Any right, from occurrence, change to extinction, depends on a specific time. The relationship between time and rights is often defined by the nature of rights itself, and legislators seldom do anything about it. What leaves room for the control of public power is the determination of the starting point and the ending point of time, the length of the time limit, and the setting of whether it is flexible. The time system in civil law mainly includes limitation of action, exclusion period and acquisitive limitation. On the other hand, any time, like space, can be divided infinitely. Since the legal relationship exists in time in the form of ideas, it must be fixed by some means, otherwise the legal relationship will have no place to live. The tools used to fix time are mainly date and period .

Limitation of action means that the obligee does not exercise his rights within a certain period, and after the expiration of that period, the obligor obtains the right of defense. Chapter 9 of the civil code is about the system of "limitation of action". There are 12 articles in total, which regulate the period and start of the limitation of action, the circumstances of interruption and suspension, and the legal system applicable to the limitation of action.

The specific mind map of this chapter is as follows:

一、 The concept of limitation of action

（一） Connotation: what is "limitation of action"?

1. Definition

Limitation of action refers to the legal system in which the obligee does not exercise his rights within the statutory period, and after the expiration of that period, the obligor can refuse to perform his payment obligations. This system is conducive to promoting the right holders to exercise their rights in time and maintaining the order and security of transactions. The limitation of action belongs to the category of extinctive limitation in nature, which is the effect of losing legal protection of rights due to the fact that the obligee does not exercise his rights for a legal period. However, there are some differences between the limitation of action and the traditional extinctive limitation, which are as follows: the extinctive limitation leads to the disappearance of all relevant rights; The limitation of action does not lead to the elimination of the substantive right of claim, but only leads to the loss of procedural protection of the right. Therefore, the obligor enjoys the benefit of limitation and can defend against the obligee. There is no clear concept of limitation of action in civil law countries. China's civil law uses the relevant practices of the former Soviet Union for reference to express the relevant content of extinctive limitation of action.

2. The change of theory: from "the theory of the elimination of the right to win" to "the doctrine of the occurrence of the right to defend"

Civil law scholars in New China not only obtained the term "limitation of action" from the Soviet Russian translation, but also accepted the corresponding validity position. Before 2008, Chinese scholars generally accepted the Soviet Union's position, which was interpreted as "the right to win the case is extinguished", that is, once the limitation period passed, the court would no longer provide protection for the plaintiff's civil rights and would reject his claim [5]. On September 1, 2008, the provisions of the Supreme People's Court on Several Issues concerning the application of the limitation of action system in the trial of civil cases (hereinafter referred to as the "provisions on the limitation of action") came into force. After the lapse of the limitation of action, the debtor has obtained the right of defense, and whether to raise the defense is left to the parties to decide freely. The court shall neither investigate ex officio nor take the initiative to apply it. It is obvious that the thinking logic of positioning effectiveness in defense is different from the previous "theory of the elimination of the right to win", and turns to the so-called "doctrine of the generation of the right to defense". Accordingly, the position of tongshuo also changed.

（二） Extension: what is the "limitation of action"?

1. The ordinary limitation of action is three years

(1) Past regulations

Article 135 of the general principles of civil law stipulates that the limitation of action is two years. From the implementation of the general principles of the civil law on January 1, 1987 to the promulgation of the general principles of the civil law in 2017, the rules have been applied in China for 30 years, forming a relatively fixed degree of understanding and public familiarity. In the process of formulating the general provisions of the civil law and even the general provisions of the civil code, there are suggestions to keep the limitation of action unchanged for 2 years, 3 years, 5 years, and 10 years or even longer.

(2) Legislative evolution background: comparative law perspective and China's national conditions

From the perspective of overseas legislation, the general limitation of action stipulated by most countries and regions is often relatively long. For example, France stipulates that the limitation period is generally 30 years from the time of the illegal act; Switzerland, Italy and Mexico set it as 10 years; Japan stipulates 5 years; Germany stipulates that it is 3 years, but the parties are allowed to make their own agreement within 3-30 years; The Russian regulation is 3 years. In Taiwan and Macao Special Administrative Region of China, the term is 15 years. It should be noted that the civil laws of these countries and regions were formulated in the 18th and 19th centuries, and their background was the development period of free capitalism. At that time, the legislative concept and judgment on economic life were based on liberalism, emphasizing the exercise of the parties' rights and the bearing of the consequences of their actions, and paying little attention to the protection of the debtor. In the following 100 years, civil legislation in western countries paid more attention to social obligations while adhering to liberalism.

