诉讼时效延长规则之反省

An Introspection over the Extension of Limitation of Actions

《民法通则》第137条确立了法官裁量延长时效的"兜底"规则,然而这一颇具中国特色的规则缺乏足够的正当性论证和实效性检验。延长规则试图发挥的兜底功能已在中止和中断规则内解决;延长规则是时效期间过短和法官职权援用时效等周边规则制约的结果,而这些规则或者即将被修改,或者已被废除;既有延长规则的司法适用或者是我们误解的结果,或者反映出相关重要时效规则的缺失;由于并无对应关系以及司法传统差异,英国法所谓裁量延长和不适用规则并不能为我国延长规则提供域外辩护。建议未来民法典放弃时效延长规则,而着重于诉讼时效法的体系调整和细节完善。

Art. 137 of General Principles of the Civil Law has established a special rule of the extension of limitation of actions under judicial discretion, but this rule with Chinese characteristics has neither enough justification nor actual effect. The rules of the suspension and the discontinuance have already performed the special function of the rule of the extension under judicial discretion. The rule of the extension complements both rules of the short period of limitation of actions and inquisitorial use of judicial system, however both rules have been abandoned or would be revised. Judicial use of the rule of the extension is an outcome of our misunderstanding or an embodiment of lacking some important rules of limitation of ac- tions. The rule of the extension in the Anglo - American law could not defend the Chinese rule of the extension, since both rules are different things and there are huge differences between two judicial traditions. The Civil Code in the future shall abandon the rule of the extension and focus on systematic reform and change of rules of limitation of actions.