Who has the inductive time, the limitation period, the exclusion period and other relevant contents

Difference Between Exclusion Period and Statute of Limitations:

1. The applicable objects are different. The statute of limitations applies only to the right to claim; The exclusion period applies primarily to the right of formation, but it can also apply to the right of claim.

2. The constituent elements are different. The statute of limitations requires two elements, namely, the passage of the statutory period and the continuation of the right to make it a de facto state; There is only one element for the exclusion period, i.e., the passage of the statutory period.

4. The starting point of the period is different. The limitation period shall be calculated from the date on which the right holder knows or should know that the right has been infringed, that is, the date on which the right holder can exercise its rights; The exclusion period begins at the time of the establishment of the right.

5. Whether the period is variable or not is different. The statute of limitations period is a variable period that can be suspended, interrupted, or extended; The exclusion period is an unchanged period and cannot be suspended, interrupted or extended.

6. Whether the court can take the initiative to apply it ex officio is different. The statute of limitations must be asserted by the person who has the benefit of the statute of limitations before it can be applied by the court; Whether or not the exclusion period has elapsed, the court shall take the initiative to investigate and apply it ex officio.

7. According to Article 188 of the Civil Code, the statute of limitations for filing a request to the people's court for protection of civil rights is three years. Where the law provides otherwise, follow those provisions. The limitation period shall be calculated from the date on which the right holder knows or should know that the right has been damaged and the obligor.

Where the law provides otherwise, follow those provisions. However, if more than 20 years have elapsed since the date on which the rights were infringed, the people's courts will not grant protection, and if there are special circumstances, the people's courts may decide to extend the rights holder on the basis of the right holder's application. (The Civil Code will come into force on January 1, 2021).

Legal analysis: The differences between the two are mainly manifested in: (1) different legal consequences.

The expiration of the statute of limitations does not extinguish the substantive rights of the parties; The expiration of the exclusion period extinguishes the substantive right of the right holder. (2) The purpose of the system is different. The purpose of the statute of limitations is to negate the original relationship and maintain the new relationship, and the purpose of the exclusion period is to preserve the original relationship.

3) The applicable conditions are different. After the statute of limitations is completed, the substantive rights of the obligee are not extinguished, and the debtor's voluntary performance is also protected by law, and the court cannot apply it on its own initiative if it does not rely on the obligor's claim; The application of the exclusion period does not require the parties to make a claim, and the court may also apply it ex officio. (4) The period is different.

The commencement of the statute of limitations period is calculated from the time when the right holder knew or should have known that the rights had been infringed by the lenient brother, and the provisions on suspension, interruption or extension may apply; The exclusion period is calculated from the time the right is established and is an unchanged period, and the provisions of suspension, interruption or extension cannot be applied. (5) The expression of legal provisions is different. The statute of limitations period is expressed in legislation as "statute of limitations", i.e., it stipulates that a claim is extinguished by how long it does not travel; The exclusion period is legislatively expressed as the duration of the right.

Legal basis: Civil Code of the People's Republic of China

Article 188:The statute of limitations for filing a request to a people's court for the protection of civil rights is three years. Where the law provides otherwise, follow those provisions. The limitation period is calculated from the date on which the right holder knows or should know that the right has been damaged and the obligor.

Where the law provides otherwise, follow those provisions. However, if more than 20 years have elapsed since the date on which the rights were infringed, the people's courts will not grant protection, and where there are special circumstances, the people's courts may decide to extend the rights holder on the basis of the right holder's application.

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, the expiration of the statute of limitations period must not be used as a defense; Where the obligor has already voluntarily performed it, it must not be returned.

The exclusion period, like the statute of limitations, is also a certain state of fact after a certain period of early Wooki, and certain legal consequences occur, but there is a big difference between the two systems:

1) The legal consequences are different. The legal effect of the expiration of the exclusion period is the extinguishment of a substantive right; The expiration of the statute of limitations only extinguishes the right to prevail, not the substantive right.

2) The applicable rules and regulations are different. At the expiration of the exclusion period, the court may take the initiative to apply the relevant provisions ex officio, and may also request the court to recover the relevant provisions without the need for the parties to make a claim, and the obligor has voluntarily performed; After the expiration of the statute of limitations, if the debtor voluntarily performs, it can no longer demand return.

3) The period is different. The exclusion period is an unchanging period, and it is fixed for as long as the law stipulates and cannot be changed; The statute of limitations can be suspended, interrupted or even extended for various reasons.

The difference between the exclusion period and the statute of limitations:

1. The statute of limitations applies to the right of claim, and the exclusion period applies to the right of formation;

2. The statute of limitations must be claimed by the parties, and the parties do not need to claim during the exclusion period

3. The expiration of the statute of limitations only leads to the extinction of the right to prevail, and the expiration of the exclusion period extinguishes the substantive right

4. The statute of limitations is a variable period, and the exclusion period is an immutable period.

Legal basis. Article 152 of the Civil Code of the People's Republic of China.

