Whether the mortgagor s repayment interrupts the statute of limitations

According to Article 138 of the General Principles of the Civil Law, "if the limitation period exceeds the statute of limitations, the parties shall not be subject to the limitation period if they voluntarily perform". Article 173 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the "Opinions") stipulates that "after the statute of limitations is interrupted due to the right holder's assertion of rights or the obligor's agreement to perform its obligations, and the obligee claims the rights again within the new statute of limitations period, or the obligor agrees to perform its obligations again, it may be deemed that the statute of limitations has been interrupted again". It can be concluded that the application of this provision is premised on the premise that the interruption of the statute of limitations occurs within the limitation period.

At this time, the obligee's assertion of rights or the obligor's agreement to perform will of course lead to the interruption of the statute of limitations, and there is no limit to the number of times.

Mortgage and statute of limitations.

Article 202 of the Property Law The mortgagee shall exercise the mortgage right within the limitation period of the principal creditor's right; and where it is not exercised, the people's courts will not protect it.

Article 202 of the Property Law repeals the second paragraph of Article 12 of the Interpretation of the Security Law. Although the mortgage is the right of domination, the statute of limitations applies to the mortgage. If the statute of limitations for the creditor's rights secured by the mortgage has elapsed, the mortgagee has the right to refuse to assume the guarantee liability if the mortgagee obtains the right of defense.

The provisions of Article 202 of the Property Law are mandatory, and if the parties agree to exclude the application of this article, the agreement shall be invalid.

However, Article 202 of the newly promulgated Property Law of China only stipulates that if the principal claim exceeds the statute of limitations, the people's court of mortgage rights shall not protect it, and there are no clear provisions on the pledge and lien when the principal claim exceeds the statute of limitations.

Therefore, the statute of limitations applies to mortgage rights.

The statute of limitations is interrupted, but the mortgage remains valid. Because it is still in the period when the mortgage is in effect. The mortgage repentant shall exercise the mortgage right within the limitation period of the main creditor's right, and if the statute of limitations is interrupted, it means that the statute of limitations is recalculated, and the mortgage is still valid at this time.

[Legal basis].Article 419 of the Civil Code.

The mortgagee shall exercise the mortgage right during the period of limitation of the main creditor's right; and where it is not exercised, the people's courts will not protect it.

Article 195.

In any of the following circumstances, the statute of limitations is interrupted, and the statute of limitations period is recalculated from the time of the interruption or 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.

If the statute of limitations for the principal debt is interrupted, the mortgage right is still valid, and the people's court will not protect the mortgage right only when the statute of limitations has expired for the principal debt. The mortgagee's exercise of the mortgage right changes with the interruption of the statute of limitations for the principal claim, but it will not be extinguished.

Legal basis] Article 419 of the Civil Code.

The mortgagee shall exercise the mortgage right within the limitation period of the main creditor's right; and where it is not exercised, the people's courts will not protect it.

Article 394.

In order to guarantee the performance of the debt, if the debtor or a third party does not transfer the possession of the property and mortgages the property to the creditor, the debtor fails to perform the debt due or the mortgage is realized as agreed by the parties, and the creditor has the right to be repaid in priority for the property.

The debtor or third party provided for in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property provided for by the guarantee is the mortgaged property.

The mortgagee shall exercise the mortgage right within the limitation period of the principal creditor's right; If it is not exercised, the people's court will not protect the jujube bureau. In other words, the mortgage period is the same as the period of limitation for the principal debt.

[Legal basis].: Civil Code

Article 419: [Period of Mortgage Right] The mortgagee shall exercise the mortgage right within the limitation period for the principal creditor's right; and where it is not exercised, the people's courts will not protect it.

The statute of limitations for the main claim is interrupted, and the mortgage is generally not interrupted. As long as the mortgagee is in limbo at the time of the main claim, the mortgagee can still exercise the mortgage right. That is to say, after the statute of limitations for the principal creditor's right has passed, the mortgagee loses the right to win the lawsuit under the protection of the people's court, and the mortgage itself is not extinguished, and if the mortgagor voluntarily performs the guarantee obligation, the mortgagee can still exercise the mortgage right.

1. Standards for charging lawyers' fees for litigation and divorce.

The fee standard for litigation divorce lawyers is determined by the law firm and the client through negotiation, and there is no uniform fee standard for this. The specific lawyer's fees should be considered based on comprehensive factors such as the social reputation and work level of the lawyer they entrust, and the client's ability to bear it.

2. Divorce litigation process.

Process of Divorce by Litigation:

1) Write a civil complaint, the first part of which states the name, gender, date of birth, ethnicity and place of residence of the plaintiff and the defendant, and the second part of which states the claim aPetition for divorce; b.child support issues; c.

property is divided according to law; The third part writes the facts and reasons, such as when you got married, when you had children, and what reasons for divorce. It is best to print the pleading, but it must be signed by hand at the end;

2) Initiating a lawsuit in the basic level court (district or county court) where the residence is located, and going through the formalities for filing the case in the case filing division;

3) When filing the case, submit 2 copies of the civil complaint, marriage certificate, ID cards of the husband and wife (at least bring their own), the child's household registration or original birth certificate, and if there is property that needs to be divided by the court, it is also necessary to bring property-related evidence, such as real estate certificate, motor vehicle driving license, etc. 2 sets of copies of the evidence need to be submitted (one copy of the court file is issued to the other party);

4) After the case filing division has reviewed, the fee is paid;

5) Submit the payment bills and materials to the court case filing division, and return home and other notices;

6) The court will schedule your case**, and serve a copy of the complaint, evidence and other materials to the defendant, and after serving the defendant, you will be notified of the **time, and you need to go to the court to collect the **summons;

7) If the other party also agrees to the divorce, the court may ask both of you to mediate (in civil cases in China, mediation is a necessary procedure, ** do not organize your mediation before, ** will also ask you if you are willing to mediate), if the mediation is successful, then issue a "civil mediation letter", mediation is divided into two kinds, may mediate the divorce, or may do your work, do not divorce, close the case;

8) If mediation fails, if mediation is not possible, a judgment will be made and a "Civil Judgment" will be issued;

Under normal circumstances, if the defendant does not agree to the divorce for the first time, the court will make a judgment not to grant the divorce, and may sue for divorce again 6 months after the judgment takes effect.