民间借贷纠纷中的诉讼时效问题研究

发布时间：2018-06-24 11:44

本文选题：民间借贷 + 诉讼时效　；参考：《吉林大学》2016年硕士论文

【摘要】：民间借贷一般发生在自然人、法人、其他组织之间及其相互之间,在形式上相对宽松,且没有行业规范或具体的法律法规来限定它们,所以让很多投机者有可趁之机。近年来互联网对整个社会生活的冲击和影响非常大,P2P的网络借贷平台从2013年开始如雨后春笋般兴起,但是层出不穷的平台圈钱后就倒闭的事件陆续曝光,造成了很大的负面影响。作为舶来品的我国诉讼时效制度其本身在实践适用过程中就存在大量争议,甚至很多理论界人士都著书立说建议延长我国诉讼时效期间等。故而,对民间借贷纠纷中诉讼时效问题的研究是对复杂且有争议的问题的研究,其意义深远。本文通过对近几年各法院受理解决民间借贷纠纷中涉及到诉讼时效的案例进行分析,发现民间借贷纠纷中适用诉讼时效制度存在的诸如起算存在争议、中断与中止难以认定、相关证明责任分配不明确以及不适用诉讼时效的情形。在民间借贷纠纷中未定期债权的诉讼时效的起算存在“债权人请求时”和“债权人成立时”两种方案之争,在我国学界“债权人请求时”占据多数派的地位且目前立法实践中也开始认可这种说法。同样地,将最长诉讼时效的起算点的“权利被侵害之日”理解成“债权请求权成立之日”也是符合立法精神的。针对利息的诉讼时效起算,主流观点认为虽然利息是本金的孳息,但是在计算诉讼时效时具有独立性,这种独立性是相对的,因为他们还认为分期履行的利息具有一定的连续性,所以其起算应该以最后一笔利息的履行期限经过后开始。基于连带责任保证中主债务人与保证人承担责任的原因及大小不同,所以连带责任保证中连带保证债务诉讼时效的中断的效力及于主债务,反之却不能。但是基于保护债权人的合法权益上来说,对于共同连带保证中一个保证人发生诉讼时效中断的效力应该及于其他保证人。同样,从法律倾向保护债权人利益的角度上说,在实践中认定起诉后又撤诉的诉讼时效有条件中断以及债务人下落不明的诉讼时效中止,这些也都符合我国国情。民间借贷纠纷中有关诉讼时效证明责任的分配是证明责任规则在具体特定环境下的适用,具体但不具有特殊性。此外,确认合同无效是确认之诉,并不适用诉讼时效。同样,对于恶意躲避债权人的债务人更加不能适用诉讼时效制度,主观上有恶意的人不应该受到法律的恩惠。因为诉讼时效是为了督促权利行使而设,而在恶意躲债的情形中,诚实信用原则应该优先于时效制度适用,所以在权利人因为义务人恶意躲避债务而无法行使相应权利时不应该产生督促权力行使的问题。
[Abstract]:Private lending generally occurs between and among natural persons, legal persons and other organizations. It is relatively loose in form, and there are no industry norms or specific laws and regulations to limit them, so many speculators have an opportunity to take advantage of it. In recent years, the impact and impact of the Internet on the life of the whole society has been very great. Since 2013, the P2P network lending platform has been springing up like a bamboo shoots, but the events of closing down after the endless circulation of money on the platform have been exposed one after another. It has had a big negative impact. The statute of limitations system of our country, as an imported product, has a great deal of controversy in the process of its application in practice, and even many theorists have written books and suggested extending the period of limitation of action in our country. Therefore, the study on the limitation of action in private loan disputes is a complex and controversial study, which has far-reaching significance. Based on the analysis of the cases concerning the limitation of action in the settlement of civil loan disputes in the courts in recent years, this paper finds that there are disputes in the application of the limitation of action system in the civil loan disputes, such as the disputes of starting calculation, interruption and suspension, which are difficult to identify. The distribution of relevant burden of proof is unclear and the limitation of action is not applicable. There is a dispute between "creditor's request" and "creditor's establishment". In our country, "creditor request" occupies the majority position, and it is also accepted in the current legislative practice. Similarly, it is also in line with the legislative spirit to interpret the "right infringed" as "the date on which the claim is established" at the starting point of the longest limitation period. As for the limitation of action against interest, the mainstream view is that although interest is the fruits of the principal amount, it is independent in calculating the statute of limitations, and this independence is relative. Because they also believe that interest on instalments has some continuity, it should start after the expiration of the last interest. Because the main debtor and guarantor are different in the reason and magnitude of the liability in the joint and several liability guarantee, the interruption of the limitation of the joint and several guarantee liability in the joint and several liability guarantee is equal to that of the main debt, whereas the contrary cannot be done. However, in order to protect the legitimate rights and interests of the creditor, the validity of the interruption of the limitation of action of one surety in the joint guarantee should be equal to that of the other guarantors. Similarly, from the point of view of legal tendency to protect the interests of creditors, the conditional interruption of the limitation of action after the prosecution and the suspension of the limitation of action whose whereabouts of the debtor are unknown are all in line with the national conditions of our country. The allocation of the burden of proof in civil loan disputes is the application of the rules of burden of proof under specific circumstances, but not specific. In addition, the confirmation of invalidity of the contract is the action of confirmation, not applicable to the statute of limitations. Similarly, the debtor who evades the creditor maliciously cannot apply the statute of limitations system, and the subjective malevolent person should not receive the favor of the law. Because the statute of limitations is set up to urge the exercise of rights, and in the case of malicious evasion of debt, the principle of good faith should take precedence over the application of the prescription system. Therefore, when the obligee is unable to exercise the right because the obligor evades the debt maliciously, the problem of urging the exercise of the right should not arise.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925

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