In any of the following circumstances, the right of revocation shall be extinguished:

1) The party has not exercised the right of revocation within one year from the date on which the party knew or should have known the reasons for revocation, or within 90 days from the date on which the party with a material misunderstanding knew or should have known the reasons for revocation;

2) The party concerned is coerced and does not exercise the right of revocation within one year from the date of termination of the coercive act;

3) When the person who defends the Zen is aware of the reasons for revocation, he or she expressly expresses or expresses his or her own behavior that he or she waives the right of revocation.

Where a party does not exercise the right of revocation within five years from the date of occurrence of the civil juristic act, the right of revocation is extinguished.

Article 188 of the Civil Code of the People's Republic of China.

The statute of limitations for filing a request to a people's court for the protection of civil rights is three years. Where the law provides otherwise, follow those provisions.

The limitation period is calculated from the date on which the right holder knows or should have known that the right has been damaged and that the obligor has been informed. Where the law provides otherwise, follow those provisions.

The exclusion period refers to the period during which the law stipulates that a certain right is scheduled to exist, and the creditor does not exercise the right during this period, and the legal consequence of the extinction of the right can occur upon the expiration of the pre-term period. For example, in the case of a voidable contract, if the party with the right of rescission does not exercise the right of rescission within one year from the date on which the party with the right of rescission knew or should have known the reasons for revocation, the right of rescission shall be extinguished.

1. The applicable objects are different. The statute of limitations applies to claims;

The exclusion period is generally applicable to the right of formation (such as the right of retrospective recognition, the right of rescission, the right of revocation, etc.).

(2) The subjects that can be invoked are differentThe statute of limitations must be asserted by the parties before the people's court can review it, and the people's court cannot take the initiative to invoke it

During the exclusion period, the people's court shall take the initiative to review whether or not the parties assert it.

(3) The legal effect is differentThe expiration of the limitation period only extinguishes the right to prevail, not the substantive right;

Upon the expiration of the exclusion period, the substantive rights are extinguished.

(4) The nature of the period is differentThe statute of limitations period is a variable period that may be interrupted, suspended or extended for subjective and objective reasons

The exclusion period is an invariant period and the provisions of interruption, suspension and extension do not apply.

1. The spirit of legislation is different. The purpose of the exclusion period system is to maintain the legal relationship of the existing DAO. The purpose of the statute of limitations system for repetition answers.

However, it is to maintain new social relations that are opposed to the original legal relationship.

2. The applicable objects are different. The subject matter of the exclusion period is generally the right of formation. However, not all civil laws on the formation of rights have an exclusion period. The object of the statute of limitations is the right of claim, but not all claims should be subject to the statute of limitations.

3. The nature of the period is different. The exclusion period stipulates that the fixed period of time for the existence of the right is an immutable period, and cannot be suspended, interrupted or extended unless otherwise provided by law, and the period is relatively short, with the purpose of ascertaining the relationship between the parties at an early date. The statute of limitations is a variable period for which suspension, interruption and extension may apply, and for longer periods.

The period of exclusion is generally one year. The exclusion period refers to the period during which the law provides for the existence of a certain civil entity's rights. If the right holder does not exercise the corresponding civil rights within this period, the expiration of the statutory period will lead to the extinction of the civil rights.

For example, Article 1124 of the Civil Code stipulates that the legatee shall make an expression of acceptance or renunciation of the bequest within 60 days after becoming aware of the bequest; If it is not indicated at the expiration date, it shall be deemed to have waived the bequest. In civil law, the existence or exercise of rights is affected by the passage of time, mainly including the extinction of the statute of limitations (called the statute of limitations in China) and the exclusion period. Article 199 of the Civil Code stipulates that, unless otherwise provided by law, the duration of rights such as the right of revocation and the right of rescission as stipulated by law or agreed upon by the parties shall be calculated from the date on which the right holder knows or should have known that the right arises, and the provisions on the suspension, interruption and extension of the statute of limitations shall not apply.

At the expiration of the period of existence, the right of revocation, the right of rescission and other rights shall be extinguished. Article 541 provides that the right of avoidance shall be exercised within one year from the date on which the creditor knows or ought to know the cause of revocation. If the right of avoidance is not exercised within five years from the date of the debtor's act, the right of avoidance shall be extinguished.

The exclusion period cannot be interrupted by anything, which means that the suspension of the rejection period is usually not allowed. The termination of a contract may be prescribed by law for a period of exclusion, or the parties may directly agree on the period of exclusion, and a reasonable period may be determined by the other party's demand when the law does not provide for it or the parties have not agreed on a time limit.

Article 564 of the Civil Code of the People's Republic of China: Where the law provides or the parties agree on a time limit for exercising the right of rescission, and the party fails to exercise it at the end of the period, the right shall be extinguished. If the law does not stipulate or the parties have not agreed on a time limit for exercising the right of rescission, and the right of rescission is not exercised within one year from the date on which the person with the right of rescission knows or should know the reason for rescission, or does not exercise it within a reasonable period of time after being urged by the other party, the right shall be extinguished.