After research, it is believed that any legal system needs to conform to a country's tradition and be analyzed concretely and historically in consideration of the acceptability of the public. In recent years, profound changes have taken place in social life, trading methods and types have been constantly innovated, and the relationship between rights and obligations has become increasingly complex. Requiring the obligee to exercise his rights within the two-year ordinary litigation period is no longer suitable for China's social situation and judicial practice, which is not conducive to protecting the legitimate rights and interests of creditors and establishing a honest society. Therefore, it is necessary to appropriately extend the ordinary litigation limitation period. However, it should also be noted that urging the obligees to exercise their rights within a reasonable period of time and fairly distributing rights and obligations are important functions of the limitation of action system. [9] After repeated research, investigation and demonstration, the general principles of civil law extended the ordinary limitation of action stipulated in the general principles of civil law from two years to three years. Most NPC deputies, judicial organs, legal experts and scholars agreed with this. The civil code maintains the general provisions of the civil law.

(3) Convergence of application: if the limitation of action period has not reached 2 years or 1 year as stipulated in the general principles of civil law since the implementation date of the civil code, the 3-year limitation of action period shall apply

The limitation of action stipulated in Article 188 of the civil code follows the provisions of the general principles of civil law, changing the two-year ordinary limitation period in the general principles of civil law to three years, which came into effect on October 1, 2017. According to the interpretation of the Supreme People's Court on Several Issues concerning the application of the limitation of action system in the general provisions of the civil law (hereinafter referred to as the "interpretation of the general provisions of the civil law"), if the limitation of action period starts to be calculated after the implementation of the general provisions of the civil law, the provisions of the three-year limitation of action period shall apply: on the date of the implementation of the general provisions of the civil law, The 3-year limitation period shall apply; Before the implementation of the general principles of the civil law, if the 2-year or 1-year limitation of action stipulated in the general principles of the civil law has expired, the 3-year limitation of action shall not apply.

The civil code came into effect on January 1, 2021. Although the general provisions of the civil law had been in force for more than three years, considering that the limitation of action may be suspended, the provisions of the three-year limitation of action period should also apply to those who have not completed the two-year or one-year period specified in the general principles of the civil law since the implementation of the civil code.

2. Special limitation of action

The first paragraph of Article 188 of the Civil Code stipulates that "if there are other provisions in the law, the provisions shall prevail", which is different from the ordinary three-year limitation of action.

(1) The four-year limitation of action for international trade is stipulated in the sales contract of the contract series of the civil code

Article 594 of the Civil Code stipulates that "the time limit for bringing a lawsuit or applying for arbitration over a dispute over an international contract for the sale of goods or a technology import and export contract is four years."

(2) The insurance law stipulates that the limitation of action for life insurance is five years and that for non life insurance is two years

According to Article 26 of the insurance law, the limitation of action for the insured or beneficiary of life insurance to claim payment of insurance benefits from the insurer is five years; The limitation of action for the insured or beneficiary of insurance other than life insurance to claim compensation or pay insurance benefits from the insurer is two years.

(3) The Maritime Code stipulates that the limitation period for maritime cargo transport claims is one year, and the limitation period for voyage contract claims is two years; The limitation period for maritime passenger claims is two years

Paragraph 1 of article 257 of the Maritime Code stipulates that "the limitation period for the right to claim compensation from the carrier in respect of the carriage of goods by sea is one year"; Paragraph 2 stipulates that "the limitation period for claims under voyage charter parties shall be two years."

Article 258 of the Maritime Code stipulates that "the limitation period for the right to claim compensation from the carrier in respect of the carriage of passengers by sea is two years."

