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Trial Divisions of the Supreme People's Court: 32 adjudication opinions on the expiration of the statute of limitations

author:Shanxi Taiyuan Chang lawyer

Trial Divisions of the Supreme People's Court: 32 adjudication opinions on the expiration of the statute of limitations

Transferred from: The rule of the same judgment for similar cases

Trial Divisions of the Supreme People's Court: 32 adjudication opinions on the expiration of the statute of limitations

Trial Divisions of the Supreme People's Court

32 adjudication opinions on the expiration of the statute of limitations

1. Provisions of the Civil Code on the expiration of the statute of limitations

Article 192:Where the statute of limitations for litigation is complete, the obligor may raise a defense of non-performance of obligations.

After the expiration of the statute of limitations, if the obligor agrees to perform, it must not be defended on the grounds that the statute of limitations has expired;

II. Provisions of the Judicial Interpretation on the Expiration of the Statute of Limitations (Adopted at the 1823rd Meeting of the Adjudication Committee of the Supreme People's Court on December 23, 2020)

01. Where a party fails to raise a statute of limitations defense during the first-instance trial period, and submits it during the second-instance trial, the people's court will not support it, except in cases where it can prove that the other party's claim has expired on the basis of new evidence.

Where parties fail to raise a statute of limitations defense in accordance with the provisions of the preceding paragraph, and apply for a retrial or raise a retrial defense on the grounds that the statute of limitations period has expired, the people's court will not support it.

02. Where the statute of limitations period is completed, and one party expresses its intention to the other party to perform its obligations or voluntarily performs its obligations, and then raises a defense on the grounds that the statute of limitations has expired, the people's court will not support it.

03. Where the parties reach a new agreement on the original debt, and the creditor claims that the obligor waives the right to defend against the statute of limitations, the people's court shall support it.

04. If the lender issues a notice to the borrower to collect the loan due after the statute of limitations, and the debtor signs or seals the notice, and it can be determined that the borrower agrees to perform the obligations that the statute of limitations has expired, the people's court shall support the lender's claim that the borrower waives the right to defend against the statute of limitations.

Interpretation number: Legal Interpretation [2020] No. 17

III. Provisions of the Judicial Interpretation of the Civil Code on the Guarantee System on the Expiration of the Statute of Limitations (Adopted at the 1824th Meeting of the Adjudication Committee of the Supreme People's Court on December 25, 2020)

05. After the expiration of the statute of limitations for the principal creditor's right, the people's court shall not support the mortgagee's claim to exercise the mortgage right; if the mortgagor claims not to bear the guarantee liability on the grounds that the limitation period for the principal creditor's right has expired, the people's court shall support it. Where a creditor only files a lawsuit against the debtor before the expiration of the limitation period for the principal creditor's right, and fails to apply for compulsory enforcement against the debtor within the limitation period for applying for enforcement as provided for in the Civil Procedure Law after a judgment or mediation by the people's court, the people's court shall not support its claim against the mortgagor for exercising the mortgage right.

Where, after the expiration of the statute of limitations for the principal creditor's rights, the debtor whose property has been retained or a third party who has ownership of the retained property requests the creditor to return the retained property, the people's court shall not support it;

For the legal consequences of the expiration of the statute of limitations for the principal creditor's right, the provisions of the first paragraph shall apply by reference to the pledge of rights by means of registration as the method of publicity, and the provisions of the second paragraph shall apply by reference to the pledge of movable property and the pledge of rights by means of publicity by means of delivery of proof of right.

Interpretation Number: Legal Interpretation [2020] No. 28

IV. The Supreme People's Court's case reply

(6) Reply of the Supreme People's Court on the Issue of Whether the Debtor's Signing of the "Loan Reconciliation Visa Form" Is a Reconfirmation of the Performance of the Original Debt That Has Exceeded the Statute of Limitations

According to the research:

The "reconfirmation of the original debt" referred to in the Reply of our court on the legal effect of the borrower's signature or seal on the demand notice during the period beyond the statute of limitations (hereinafter referred to as the "Reply") refers to the creditor's intention to collect the overdue loan, and the debtor's signature or seal recognizes and is willing to continue to perform the debt. In the case involved in your court's request for instructions, the "Loan Reconciliation Certificate" issued by Anhui Investment Group Co., Ltd. (hereinafter referred to as the Investment Group Company) to the debtor, Linquan County Power Supply Bureau, in March 2003, did not explicitly indicate in its name or content that it was to collect the loan. Zhang Xiufa, director of the Linquan County Power Supply Bureau, signed a "notice of receipt" on the "Loan Reconciliation Visa Form", indicating that the debtor had received the "Loan Reconciliation Visa Form", but it could not be presumed that he had the intention to repay the debt for which the statute of limitations had expired.

Therefore, the "loan reconciliation visa form" involved in this case cannot be simply understood as the "demand notice" in the Reply, nor can the act of both parties issuing and signing the "loan reconciliation visa form" be regarded as a new agreement on the performance of the original claims and debts. Our court agrees with the minority opinion in your court's request for instructions.

Approval Number: [2006] Min Li Ta Zi No. 106

(7) Reply of the Supreme People's Court to the Request for Instructions on Whether the Debtor's Issuance of a Confirmation Letter to the Creditor Confirming the Debt After the Expiration of the Statute of Limitations Constitutes a New Debt

After study, the reply is as follows:

According to the relevant facts of the loan contract dispute between the Chongqing Yuzhong District Branch of the Agricultural Bank of China and the Chongqing Packaging Technology Research Institute and the Huaxi International Trade Company of Chongqing Jialing Enterprise Company requested by your court, Chongqing Jialing Enterprise Company Huaxi International Trade Company took the initiative to issue a confirmation letter to the Chongqing Yuzhong District Branch of the Agricultural Bank of China to verify the principal and interest of the loan after the expiration of the statute of limitations. Therefore, for the legal consequences of the debtor's act of voluntarily sending a confirmation letter to the creditor to verify the principal and interest of the loan, please refer to the above-mentioned Reply of this court on the legal effect of the borrower's signature or seal on the demand notice after the expiration of the limitation period to identify and deal with it.

Reply No.: June 4, 2004 [2003] Min Er Ta Zi No. 59

(8) Reply of the Supreme People's Court on the Legal Effect of the Borrower's Signature or Seal on the Demand Notice within the Period of Limitation for Litigation

After study, the reply is as follows:

In accordance with the spirit of Articles 4 and 90 of the General Principles of the Civil Law of the People's Republic of China, if a credit union issues a notice to the borrower to collect the loan on time after the statute of limitations, and the debtor signs or seals the notice, it shall be regarded as a reconfirmation of the original debt, and the creditor's rights and debts shall be protected by law.

Understanding and application of the Reply:

(1) The debtor's signature or seal on the creditor's notice of the due loan means that the debtor waives the right of defense arising from the expiration of the limitation period. However, according to Article 20 of the Security Law, if the debtor waives the right to defend against the debt, the guarantor still has the right to defend the debt. The guarantor can still refuse to assume the liability for the guarantee. This does not mean that the debtor's waiver is effective against the guarantor.

