《民法典》第一百九十九条(除斥期间)评注

Commentary on Article 199 of the Civil Code(Peremption)

《民法典》第199条对除斥期间的期间起算和法律效果采统一立法模式,明确除斥期间原则上采主观起算标准,自权利人知道或者应当知道权利产生之日起算。其他法律规定的客观起算标准形成补充。原则上应允许当事人对权利的行使是否适用除斥期间、以及除斥期间的期限长短作约定,但不得违背公序良俗原则。虽然《民法典》第199条规定除斥期间不适用中止中断规则,但如果存在权利行使的障碍,导致权利人不能行使权利,应类推关于诉讼时效的中止、中断和延长的规则。除斥期间届满,发生权利消灭的后果,且无须当事人主张,法院可主动查明和适用,但须由相对人举证证明除斥期间已经起算。基于同一违约事实同时成立形成权与请求权,其相应的除斥期间与诉讼时效应分别判断,但立法和司法上应使同属于违约救济手段的不同权利,在时间限制方面尽量保持统一。

Article 199 of the Civil Code adopts a unified legislative model for the dies a quo and legal effect of peremption, which specifies that the subjective beginning standard for peremption shall be applied, in principle,beginning from the date when the creditor knows or should have known that he has such a right. Meanwhile, the objective beginning standard provided by other laws forms a supplement. In theory, the parties shall be allowed to make an agreement on whether the peremption is applicable to the exercise of rights and the duration of the peremption, unless it violates the principle of public order. Besides, article 199 of the Civil Code stipulates that the provisions on the suspension and interruption shall not be applicable for peremption, however when there are obstacles to the exercise of rights which causes the obligee cannot exercise the rights, the provisions on the suspension, interruption or extension of limitations should be analogized. Moreover, if the peremption expires, there will be the consequence of the extinction of rights, which does not need to be claimed by the parties, while the court could take the initiative to find out and apply, but the opposite party should provide evidence to prove that the peremption has begun. On the one hand, for the right of formation and the right of claim which are established on the basis of the same breach of contract, the corresponding peremption and limitation should be judged separately. On the other hand, as these different rights are all the means of remedy for breach of contract, legislation and judicature should make these rights unified in terms of time limit as far as possible.