3. The maximum limitation of action is 20 years

The second paragraph of Article 188 of the Civil Code stipulates that "if it is more than 20 years since the date when the right is damaged, the people's court will not support it", that is, the maximum limitation of action is 20 years. The longest limitation of action is a fixed period, which does not apply to the suspension and interruption of the limitation of action, and does not consider whether the obligee knows that his rights are infringed and the specific obligor. Compared with the ordinary limitation of action and the special limitation of action, it is called the subjective limitation of action, and the longest limitation of action is called the objective limitation of action.

二、 Calculation of limitation of action

The calculation of the limitation of action should first clarify the starting point. Once it starts, if there is no obstacle, it will drive to the destination irreversibly and without stopping. However, there are not only many obstacles to the completion of prescription, but also necessary. Suspension or interruption occurs after the commencement of the limitation of action and before its expiration; After the expiration, the limitation of action may be extended. The suspension, interruption and extension of the limitation of action are used to be called the obstacles of the limitation of action in the theoretical circle.

（一） Starting

As for when the limitation period starts, there are two main starting standards: one is the subjective standard, which starts from the time when the obligee knows that he has been infringed; The second is the objective standard, which is calculated from the date when the right is infringed or the right to claim occurs.

1. Generally, the starting point is the date when the obligee knows or should know that the right has been infringed and the obligor

In terms of legislative technology, the limitation of action period and the starting point of the period affect each other, and the two restrict each other, highlighting the legitimacy of the limitation of action system and the balance of various value objectives. The objectivism starting point can realize the value goal of pursuing economic benefits and social stability under the litigation trial system. However, when the obligee does not know that his rights are damaged and who to claim his rights, the prescription starts. It is not acceptable to the public and runs counter to the purpose of the litigation prescription system to urge the obligee to exercise his rights in time. The subjectivism starting point considers the possibility of the obligee to exercise his rights, which can better protect the obligee. However, there are also concerns that the relationship and legal status of both parties to rights and obligations depend too much on the obligee, which may weaken the predictability and stability of the limitation of action system. Therefore, countries often adopt two combinations in legislation, that is, those that adopt a longer ordinary limitation period, and those that cooperate with the objectivism starting point; If a shorter ordinary limitation period is adopted, the subjective starting point shall be used.

The civil code adopts both subjective and objective standards in the calculation of limitation of action. The general limitation of action and the special limitation of action adopt subjective standards, which are calculated from the date when the obligee knows or should know that his rights are infringed and the obligor; The longest limitation of action is an objective standard, calculated from the date when the right is infringed.

2. Special starting point

(1) Starting calculation of special subject

Article 190 of the Civil Code stipulates that "the limitation period for the right of claim of a person with no or limited capacity for civil conduct against his legal representative shall be calculated from the date of termination of the legal representative's right". The legal representative has certain advantages in taking care of the person without or with limited capacity for civil conduct in his life. On the one hand, this advantage is conducive to the life of the obligee, and on the other hand, it makes the obligee unable to claim his rights. At the same time, during the period of legal representation, safeguarding rights through litigation will hinder the trust relationship between the parties, and it is easy to see that the legal representative does not continue to perform his duties. After comprehensive consideration, the limitation of action shall be calculated from the termination of legal agency. The provisions of this article do not include the right of claim of a person without or with limited capacity for civil conduct against a third person other than the legal representative. If the legal representative exercises the right of claim against the third person, it is still the date when he knew or should have known that his right was infringed.

Article 191 of the Civil Code stipulates that "the limitation period of action for the right of a minor to claim damages for sexual abuse shall be calculated from the date when the victim reaches the age of 18". In today's society, minors continue to be sexually assaulted. Works such as Lolita, the melting pot, Fang Siqi's first love paradise, etc. adapted from real events, as well as the sexual assault incident in Beijing Red, yellow and blue kindergarten, have aroused a wide range of touching and repercussions. In order to protect the interests of minors and give them the right to safeguard their own interests when they have the ability to make independent decisions, the civil code specifically stipulates a special starting point for this. This article also echoes the provisions of article 128, "special protection shall be given to the civil rights of special civil subjects". In terms of the protection of minors' rights and interests, it is different from the special separate legal systems The criminal legal system constitutes a protection system at different levels.