(2) If the guarantor reaches a repayment agreement with the creditor after the expiration of the limitation period, it may be handled in accordance with the provisions of Fa Fu [1997] No. 4 "Reply on the Issue of Whether the Repayment Agreement Reached by the Parties Should Be Protected by Law after the Limitation Period", which shall be deemed to be the guarantor's new guarantee for the main creditor's rights, and the guarantor shall assume the guarantee liability in accordance with the new commitment.

(3) If the guarantor signs or seals the creditor's notice of the loan that has expired, according to the provisions of Fa Shi [1999] No. 7 "Reply on the Legal Effect of the Borrower's Signature or Seal on the Demand Notice during the Period of Limitation Period", it cannot be regarded as the guarantor's reconfirmation of the guarantee debt beyond the limitation period, nor can it be proved that the guarantor waives the right to defend against the limitation period.

(4) If the creditor specifically issues a notice to the guarantor to assume the guarantee liability, even if the limitation period has expired or the guarantee liability period has expired, as long as the guarantor signs or seals the demand notice, it shall be regarded as a reconfirmation of the guarantor's guarantee liability for the original debt, and the guarantor cannot be exempted from liability according to Fa Shi [1999] No. 7 "Reply on the Legal Effect of the Borrower's Signature or Seal on the Demand Notice during the Limitation Period of Litigation".

Approval number: Fa Shi [1999] No. 7

(9) Reply of the Supreme People's Court on the Issue of Whether the Repayment Agreement Reached by the Parties Should Be Protected by Law after the Statute of Limitations Period

After study, the reply is as follows:

After the statute of limitations, the repayment agreement reached by the parties on the original debt is a new creditor's right and debt relationship. In accordance with the spirit of Article 90 of the General Principles of the Civil Law of the People's Republic of China, the repayment agreement shall be protected by law.

Approval number: Fa Fu [1997] No. 4

10. Reply of the Supreme People's Court on the Issue of When the Statute of Limitations Period for the Debtor Fails to Perform the Debt after the Expiration of the Agreed Time Limit and Fails to Perform the Debt and Fails to Repay the Debt

After study, the reply is as follows:

According to the report of your court, the parties originally agreed that after the supplier delivers the goods, the buyer will pay immediately. After receiving the goods, the buyer wrote an arrears note with no repayment date with the consent of the supplier.

According to Article 140 of the General Principles of the Civil Law of the People's Republic of China, the statute of limitations should be deemed to have been interrupted. If the supplier has not claimed its rights after the statute of limitations has been interrupted, the limitation period shall be recalculated from the day after the supplier receives the arrears note written by the buyer.

Case number: Fa Fu [1994] No. 3

IV. The judicial views of the trial divisions of the Supreme People's Court

11. The first paragraph of Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases stipulates that: "Where the creditor's rights are transferred, it shall be determined that the statute of limitations shall be interrupted from the date on which the notice of assignment of the creditor's rights reaches the debtor. "However, if the statute of limitations has expired before the publication of the Announcement on the Transfer and Collection of Creditor's Rights, can the new creditor regain the right to prevail as a result of this announcement?

Opinion Analysis:

Article 195 of the Civil Code stipulates that: "In any of the following circumstances, the statute of limitations shall be interrupted, and the statute of limitations shall be recalculated from the time of the interruption and the conclusion of the relevant procedures: (1) the obligee submits a request for performance to the obligor; (2) The obligor agrees to perform the obligation; (3) The right holder initiates a lawsuit or applies for arbitration; (4) Other circumstances that have the same effect as filing a lawsuit or applying for arbitration. It can be seen that, unless otherwise provided by law for the statute of limitations, there are no more than four reasons for the interruption of the statute of limitations: filing a lawsuit or applying for arbitration, a request or agreement to perform by one of the parties, and other circumstances that have the same effect as filing a lawsuit or applying for arbitration. The assignment of creditor's rights alone does not have the legal effect of interrupting the statute of limitations. In the case of assignment of creditor's rights, the civil subject to which the creditor is transferred enjoys the rights of the original creditor, including making a claim against the debtor and filing a lawsuit. Publication of the "Announcement on the Transfer and Collection of Creditor's Rights" in influential media at the national level or at the provincial level where one of the unaccounted parties is domiciled is undoubtedly a way for creditors to assert their rights. If the claim involved in the announcement is still within the statute of limitations, whether the debtor sees the announcement or not, it will give rise to the legal consequences of the interruption of the statute of limitations. However, if the creditor's rights involved in the announcement have already expired, Article 192 of the Civil Code stipulates: "If the limitation period expires, the obligor may raise a defense of non-performance of the obligation, and if the obligor agrees to perform after the expiration of the limitation period, the obligor shall not defend on the grounds that the limitation period has expired; Where the obligor has already voluntarily performed it, it must not be returned. "Whether the creditor's claim can be realized depends entirely on whether the debtor exercises the right to defend the statute of limitations. In other words, if the debtor voluntarily performs after the expiration of the statute of limitations, it is not subject to the statute of limitations; Once the debtor exercises the right to defend against the statute of limitations, the people's court can only reject the creditor's claim.

There is a view that there is no precondition in the provisions of Article 17, Paragraph 1 of the Provisions. In other words, the judicial interpretation does not stipulate that the statute of limitations shall be suspended from the date on which the notice of assignment of the claim reaches the debtor only when the statute of limitations has not expired. In our view, this view is a misreading of the above-mentioned judicial interpretation of the Supreme People's Court.

First, there is no need to talk about interruption until the statute of limitations has expired, and there is no need to interrupt the statute of limitations period that has already expired.

Second, when interpreting a specific judicial interpretation provision, attention should be paid to the position of the provision in the entire judicial interpretation, so as to help to understand the problems to be solved in the part of the judicial interpretation as a whole. Articles 8 to 17 of the Provisions are precisely used to explain the relevant issues of the interruption of the statute of limitations, and the precondition that the statute of limitations has not expired should be the proper meaning of these provisions.

Third, if the Announcement on the Transfer and Collection of Creditor's Rights can "bring back to life" the claims that have passed the limitation period, the statute of limitations can start again; Then, wouldn't it be possible for people to regain the right to win a lawsuit by assigning and announcing the creditor's rights that have expired within the statute of limitations? In that case, the statute of limitations system would be useless.

In summary, we believe that the collection announcement cannot "bring back to life" the claims that have expired within the limitation period.

Source: Q&A on Civil Trial Practice compiled by the First Division of Civil Trial of the Supreme People's Court.

12. The legal characteristics of the waiver of the statute of limitations.

The waiver of the benefit of the statute of limitations has the following basic legal characteristics:

First, the waiver of the statute of limitations can be carried out in an explicit or implied manner. The express method includes the expression of intent to waive the statute of limitations to the creditor in oral, written and other expressive ways, and the implicit way can be accomplished by direct performance and other means.

Second, the waiver of the statute of limitations is an act of disposition after obtaining the right to defend against the statute of limitations. The statute of limitations rules are statutory, and the benefits of the statute of limitations are not allowed to be waived in advance, and can only be freely disposed of by the obligor after the expiration of the statute of limitations period to decide whether to exercise them.

