
Article 189 Where the parties agree to perform the same debt by installments, the limitation period of action shall be counted from the date when the last installment expires.
Article 190 The limitation period of action for a person without capacity for civil conduct or a person with limited capacity for civil conduct to claim his legal representative shall be counted from the date when the legal representative terminates.
Article 191 The limitation of action for a minor’s claim for damages for sexual assault shall be counted from the date when the victim reaches the age of 18.
Article 192 If the limitation of action expires, the obligor may raise a defense of non-performance.
After the expiration of the limitation period of action, if the obligor agrees to perform it, he shall not plead on the grounds of the expiration of the limitation period of action; If the obligor has voluntarily performed it, he may not request to return it.
Article 193 A people’s court may not apply the prescription of action on its own initiative.
Article 194 During the last six months of the limitation of action, if the right of claim cannot be exercised due to the following obstacles, the limitation of action shall be suspended:
(1) Force majeure;
(2) A person without or with limited capacity for civil conduct has no legal representative, or his legal representative dies, loses his capacity for civil conduct or loses his power of agency;
(3) No heir or estate manager has been determined after the beginning of inheritance;
(4) The obligee is controlled by the obligor or others;
(5) Other obstacles that prevent the obligee from exercising the right of claim.
The limitation of action expires after six months from the date when the reasons for the suspension of the limitation of action are eliminated.
Article 195 If the limitation of action is interrupted in any of the following circumstances, the limitation of action shall be recalculated from the time when the interruption and relevant procedures are terminated:
(1) The obligee makes a request for performance to the obligor;
(2) The obligor agrees to perform the obligation;
(3) The obligee brings a lawsuit or applies for arbitration;
(4) Other circumstances that have the same effect as bringing a lawsuit or applying for arbitration.
Article 196 The limitation of action shall not apply to the following claims:
(a) request to stop the infringement, remove obstacles and eliminate dangers;
(2) The obligee of immovable property right and registered movable property right requests to return the property;
(3) Requesting to pay alimony, alimony or alimony;
(four) other claims that are not applicable to the limitation of action according to law.
Article 197 The duration, calculation method and reasons for suspension or interruption of the limitation of action shall be prescribed by law, and the agreement of the parties shall be invalid.
The parties’ prior waiver of the interests of limitation of action is invalid.
Article 198 Where the law provides for the limitation of arbitration, such provisions shall prevail; Where there are no provisions, the provisions on limitation of action shall apply.
Article 199 Unless otherwise provided by law, the duration of the rights such as the right of revocation or rescission stipulated by the law or agreed by the parties shall be counted from the day when the obligee knew or should have known that the rights arose, and the provisions on suspension, interruption and extension of the limitation of action shall not apply. At the expiration of the term of existence, the rights of revocation and rescission shall be extinguished.
Article 510 After the contract comes into effect, if the parties have not agreed or clearly agreed on the quality, price or remuneration, place of performance, etc., they may supplement it by agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or trading habits.
Article 511 Where the parties’ agreement on the contents of the relevant contract is unclear and cannot be determined according to the provisions of the preceding article, the following provisions shall apply:
(a) the quality requirements are not clear, in accordance with the mandatory national standards; If there is no mandatory national standard, it shall be implemented in accordance with the recommended national standard; If there is no recommended national standard, it shall be implemented in accordance with industry standards; If there is no national standard or industry standard, it shall be performed according to the usual standard or the specific standard that meets the purpose of the contract.
(2) If the price or remuneration is unclear, it shall be performed according to the market price at the place of performance when the contract is concluded; If government pricing or government-guided pricing should be implemented according to law, it shall be implemented in accordance with the provisions.
(3) Where the place of performance is not clear, if the money is paid, it shall be performed at the place where the party receiving the money is located; Where real estate is delivered, it shall be performed at the place where the real estate is located; Other targets shall be performed at the place where the party performing the obligation is located.
(4) If the time limit for performance is unclear, the debtor may perform at any time, and the creditor may also request performance at any time, but the other party shall be given necessary preparation time.
(5) If the method of performance is not clear, it shall be performed in a way conducive to the realization of the purpose of the contract.
(6) If the burden of performance expenses is unclear, it shall be borne by the party performing the obligation; The performance expenses increased due to the creditor’s reasons shall be borne by the creditor.
Transfer from: the highest case
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