In the judicial application of this article, attention should be paid to: first, minors are completely divided by age, including those over 16 years old who take their own income as their main source of livelihood; Secondly, minors include male and female in gender; Third, the limitation of action can be suspended or interrupted after it starts to run; Fourth, if a minor is sexually assaulted, his legal representative can still exercise the right of petition on his behalf before he reaches the age of 18.

(2) Starting point in special civil and commercial legal relations

In the maritime and maritime field, see article 257 of the Maritime Code for the starting point of the right to claim compensation from the carrier in respect of maritime transport: "the right to claim compensation from the carrier in respect of maritime transport of goods shall be calculated from the date when the carrier delivered or should have delivered the goods; the right to claim in respect of voyage charter parties shall be calculated from the date when the carrier knew or should have known that the right was infringed." Article 258 "the right of claim for personal injury of the passenger shall be counted from the date on which the passenger disembarks or should have disembarked; the right of claim for death of the passenger shall be counted from the date on which the passenger should have disembarked if it occurred during the transportation period; the right of claim for loss of or damage to luggage shall be counted from the date on which the passenger died after disembarking due to injury during the transportation period; and the right of claim for loss of or damage to luggage shall be counted from the date on which the passenger disembarked or should have disembarked.

In the field of intellectual property rights, if the obligee sues for more than three years, the infringement is still continuing, and the corresponding intellectual property rights are still within the protection period or validity period, the calculation of compensation for the amount of infringement shall be calculated three years from the date of the obligee sues in the people's court. For details, see article 27 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of copyright civil dispute cases, Article 18 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of Trademark Civil Dispute Cases, and Article 17 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of patent dispute cases.

In the performance of the same debt by stages, Article 189 of the Civil Code stipulates: "if the parties agree to perform the same debt by stages, the limitation of action period shall be calculated from the date when the last period of performance expires." This clause comes from Article 5 of the provisions on limitation of action. This judicial interpretation has been implemented in practice for more than ten years and has achieved good judicial effects, providing practical data for the design of legal systems. The debt of performing a contract by stages belongs to the debt of non one-time performance, which refers to the agreement in the same contract to perform the debt by stages. According to the time of occurrence of the debt and the method of payment, the debt under the contract of installment performance can be divided into the debt of periodic repeated payment and the debt of installment performance. The biggest feature of regular performance is that there are multiple debts, and each debt is independent. Just because they are independent of each other, the limitation of action period of each debt shall be calculated from the expiration of each period of performance; The debt to be performed by installments is integral and unique, so it is calculated from the date when the last performance period expires. It is determined by the characteristics of the same debt; It also conforms to the legislative purpose of the limitation of action system; Reduce litigation burden and realize litigation efficiency; Finally, it will promote transactions and increase social wealth.

（二） Discontinue

(1) Definition of suspension

The suspension of limitation of action refers to the system of suspending the calculation of the limitation period because the obligee is unable to exercise the right of claim due to certain legal reasons in the process of limitation, and continuing to calculate the limitation period after the impediment is eliminated. At a certain time in the process of limitation of action, there are objective obstacles for the obligee to claim rights, resulting in the obligee being unable to exercise his rights within the period of limitation of action, which may produce unfair results. Therefore, the law provides for the suspension system of limitation of action.

(2) Evolution and suspension of legislation

The civil code integrates the contents of Article 139 of the general principles of civil law and Article 20 of the provisions on limitation of action, Article 194 stipulates that: "In the last six months of the limitation of action period, the suspension of the limitation of action occurs: force majeure; the person with no or limited capacity for civil conduct does not have a legal representative, or the legal representative dies, loses capacity for civil conduct, or loses the right of agency; the heir or administrator of the estate is not determined after the beginning of inheritance; the obligee is controlled by an obligor or other person; other circumstances cause the obligee to be unable to exercise his right of claim Obstacles.