Third, the waiver of the limitation interest is a unilateral voluntary act, and if the obligor waives the limitation interest, it can take effect only by unilateral expression of intent, without the consent of the right holder. Of course, if both parties waive the statute of limitations by signing an agreement, it is not unavoidable.

Source: The Supreme People's Court's Leading Group for the Implementation of the Civil Code, Understanding and Application of the General Provisions of the Civil Code of the People's Republic of China, People's Court Press, July 2020.

13. Form of waiver of interest in the statute of limitations.

The waiver of the limitation interest may be carried out in an express or implied manner, and the specific methods provided for in this article mainly include the following two types:

I. The obligor agrees to perform

After the expiration of the statute of limitations, if the obligor agrees to perform, the interest in the statute of limitations must not be asserted again. The so-called consent to perform obligations means that the obligor acknowledges and agrees to perform obligations.

The following requirements must be met for the determination obligor to agree to perform:

First, it is necessary to make an expression of intent for the obligor or a person who can act as an agent or on behalf of the obliger.

The waiver of the benefit of the statute of limitations is a legal act, and the expression of intent should be made by the obligor, the obligor's legal representative, the obligor's representative, and other persons authorized by the obligor.

Second, the agreement to perform the obligation is an act of promise, and the actual performance is not necessary, as long as the obligor's expression of intent to agree to perform reaches the obligee's level, the expression of intent to agree to perform will take effect.

The obligor's consent to performance mainly includes the following forms:

The first is an oral or written expression of willingness to perform, which can be a unilateral expression of intent by the obligor, or it can be agreed by the parties through an agreement.

The second is to issue a repayment plan or reach a repayment agreement with the creditor. If the obligor issues a repayment plan or reaches a repayment agreement with the creditor, and has an obvious intention to agree to performance, it shall be deemed to have agreed to performance.

The third is to request an extension of performance. The obligor's request for postponement of performance is premised on agreeing to performance, and only the time for performance is limited to the request.

The fourth is to entrust a third party to perform on behalf of the party. The obligor entrusts a third party to perform on its behalf, and the third party is the obligor's performance assistant and can determine that the obligor agrees to perform.

Fifth, it provides guarantees for debts. If the obligor voluntarily provides security for the debt after the expiration of the statute of limitations, it may be determined that the obligor agrees to perform.

Sixth, the debts that have not yet expired the statute of limitations are used to offset them. If the creditor's rights that have expired within the limitation period have no effect of voluntary set-off, the obligor shall be deemed to have waived the statute of limitations benefits by actively offsetting the creditor's rights that have not expired within the limitation period.

II. The obligor has voluntarily performed

When the statute of limitations expires, the claim and disposition effect of the claim are weakened, and the enforceability of the claim is lost, but it still has the holding force and can accept the performance of the obligor.

If the obligor voluntarily performs it, it is to waive the benefit of the statute of limitations, and it can no longer request the creditor to return it.

If, after the obligor voluntarily completes partial performance, it does not express or express its consent to perform the remaining part, nor does it continue to perform, how can the validity of the obligor's partial performance be determined?

First of all, the obligor can no longer request the return of the part that has been actually performed, which is the due meaning of the obligor's voluntary performance.

Secondly, with respect to the unperformed part, with reference to the provisions of Article 16 of the Judicial Interpretation of the Supreme People's Court on the Understanding and Application of the Statute of Limitations in Civil Cases, if the obligor makes a partial performance commitment or act, it shall be deemed that the obligor agrees to perform the obligation, so if the obligor only voluntarily completes partial performance, the remaining part shall also be deemed to have agreed to perform.

Source: The Supreme People's Court's Leading Group for the Implementation of the Civil Code, Understanding and Application of the General Provisions of the Civil Code of the People's Republic of China, People's Court Press, July 2020.

14. The legal consequences of waiver of the statute of limitations.

The legal consequences of waiver of interest in the statute of limitations can be divided into two levels:

The first level is the direct legal consequences of the waiver of the statute of limitations, that is, whether the waiver is valid;

The second is the new legal effect brought about by the waiver of the interest in the statute of limitations.

There is no dispute about the legal consequences of the extinction of the creditor-debtor relationship after voluntary performance, but what is at issue is the legal effect of agreeing to performance.

It has been argued that consent to performance has the effect of interrupting the statute of limitations.

This view confuses the consent to perform after the expiration of the litigation period and the consent to perform within the limitation period, and the interruption of the limitation period can only occur during the limitation period, and there is no room for the interruption of the limitation period to apply if the limitation period has expired.

If the obligor agrees to perform after the expiration of the statute of limitations, the original creditor's right shall be converted from an incomplete creditor's right to a complete creditor's right, and the statute of limitations period shall start anew.

For example, in the case of Yang v. Qu and Du confirming a dispute over the joint debts of husband and wife[6], the court held that one of the debtors in the joint debts of the husband and wife committed to perform the original debt after the expiration of the statute of limitations constituted a new debt, and should be recognized as a personal debt of one of the husband and wife, and if the creditor demanded that the husband and wife bear joint and several liability for the new debt, the people's court would not support it.

Source: The Supreme People's Court's Leading Group for the Implementation of the Civil Code, Understanding and Application of the General Provisions of the Civil Code of the People's Republic of China, People's Court Press, July 2020.

15. The burden of proof for the expiration of the statute of limitations.

With regard to the burden of proof upon the expiration of the statute of limitations, there are inconsistent understandings and practices in practice.

There is a view that the burden of proof should be allocated according to whether the right has exceeded 3 years after the establishment of the right, and for claims that have exceeded 3 years, the creditor should bear the burden of proof to prove that the limitation period for claims has not expired;

There is also a view that the defense of limitation is a defense of obstruction of rights, and the burden of proof should be borne by the claimant, i.e., the debtor;

There is also a view that the creditor's claim for creditor's right should be supported by the court only if it proves that the limitation period for the creditor's right has not expired.

The above view does not distinguish between the burden of proof in the sense of conduct and the burden of proof in the sense of result.

With regard to the burden of proof in the sense of conduct, both parties have the need and obligation to present evidence in order to avoid the consequences of losing the case or unclear truthfulness.

However, the burden of proof in the sense of result is determined by one party, and will not change due to the difference in the creditor and the time of asserting the claim.

Article 91 of the Judicial Interpretation of the Civil Procedure Law stipulates that: "The people's court shall determine the burden of proof in accordance with the following principles, unless otherwise provided by law: (1) the party asserting the existence of a legal relationship shall bear the burden of proof on the basic facts that gave rise to the legal relationship; ”

According to this article, the Civil Procedure Law of the People's Republic of China adopts a statutory burden of proof in the sense of result, that is, the party claiming that the right has been obstructed shall bear the burden of proof to prove the basic fact that the right has been obstructed, that is, when the truth or falsity is unclear, the debtor shall bear the burden of proof that the statute of limitations has expired, otherwise it will bear adverse consequences.

