On the Starting Point of the Ordinary Limitation Period of the Right to Claim on Performance of the Contract
Corresponding to the procedural and substantive law understandings of the limitation system,the methods of determining the objective point of time from which the ordinary limitation period begins to run differ between the right being infringed and the claim being exercisable,but the essence of both methods of determining the limitation period is the exercisability of the right,in the context of their respective doctrinal vectors.Because the determining method that the objective starting point is when the right is infringed cannot be applied to the right of claim in the nature of original right,Article 189,paragraph 1 Article 694 of the Civil Code and clause 1 Article 4 of the Judicial Interpretation No.17[2020]stipulate the determining method that the starting point is when the right to claim becomes enforceable and the objective model is adopted.The second clause of Article 4 of the Judicial Interpretation No.17[2020]is contrary to the Article 189 of the Civil Code.It is a failure of judicial interpretation.The starting point of ordinary limitation period of the right to claim which is of the nature of verhaltener anspruch is when the right holder claims the right.Because the right to claim on substitutional interest is of the nature of unjust enrichment,the starting rule for unjust enrichment claims shall be applied for it.The right to claim specific performance is the extension of the right to claim on performance of the contract,and there is no issue of an independent limitation period.The right to claim on damages as a secondary claim is not subject to the limitation period for the right to claim on performance of the contract,and has its own independent starting point for the ordinary limitation period.The provisions of China's civil legislation on the starting point of the ordinary limitation period present a dual structure,and the degree of systematization is insufficient.
ordinary limitation periodstarting pointthe right of claim on performance
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