(3) Legal effect of suspension

The general principles of civil law stipulates that the limitation of action period shall continue to be calculated from the date when the reason for suspension of limitation of action is eliminated. After repeated studies, it is considered that it is more appropriate to stipulate that the limitation of action period of six months expires from the date when the reason for suspension of the limitation of action is eliminated, which can not only leave necessary preparation time for the obligee to exercise his rights, but also avoid excessive delay in litigation and excessive burden on the obligor. No matter how long the limitation of action period has passed before the cause of suspension, and no matter how long the cause of suspension lasts, after the cause of suspension disappears, the limitation of action period shall be calculated for another 6 months. That is to say, after deducting the duration of the cause of suspension, the total period of limitation of action may exceed 3 years, but it will not exceed 3 years and 6 months.

（三） Break

1. Concept

The interruption of the period of limitation of action refers to the system in which the legal causes such as the obligee's active exercise of rights occur in the process of the period of limitation of action, so that the elapsed period of limitation of action is eliminated and the period is recalculated. The interruption and suspension of the limitation of action are obstacles to the completion of the limitation of action, but the suspension of the limitation of action is a temporary obstacle, and the interruption of the limitation of action is a fundamental obstacle.

2. Situation of interruption

Article 195 of the civil code basically follows the content of Article 140 of the general principles of civil law. On the other hand, the statute of limitations has refined many situations. The author hereby arranges and lists:

(1) The obligee makes a request for performance to the obligor

Putting forward the request for performance itself means that the obligee is actively exercising his rights. The specific circumstances include: one party directly delivers the claim document to the other party, and the other party signs, seals, or presses the fingerprint on the document, or although it is not signed, sealed, or presses the fingerprint, it can prove in other ways that the document reaches the other party; One party claims its rights by sending letters or data messages, and the letters or data messages reach or should reach the other party; If one of the parties is a financial institution, it deducts the principal and interest of the arrears from the account of the other party in accordance with the law or the agreement of the parties; Where the whereabouts of one of the parties are unknown, the other party publishes a public announcement with the content of claiming rights on the influential media at the national level or at the provincial level where the party whose whereabouts are unknown has its domicile.

For the identification of "signee", if the other party is a legal person or other organization, the signee may be its legal representative, main person in charge, department responsible for receiving and sending letters or authorized subject; if the other party is a natural person, the signer may be the natural person himself, a relative with full capacity living together or an authorized subject.

(2) The obligor agrees to perform its obligations

The obligor agrees to perform the obligation, which indicates that the obligor knows the existence of the obligee's right and recognizes the right subjectively. In many cases, when the obligee claims the right from the obligor, the obligor makes a commitment. This commitment is the result of the obligee's active performance of rights, which makes the rights and obligations relationship between the obligee and the obligor clear and stable again. The obligors agree to perform their obligations, and the specific circumstances include: the obligors make commitments or acts such as phased performance, partial performance, provision of guarantees, request for extension of performance, and formulation of debt repayment plans.

(3) The obligee brings a lawsuit or applies for arbitration

If the obligee brings a lawsuit to a people's court or applies to an arbitration institution for arbitration, it claims its rights from the obligor by means of dispute resolution. This way is the most effective and powerful way for the obligee to exercise his rights. The lawsuit filed here is not limited to civil lawsuit, but also includes civil lawsuit incidental to criminal action. Here, civil and commercial litigation and arbitration is a case where citizens, legal persons or other organizations as equal subjects request arbitration institutions to adjudicate contract disputes or other property rights and interests disputes. Labor arbitration refers to the parties applying to the labor arbitration committee for adjudication to handle labor disputes. The arbitration of rural land contractual management disputes is to apply to the rural land contractual Arbitration Committee for arbitration of rural land contractual management disputes.

(4) Other circumstances with the same effect as filing a lawsuit or applying for arbitration

The situations with the same effect as filing a lawsuit include: applying for a payment order; Apply for bankruptcy and declare bankruptcy claims; Apply for declaring the obligors missing or dead for claiming rights; Apply for pre litigation measures such as property preservation and temporary injunction before litigation; Apply for enforcement; Apply for additional parties or be notified to participate in the litigation; Claim set off in litigation; Other matters that have the same effect of interruption of limitation of action as bringing a lawsuit.