It should be noted that the burden of proof in the sense of result is only applicable when the truth or falsity is unclear, and both parties will actively exercise the burden of proof in order to avoid losing the case or unclear the truth or falsity, and the people's court should also guide and encourage the parties to submit evidence, but this is not the allocation of the burden of proof in the sense of the result.

For example, in the above view, if the right has been established for more than three years, the creditor will actively provide evidence on the time when it knew or should have known that the right was infringed and that there was a suspension or interruption during the statute of limitations, while the debtor will provide evidence for the fact that the right has been infringed for more than three years.

However, the creditor's proof is to win the case, and theoretically, because the burden of proof in the sense of result lies with the debtor, the creditor can leave the debtor without proof and leave the debtor to prove that the statute of limitations has expired or is unclear.

Of course, as a rational litigant, the burden of proof in the sense of conduct will not be waived if it can provide evidence.

Source: The Supreme People's Court's Leading Group for the Implementation of the Civil Code, Understanding and Application of the General Provisions of the Civil Code of the People's Republic of China, People's Court Press, July 2020.

16. The obligor only agrees to the processing of partial performance

In practice, some debtors admit the existence of claims that have expired within the statute of limitations, but expressly agree to perform only part of the debts on the grounds of insufficient ability to pay, and exercise the statute of limitations defense against the remaining debts.

This situation is different from the situation where the obligor makes a partial performance commitment or act by referring to the provisions of Article 16 of the Judicial Interpretation of the Supreme People's Court on the Understanding and Application of the Statute of Limitations in Civil Cases.

Whether or not to exercise the right of limitation defense is within the scope of the obligor's free decision, and in the case where the creditor's rights are separable, if the obligor expressly exercises the right of limitation defense against part of the creditor's rights, it does not violate the mandatory provisions of the law and does not harm the public interest, so it should be allowed.

Source: The Supreme People's Court's Leading Group for the Implementation of the Civil Code, Understanding and Application of the General Provisions of the Civil Code of the People's Republic of China, People's Court Press, July 2020.

17. Determination of the validity of the debtor's signature on the debt confirmation or collection documents that have expired within the statute of limitations

In practice, from the debtor's point of view, documents signed or sealed by the debtor are divided into two categories in nature:

The first type is the documents that admit the existence of the creditor's rights, such as confirmation letters, statements, confirmations, arrears bills, etc., if there is no intention to require performance on these documents, the debtor's signature and seal only represents an acknowledgment of the existence of the creditor's rights that have expired during the limitation period, and does not lead to the waiver of litigation interests.

The other type is the documents agreeing to perform the creditor's rights, such as demand notes, performance letters within a time limit, etc., if these documents have the intention of demanding performance, and there is no evidence that the debtor's signature or seal only indicates the receipt of the above-mentioned documents, according to the provisions of the Reply of the Supreme People's Court on the Legal Effect of the Borrower's Signature or Seal on the Demand Notice during the Limitation Period, it should be deemed that the debtor has agreed to perform and waived the statute of limitations.

Source: The Supreme People's Court's Leading Group for the Implementation of the Civil Code, Understanding and Application of the General Provisions of the Civil Code of the People's Republic of China, People's Court Press, July 2020.

V. The gist of the Supreme People's Court's typical ruling

18. After the expiration of the statute of limitations, if the debtor voluntarily performs part of the natural debts, it does not constitute a reconfirmation of all debts, and does not produce the legal effect of restarting the statute of limitations for the remaining unperformed debts - Zhang Fan and Golden Sunshine (Fujian) Investment Development Co., Ltd. Private Lending Dispute Retrial Review and Trial Supervision Civil Ruling

Summary of the Trial:

On the issue of whether Golden Sunshine Company's return of 3 million yuan could cause the statute of limitations in this case to be interrupted. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases stipulates that: "Where upon the expiration of the statute of limitations, one party makes an expression of intent to agree to perform its obligations to the other party or voluntarily performs its obligations, and then makes a defense on the grounds that the statute of limitations has expired, the people's court shall not support it." The "expression of intent to agree to perform obligations" in the above provisions should be strictly interpreted, that is, the debtor should clearly express that it has abandoned the benefit of the statute of limitations and agreed to perform the remaining repayment obligations, such as reaching a repayment agreement and signing a confirmation of creditor's rights. Based on the facts of this case, Golden Sunshine did not expressly agree to perform the repayment obligation of the remaining loans, and the two parties did not reach a repayment agreement. Therefore, it was not improper for the original trial court to hold that Golden Sunshine Company's return of RMB 3 million after the statute of limitations period expired as a waiver of the company's right to defend against the statute of limitations for all debts.

Case No.: (2019) Zui Gao Fa Min Shen No. 4337

19. Even if the court finally finds that the plaintiff's lawsuit is beyond the statute of limitations and dismisses the claim, its application for property preservation is not necessarily erroneous - the retrial of the case of Zhoushan Waidai Freight Co., Ltd. and the respondent Dalian Fenghai Ocean Fishery Co., Ltd. in the application for property preservation damage liability dispute

Summary of the Trial:

I. The losses suffered by the respondent due to the error in the application for preservation belong to the scope of tortious acts, and in the absence of special provisions of the law, whether there is an error in the application for preservation shall be judged in accordance with the relevant provisions of the Tort Liability Law of the People's Republic of China. The law does not specifically provide for the application of the principle of presumption of fault or no-fault liability to the lawful rights and interests of others due to the erroneous application for property preservation, so the act is a general tort, and the principle of fault liability should be applied.

Article 20 of the Law of the People's Republic of China on Special Procedures for Maritime Litigation stipulates that: "If the maritime claimant makes a mistake in applying for maritime preservation, it shall compensate the respondent or interested party for the losses suffered thereby." Article 105 of the Civil Procedure Law of the People's Republic of China stipulates that: "If there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation." "The Special Procedure Law of the People's Republic of China on Maritime Litigation and the Civil Procedure Law of the People's Republic of China do not have further clear provisions on how to determine whether an application is erroneous. The losses suffered by the respondent due to the error in the application for preservation belong to the scope of tortious acts, and in the absence of special provisions in the law, whether there is an error in the application for preservation should be determined in accordance with the relevant provisions of the Tort Liability Law of the People's Republic of China. Article 6 of the Tort Liability Law of the People's Republic of China stipulates that "an actor who infringes upon the civil rights and interests of others due to his fault shall bear tort liability. Where the perpetrator is presumed to be at fault in accordance with the provisions of law, and the perpetrator cannot prove that he is not at fault, he shall bear tort liability. Article 7 stipulates: "Where an actor harms the civil rights and interests of others, regardless of whether the actor is at fault or not, and the law provides that he shall bear tort liability, follow those provisions." ”

The Supreme People's Court held that, based on the above provisions, the principle of attribution of fault for general torts is based on fault, and the principle of presumption of fault or no-fault liability applies only if there are special provisions in the law. The law does not specifically provide for the application of the principle of presumption of fault or no-fault liability for the infringement of the lawful rights and interests of others due to the erroneous application for property preservation, so the act is a general tort, and the principle of fault liability should be applied, that is, the application for preservation error must be based on the applicant's subjective fault, the illegality of the objective act, the objective existence of the fact of damage, and the causal relationship between the fact of damage and the act of application. According to the rules on the allocation of the burden of proof for the claimant who bears the burden of proof, the claimant for preservation damages shall fully present evidence that the application for preservation meets the above requirements.