In practice, there are also a large number of cases of applying to state administrative and judicial organs and public service institutions to safeguard their rights: the obligee applies to the people's mediation committee and other state organs, institutions, social organizations and other social organizations that have the power to solve relevant civil disputes according to law for the protection of their corresponding civil rights; The obligee submits a case or complaint to the public security organ, the people's Procuratorate or the people's court, requesting protection of his civil rights.

Article 38 of the newly issued interpretation of the Supreme People's Court on Several Issues concerning the application of the general provisions of the civil code of the people's Republic of China (hereinafter referred to as the judicial interpretation of the general provisions) adds another content, that is, if the obligee makes a request for performance to the agent, property agent or estate manager of the obligor, it can be determined that the limitation of action is interrupted.

3. Legal effect of interruption

(1) Direct effect: recalculation of limitation of action

Article 195 of the Civil Code stipulates that "the limitation of action period shall be recalculated from the time of interruption and termination of relevant procedures". The starting point of recalculating the limitation of action period shall be handled differently according to different situations: (1) the effect of interruption of limitation of action shall occur when the request of the obligee reaches the obligor or the obligor agrees to perform reaches the obligee; (2) If the obligee brings a lawsuit or applies for arbitration, or has an application procedure for equal rights protection, the limitation period shall be recalculated from the date when the relevant procedure ends.

(2) Catch up and derivative effects

The interruption of limitation of action is combined with debt, and there are still many problems of the effect of recovery. For example, for the "same creditor's rights and debts" whose starting point is "the expiration of the last period of performance", the obligee claims rights for some of the same creditor's rights, and the effect of the interruption of the limitation of action extends to the remaining creditor's rights; Another example is that in the joint and several claims and debts, the reason for the interruption of the limitation of action to one of the joint and several claims and debtors also has the effect of the interruption of the limitation of action to other joint and several claims and debtors; Another example is that the creditor brings a suit of subrogation, which has the effect of interrupting the limitation of action on both the creditor's rights and the debtor's rights; If a creditor's right is transferred, the limitation of action is interrupted from the date when the notice of the transfer of the creditor's right reaches the debtor, and may be recalculated for the assignee of the creditor's right. See articles 9 and 15-17 of the statute of limitations for details.

（四） Extend

(1) Concept of extension

The second half of the second paragraph of Article 188 of the Civil Code stipulates that after the expiration of the limitation of action, if the obligee applies for an extension of the limitation of action based on legitimate reasons, the people's court shall decide whether to extend it.

(2) Origin of extension

This provision originated from Soviet Russia. The basic logic is that since the court has the right to take the initiative to review whether the limitation of action period has been completed and reject the claims affected by the limitation of action ex officio, it also has the right to extend some completed limitation of action ex officio based on fairness considerations [19]. Obviously, this is based on the premise that the court can take the initiative to apply it ex officio. [20] Nowadays, it is forbidden for judges to apply the limitation of action ex officio, and the basic consensus is that the parties have the right to dispose. In the historical background of transplanting the Soviet system, the extension of the limitation of action played an important role in dealing with property disputes involving people going to Taiwan before and after the establishment of new China [21]. Now that the system has been reformed, from the perspective of protecting the rights and interests of the parties, the people's court can decide only after the parties apply.

(3) Extended application

First of all, the extension of limitation of action is only applicable to the longest period of limitation of action, not to the ordinary period of limitation of action and the special period of limitation of action; Secondly, the extension of the limitation of action is due to the fact that the obligee can not exercise his right of claim within the statutory limitation of action due to objective obstacles, and can not avoid the expiration of the limitation of action through the suspension and interruption of the limitation of action system; Third, the extension of the limitation of action period needs to be based on the application of the obligee, and the people's court does not take the initiative to extend the limitation of action period; Finally, whether to extend the limitation of action is decided by the people's court according to the circumstances of the case, which is "can" rather than should be extended.