II. The issue of whether the plaintiff's right to claim has exceeded the statute of limitations is still disputed by professional judges, and if the applicant is required to know the conclusion of the legal issues in dispute before the conclusion of the case, it is undoubtedly an excessively strict duty of care requirement for the applicant. Since the applicant did not know or could not know the final judgment of the case when applying for property preservation, the judgment of the parties on the facts in dispute and their rights and obligations may not be consistent with the judgment of the court. If the basis for judging whether the application for preservation is wrong is only whether the litigation claim of the preservation applicant is supported, the duty of care required by the parties in applying for preservation is too stringent, which will prevent the bona fide parties from protecting their legitimate rights and interests through the litigation preservation procedures in accordance with the law.

Case No.: (2018) Supreme Law Min Shen No. 6289

20. Whether the asset appraisal report of the enterprise at the time of sale indicates whether the debt that has exceeded the statute of limitations can lead to the re-calculation of the statute of limitations for the original debt-a loan contract dispute case

Summary of the Trial:

Although the seller's asset appraisal report in the enterprise sale contract specifies the debts that have exceeded the limitation period, it does not constitute a reason for the seller to waive the defense of the statute of limitations and reconfirm the debts.

According to the current laws of the mainland, debts that have exceeded the statute of limitations are natural debts, and the debtor has the right to defend against the statute of limitations and has the right to refuse to perform the debt. The seller's Asset Appraisal Report in the sales contract of the enterprise states that the debts that have exceeded the statute of limitations, which is a record of the existence of the seller's claims and debts as the debtor, and does not constitute a cause for the seller to waive the defense of the statute of limitations and reaffirm the debts, and the natural debts do not restore the compulsory force of court protection. The buyer's public bidding for the seller's assets is also a confirmation of the buyer's facts about the debt, but if the buyer does not express its willingness to perform its obligations, it cannot be deemed to have waived its right to defend against the statute of limitations. The criterion for determining whether the debtor voluntarily repays its natural debts shall depend on whether the debtor has expressed its intention to voluntarily repay its natural debts, and such expression of intent should be made expressly to the creditor and cannot be inferred. When the buyer accepts the seller's assets, it of course also accepts the seller's debt, but the debt it accepts is a natural debt, and it accepts the natural debt at the same time as it accepts the defense of the statute of limitations of the natural debt. The acceptance of a natural debt and the willingness to repay it are two different issues, and the acceptance of a natural debt does not lead to an indication of intent to pay the debt to a particular creditor. Without a clear expression of intent to a particular creditor, there can be no new debt settlement agreement, and without a new debt settlement agreement, it will not lead to the re-commencement of the original debt statute of limitations.

Case No.: [2008] Min Yi Zhong Zi No. 74

21. If the creditor and the debtor agree to settle and settle the debt, and also agree that a third party will provide guarantee for the debt, it can be determined that the debtor has made an expression of intent to agree to repay the debt-Zheng Yulin and Rugao Jinding Real Estate Co., Ltd. Equity Transfer Dispute Retrial Review and Trial Supervision Civil Ruling

Summary of the Trial:

The Supreme Court held that, based on the facts ascertained in the original review, item 3 of the Minutes of the Shareholders' Meeting of Rugao Jinding Real Estate Co., Ltd. dated October 20, 2013 stated: 'Regarding the debt issue of Ye Hongbin, Zheng Yulin and Jinding Real Estate Company. The debtor and Jinding Real Estate Company shall settle the settlement before October 31, 2013, and Ye Hongbin shall repay the above debts with his equity guarantee in Jinding Real Estate Company. Before the debts of Zheng Yulin and Jinding Real Estate Company were not settled, Ye Hongbin could borrow from the company according to the proportion of his own equity. Wu Haohao, Lin Guoliang, Zheng Yulin, Chen Yiguo, and She Junxian guarantee the repayment of the above personal debts of Zheng Yulin and Jinding Real Estate Company in accordance with the equity ratio determined at this meeting. This item not only reflects that the debt between Zheng Yulin and Jinding Real Estate Company should be settled and settled, but also stipulates that the relevant personnel will provide guarantee for the debt. At the same time, the "debt issue between Zheng Yulin and Jinding Real Estate Company" in this item should refer to all the debts owed by Zheng Yulin to Jinding Real Estate Company, and Zheng Yulin did not adduce evidence to prove that the agreement did not include the debts involved in this case. The above can confirm that Zheng Yulin has expressed his intention to agree to the return of all debts including the debts involved in the case to Jinding Real Estate Company.

Case No.: (2018) Zui Gao Fa Min Shen No. 416

22. If the debtor signs and seals the creditor's rights transfer agreement signed by the creditor and a third party, it can be determined that the original debt has been reconfirmed - Guangxi Guigang Hongda Real Estate Co., Ltd. and Lianyuan Iron and Steel Revitalization Enterprise Co., Ltd. Civil ruling on the retrial review and trial supervision of the financial non-performing debt recovery dispute

Summary of the Trial:

The Supreme Court held that: on April 29, 2000, the Hunan Branch of the Industrial and Commercial Bank of China and the Changsha Office of China Huarong Asset Management Corporation signed the Agreement on the Transfer of Creditor's Rights, stipulating that its claims against China Automobile Company (the principal of the loan of 10.5 million yuan and the interest of 3,443,555 yuan) were transferred to the Changsha Office of Huarong Company. On June 30, 2000, CAIC signed and confirmed the Creditor's Rights Transfer Agreement, and in November 2000, it issued a receipt to the Changsha office of Huarong Company to affix and confirm the outstanding loan (principal of 10.5 million yuan and interest of 4,226,316.05 million yuan), but CAIC never fulfilled its repayment obligations. On May 14, 2003, the Changsha Office of Huarong Company issued a Notice of Collection of Payments and Interest to China Automobile Company, and on May 16, 2003, China Automobile Company issued a receipt to sign and confirm the outstanding loan (principal of 10.5 million yuan and interest of 7,298,941,490 yuan). ...... By the time Huarong Company received the creditor's rights on April 29, 2000, the two-year statute of limitations had already expired. However, due to the reconfirmation of the original debt signed and sealed by CAIC on May 16, 2003, the statute of limitations began to run again from that date.

Case No.: (2016) Zui Gao Fa Min Shen No. 3665

23. After the expiration of the statute of limitations, the debtor voluntarily repaid the debt with the house, so that it lost the right to defend against the statute of limitations--Anshan Lishan Branch of Agricultural Bank of China Co., Ltd., Anshan Power Supply Company of State Grid Liaoning Electric Power Co., Ltd., and Northeast Branch of China Power Finance Co., Ltd

Summary of the Trial:

The Supreme People's Court held that the original trial court's determination that the two-year statute of limitations had elapsed before Anshan Power Supply Company used the house to settle the debt was not improper. Anshan Power Supply Company's behavior of voluntarily repaying its debts with housing after the statute of limitations period had expired for its creditor's rights had expired, causing it to lose its right to defend against the statute of limitations. According to Article 138 of the General Principles of the Civil Law of the People's Republic of China, 'if the limitation period for litigation is exceeded, if the parties voluntarily perform after the limitation period, they are not subject to the limitation period. Article 22 of this court's "Provisions on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases" also stipulates: "Where upon the expiration of the statute of limitations, a party expresses its intention to the other party to perform its obligations or voluntarily performs its obligations, and then makes a defense on the grounds that the statute of limitations has expired, the people's court will not support it." Therefore, the Anshan Power Supply Company's defense on the ground that the statute of limitations had expired after voluntarily repaying the debt with the house should not be supported.

Case No.: (2015) Min Er Zhong Zi No. 39

24. The act of signing the "Demand Notice" by the legal representative in the exercise of his duties can be regarded as a reconfirmation of the debt borne by the company that has passed the statute of limitations - a loan contract dispute between Qinghai Weide Biotechnology Co., Ltd. and Beijing Meiyasi Phospholipid Technology Co., Ltd

Summary of the Trial:

The Supreme People's Court held that in this case, Meiyas Company issued two pieces of documentary evidence, the "Notice of Reminder" and the "Letter of Apology". The documentary evidence bears the signature of Yin Hong, the then legal representative of Weide Company, and the payment was made on January 22 and 24, 2011 respectively. Although the documentary evidence was not stamped with the seal of Weide Company, based on the reconciliation records formed by the two parties and the identity of Yin Hong's legal representative at that time, it should be determined that Yin Hong was acting on behalf of Weide Company. ...... Even if Yin Hong's replacement time was after the expiration of the statute of limitations, because Yin Hong was the legal representative of Weide Company at the time, it should be determined that Weide Company still recognized the existence of the above-mentioned debts and agreed to continue to perform them on the date of the replacement of the visa, and the people's court did not support his defense on the grounds that the statute of limitations had expired. Therefore, the court of first instance was correct in not supporting Weide Company's claim that the statute of limitations had expired. Weide Company claimed that there was malicious collusion between Meiyas and Yin Hong, but did not provide relevant evidence to prove it, and it was not improper for the trial court not to support its claim.

Case No.: (2013) Min Shen Zi No. 1561

25. If the legal representative undertakes to sell the company's assets and repay the debts during the public security inquiry, it shall be deemed that he has made an expression of intent to agree to perform the debts - Dujiangyan Yinghua Aluminum Co., Ltd. and Chengdu Yingbo Investment Co., Ltd. applied for a retrial of the civil ruling on the dispute over the right of guarantee recovery

Summary of the Trial:

The Supreme People's Court held that, according to the facts of this case, Yingbo Company had the right to exercise the right of guarantee recovery against Yinghua Aluminum Company after performing its guarantee obligation to repay the loan on behalf of Yinghua Aluminum Company on September 30, 2002. Although the statute of limitations expired due to Yingbo's failure to assert its rights before September 30, 2004, Qiu He, the legal representative of Yinghua Aluminum, promised to repay Yingbo's debts by selling the assets of Yinghua Aluminium Company during an inquiry by the Dujiangyan Municipal Public Security Bureau, which was an expression of his intention to re-agree to perform the debt that had expired. According to Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases, the statute of limitations in this case was recalculated from June 16, 2009. Therefore, Yingbo filed a lawsuit with the court of first instance on April 26, 20l0, which did not exceed the two-year statute of limitations.

Case No.: (2012) Min Zai Shen Zi No. 208

26. If the borrower signs or seals the demand notice during the limitation period, it shall be regarded as a reconfirmation of the original debt, so the creditor's right is still protected by law. The debtor's waiver of the right to defend against the expiration of the statute of limitations has no legal effect on the guarantor - China Orient Asset Management Corporation Dalian Office v. Liaoning Huaxi Group Co., Ltd. et al., a loan guarantee dispute appeal

Summary of the Trial:

The Supreme People's Court held that there was no evidence to prove that there was an agreement between the Provincial Bank of China and the livestock company to postpone repayment, and that the Provincial Bank of China issued a notice of collection of loans to the livestock company on August 31, 1999 and September 13, 1999. However, on August 31, 1999 and September 13, 1999, the Provincial Bank of China issued two collection notices to the livestock company, and the animal husbandry company affixed its seal to the notice, and in accordance with the provisions of the Court's Fa Shi (1999) No. 7 "Reply on the Legal Effect of the Borrower's Signature or Seal on the Demand Notice During the Period of Limitation of Litigation", the seal affixed by the animal husbandry company to the collection notice should be regarded as a reconfirmation of the original debt, so the creditor's right is still protected by law. According to the judicial interpretation, the nature of the borrower's animal husbandry company's act of stamping the collection notice is a waiver of the right to defend the original creditor's right brought about by the expiration of the statute of limitations, and the court of first instance ruled that the livestock company bears the responsibility for repayment of the original creditor's right, which is in line with the provisions of the judicial interpretation and should be upheld. The guarantor, Times Company, expressly promised in the Irrevocable Guarantee that "this guarantee shall continue to be valid when Bank of China agrees to postpone repayment", but due to the lack of evidence to prove the fact that there was an agreement between Bank of China and the livestock company to postpone repayment, the main creditor's right has exceeded the statute of limitations, and in accordance with the provisions of Paragraph 1 of Article 20 of the Guarantee Law, the main debtor has obtained the right of defense arising from the expiration of the statute of limitations for the main creditor's right in accordance with the law. Although the animal husbandry company subsequently stamped the collection notice and waived the defense right of the expiration of the statute of limitations of the original creditor's rights, in accordance with the provisions of Article 20, Paragraph 1 of the Guarantee Law, the guarantor can still exercise the defense right waived by the debtor, and the waiver of the defense right of the livestock company upon the expiration of the limitation period has no legal effect on Times Company.

27. The debtor's expression of intent to agree to perform the debt after the expiration of the statute of limitations for creditor's rights must be clear and unambiguous - the case of retrial of the applicant Li Moudong and the respondent Luo, Zheng and Wu Mouran over a dispute over a ship sales contract

Summary of the Trial:

After the expiration of the statute of limitations, the debt between the parties becomes a natural debt, and the creditor loses the right to prevail. However, if the debtor expresses its intention to agree to perform the debt or voluntarily performs the debt, it cannot later retract it on the ground that the statute of limitations has expired. Since the debtor's expression of intent to agree to perform the debt or voluntarily perform the debt is an act of the debtor voluntarily waiving the benefit of the statute of limitations and re-establishing its obligations, such expression of intent must be clear and unambiguous.

On the issue of whether the original judgment was indeed wrong in applying the law in determining the statute of limitations in this case. Article 135 of the General Principles of the Civil Law of the People's Republic of China stipulates: "The statute of limitations for filing a request to the people's court for protection of civil rights shall be two years, unless otherwise provided by law. Article 138 stipulates: "Where the period of limitation for litigation has expired and the parties voluntarily perform it, it is not subject to the limitation period. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases stipulates: "Where upon the expiration of the statute of limitations, one party makes an expression of intent to agree to perform its obligations to the other party or voluntarily performs its obligations, and then makes a defense on the grounds that the statute of limitations has expired, the people's court shall not support it." ”

The Supreme People's Court held that, according to the above provisions, after the expiration of the limitation period, the debts between the parties become natural debts, and the creditors lose the right to prevail. However, if the debtor expresses its intention to agree to perform the debt or voluntarily performs the debt, it cannot later retract it on the ground that the statute of limitations has expired. Since the debtor's expression of intent to agree to perform the debt or voluntarily perform the debt is an act of the debtor voluntarily waiving the benefit of the statute of limitations and re-establishing its obligations, such expression of intent must be clear and unambiguous.

Case No.: (2017) Zui Gao Fa Min Shen No. 3063

28. If the contract stipulates that liquidated damages shall be calculated on a "day" basis, each date on which the liquidated damages claim arises shall be calculated separately when calculating the statute of limitations for liquidated damages - a case of dispute over the contract for the transfer of the right to use construction land between the applicant Shucheng County Natural Resources and Planning Bureau and the respondent Shucheng Zhonghao Real Estate Co., Ltd

Summary of the Trial:

According to the ascertained facts in this case, the calculation method of liquidated damages stipulated in the Contract for the Transfer of the Right to Use State-owned Construction Land involved in the case is "to pay liquidated damages to the transferor at the rate of 1‰ of the delayed payment every day from the date of late payment". If the amount of liquidated damages is calculated in "days", it shall be regarded as a continuing claim, and the calculation of the statute of limitations for liquidated damages shall be calculated separately on the date on which each liquidated damages claim arises. Therefore, in accordance with Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations, the judgments of the first and second instance <中华人民共和国民法总则>found that it was not improper for the Shucheng County Natural Resources and Planning Bureau to promptly claim liquidated damages before October 1, 2015, and the expiration of the statute of limitations was not improper. The relevant reasons for the application of the Shucheng County Natural Resources and Planning Bureau cannot be established.

Case No.: (2019) Supreme Law Min Shen No. 6048

29. If there is no evidence to prove that the debtor signs and seals the "Collection Notice" and expresses the intention to agree to perform the debt for which the statute of limitations has expired, it does not constitute a reconfirmation of the debt - a dispute over the recovery of financial non-performing debts between the Hunan Branch of China Cinda Asset Management Co., Ltd., the applicant, and the People's Government of Heshi Town, Quyuan Management District, Yueyang City, the respondent

Summary of the Trial:

I. The reconfirmation of debts that have expired during the limitation period must meet the requirements of the debtor's intention to agree to perform the obligation or voluntarily perform the obligation. If the debtor signs and confirms on the "Collection Notice" issued by the creditor only indicates that it has received the collection notice, and there is no evidence to prove that the debtor has agreed to perform the debt for which the statute of limitations has expired, it does not constitute a reconfirmation of the debt. This action also does not give rise to the interruption of the statute of limitations.

Article 138 of the General Principles of the Civil Law of the People's Republic of China stipulates that "if the limitation period exceeds the statute of limitations, the parties shall not be subject to the limitation period if they voluntarily perform". Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations in the Trial of Civil Cases stipulates that: "Where upon the expiration of the statute of limitations, one party makes an expression of intent to agree to perform its obligations to the other party or voluntarily performs its obligations, and then makes a defense on the grounds that the statute of limitations has expired, the people's court shall not support it." The Supreme People's Court held that, according to the above provisions, the reconfirmation of debts that have expired during the limitation period must meet the requirements of the debtor's expression of intent to agree to perform the obligation or voluntarily perform the obligation. In this case, judging from the facts ascertained in the original examination, the signature and seal confirmation of the collection notice involved in the case by the Heshi Township Government only indicated that it had received the collection notice, and there was no evidence to prove that the debtor had agreed to perform the debt for which the statute of limitations had expired, which did not constitute a reconfirmation of the debt. Accordingly, the court of first instance found that the statute of limitations had expired and rejected the claim of Hunan Branch of Cinda Company, which was not improper. Taking a step back, even if the signature and seal of the Heshi Township Government on the collection notice involved in the case is regarded as a reconfirmation of the original debt, the limitation period was restarted in 2007 and 2010, and the limitation period for the claims involved in the case also expired again in 2012.

II. If the whereabouts of the defendant debtor are not unknown, and the creditor has no evidence to prove that there are circumstances otherwise specified in laws and judicial interpretations, the creditor's act of directly publishing a collection notice in a newspaper cannot produce the effect of interrupting the statute of limitations.

Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases stipulates that: "In any of the following circumstances, it shall be deemed that 'a request by one of the parties' as provided for in Article 140 of the General Principles of the Civil Law shall have the effect of interrupting the statute of limitations...... (4) Where one of the parties' whereabouts is unknown, and the other party publishes a public notice with content for asserting rights in influential media at the national level or at the provincial level where one of the party's whereabouts is unknown, but laws and judicial interpretations provide otherwise, apply those provisions. ”

The Supreme People's Court held that in this case, the whereabouts of the Heshi Town Government were not unknown, and the Hunan Branch of Cinda Company had no evidence to prove that there were circumstances otherwise specifically provided for by laws and judicial interpretations. Accordingly, the Hunan Branch of Agricultural Bank of China Co., Ltd. and the Yueyang Branch of Agricultural Bank of China Co., Ltd. published collection announcements in Hunan Daily and Sanxiang Metropolis Daily could not produce the effect of interrupting the statute of limitations.

Case No.: (2020) Zui Gao Fa Min Shen No. 6203

30. After the expiration of the application for enforcement, whether the person subject to enforcement can defend on the grounds that the period has expired after the person subject to enforcement has made an expression of intent to perform voluntarily - Qingdao Juhao Electronics Co., Ltd., Wang Moujin, Guan Mouben, and Guan Mouhong Enforcement Disputes

Summary of the Trial:

I. If there is an interruption of the statute of limitations for applying for enforcement, the period of limitation for applying for enforcement shall be recalculated for two years from the time of interruption. After the case is filed for enforcement, if the person subject to enforcement raises an objection to the exclusion of enforcement on the grounds that the applicant for enforcement has not submitted an application for enforcement within the statutory time limit, the people's court shall conduct a review in accordance with the relevant legal provisions.

II. Referring to Article 19 of the Provisions on the Statute of Limitations System for Civil Cases (amended in 2020), in the enforcement procedure, if one party has already expressed its intention to voluntarily perform after the expiration of the period for applying for enforcement, the application for enforcement filed by the other party shall not be supported in accordance with law on the grounds that the period for applying for enforcement has expired.

Trial Reason:

Paragraph 1 of Article 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of the People's Courts (Trial) (Revised in 2020) stipulates that: "The people's court shall meet the following conditions when accepting an enforcement case: (1) the legal document applied for or transferred for enforcement has taken effect; (3) The applicant for enforcement submits the application within the statutory time limit; (4) The legal document for enforcement has payment content, and the subject matter of enforcement and the person subject to enforcement are clear; (5) The obligor fails to perform its obligations within the time limit determined by the effective legal document; (6) It is under the jurisdiction of the people's court subject to the application for enforcement. Accordingly, it is a statutory condition for the people's court to accept an enforcement case if the applicant for enforcement submits an application for enforcement within the statutory period for applying for enforcement. Laws and judicial interpretations also clearly stipulate the statutory time limit for applying for enforcement.

Article 239 of the Civil Procedure Law of the People's Republic of China stipulates that "the period for applying for enforcement shall be two years. Where an application is made for the suspension or interruption of the statute of limitations, the provisions on the suspension or interruption of the statute of limitations shall be applied in accordance with the law. The period provided for in the preceding paragraph is calculated from the last day of the period for performance provided for in the legal document, calculated from the last day of each period for performance provided for in the legal document where the legal document provides for performance in installments, and calculated from the date on which the legal document takes effect where the legal document does not provide for a period for performance. ”

Article 20 of the Interpretation of the Supreme People's Court on <中华人民共和国民事诉讼法>Several Issues Concerning the Application of Enforcement Procedures (amended in 2020) stipulates that: "The statute of limitations for applying for enforcement is interrupted by the application for enforcement, the parties reach a settlement agreement, and one of the parties submits a request for performance or agrees to perform its obligations. From the time of interruption, the limitation period for the execution of the application is recalculated. ”

In accordance with the above-mentioned laws and judicial interpretations, if there is an interruption of the statute of limitations for applying for enforcement, the period of limitation for applying for enforcement shall be recalculated for two years from the time of interruption. After the case is filed for enforcement, if the person subject to enforcement raises an objection to the exclusion of enforcement on the grounds that the applicant for enforcement has not submitted an application for enforcement within the statutory time limit, the people's court shall conduct a review in accordance with the relevant legal provisions.

In addition, with reference to Article 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Statute of Limitations System in the Trial of Civil Cases (amended in 2020), "where upon the expiration of the statute of limitations, if one of the parties expresses to the other party an expression of intent to perform its obligations or voluntarily performs its obligations, and then makes a defense on the grounds that the statute of limitations has expired, the people's court will not support it." Where the parties reach a new agreement on the original debt, and the creditor claims that the obligor waives the right to defend against the statute of limitations, the people's court shall support it. That is, in the enforcement procedure, if one party has already expressed its intention to voluntarily perform after the expiration of the period for applying for enforcement, and then defends the enforcement application submitted by the other party on the grounds that the period for applying for enforcement has expired, it shall not be supported in accordance with law.

Case No.: (2021) Supreme Court Zhijian No. 297

31. After the debtor is deregistered, it no longer has the capacity for civil rights, but it is not improper for the creditor to collect the creditor's rights from the debtor without knowing the fact that the debtor has been cancelled, and it can still have the effect of interrupting the statute of limitations-The appellant Liaoning Xinda Asset Investment Management Co., Ltd. and the appellant Benxi (Iron and Steel) Group Co., Ltd., the defendants of first instance, Benxi Municipal People's Government, Benxi Municipal Audit Bureau, and Liaoning North Coal Chemical (Group) Co., Ltd

Summary of the Trial:

On the issue of whether the statute of limitations has expired for the 8 million yuan creditor's right involved in the case. The 8 million yuan creditor's right enjoyed by Liaoning Cinda to Lianhua Company was obtained from Cinda Shenyang Office through the transfer of creditor's rights, and Cinda Shenyang Office also received the creditor's right from Caitun Branch. After receiving the creditor's rights, the Shenyang office of Cinda collected from Lianhua Company through multiple announcements and other means, resulting in the statute of limitations for the claims involved in the case continuing to be calculated after continuous interruptions. After Liaoning Xinda received the creditor's rights, it also claimed its rights by suing the aftermath office of Lianhua Company and the defendant in this case, and the first-instance judgment found that the statute of limitations for the creditor's rights involved in the case had not expired. The main reason for Benxi Iron and Steel Group's assertion that the statute of limitations for this claim had expired was that the aftermath office of Lianhua Company had served a letter of introduction to the Shenyang office of Cinda on July 22, 2003, and that the Shenyang office of Cinda had clearly known that Lianhua Company had been deregistered, and its claim against Lianhua Company, which no longer had the capacity for civil rights, on July 4, 2005, did not have the legal effect of interrupting the statute of limitations, and when Liaoning Cinda claimed its rights again in 2007, the statute of limitations had expired. However, Benxi Iron & Steel Group did not adduce evidence to prove that the letter of introduction had been delivered to Cinda Shenyang Office in accordance with the law, and it was not improper for Cinda Shenyang Office to collect debts from Lianhua Company without knowing the fact that Lianhua Company had been deregistered. This court does not support Benxi Iron and Steel Group's claim that the statute of limitations has expired.

Case No.: (2021) Gao Gao Fa Min Zhong No. 698

32. If the statute of limitations has expired before the transfer of creditor's rights, the statute of limitations shall not be restarted because of the issuance of a collection announcement at the time of the transfer-A dispute over a financial loan contract between Anhui Branch of China Great Wall Asset Management Co., Ltd. and Lu'an Jin'an Agricultural Production Materials Company

Summary of the Trial:

I. The debtor has been in a state of existence, and does not belong to the situation where the whereabouts are unknown as stipulated in Article 10, Paragraph 1, Item (4) of the Provisions on the Limitation of Actions (Fa Shi [2008] No. 11). Accordingly, even if the bank as a creditor publishes a debt collection announcement in an influential newspaper at the provincial level where the debtor is located, it will not have the legal effect of interrupting the statute of limitations.

II. The premise for claiming the interruption of the statute of limitations is that when the creditor issues an announcement of the transfer with collection content, the creditor's right has not exceeded the statute of limitations prescribed by law. For claims that have exceeded the statute of limitations due to failure to assert rights in a timely manner in accordance with law before the transfer, the effect of restarting the statute of limitations does not arise from the announcement with collection content issued at the time of subsequent transfer.

The Supreme People's Court held that Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving the Acquisition, Management and Disposal of Assets Formed by Non-performing Loans of State-owned Banks by Financial Asset Management Companies (Fa Shi [2001] No. 12) stipulates that if the announcement or notice of the transfer of creditor's rights published by the original creditor bank in an influential newspaper at the national or provincial level contains the content of debt collection, such announcement or notice may be used as evidence for the interruption of the statute of limitations. The premise for claiming the interruption of the statute of limitations in accordance with the foregoing provisions is that the creditor's rights have not exceeded the statute of limitations prescribed by law when the creditor issues an announcement of the transfer with collection content. For claims that have exceeded the statute of limitations due to failure to assert rights in a timely manner in accordance with law before the transfer, the effect of restarting the statute of limitations does not arise from the announcement with collection content issued at the time of subsequent transfer. As mentioned above, the announcement of the collection of creditor's rights published by the Lu'an Branch of the Agricultural Bank of China in the Anhui Economic News before the transfer of the creditor's rights involved in the case did not have the legal effect of interrupting the statute of limitations.

Case No.: (2021) Zui Gao Fa Min Shen No. 1557

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