Can the promissory note be retrieved after three years? Shenzhen Zhiming Law Firm sorts out four situations of interruption of statute of limitations and the calculation from the three-year period

After three years of borrowing, the money may not necessarily turn yellow. The key is to determine from which day these three years began and whether there were any interruptions in between. Article 188 of the Civil Code sets the statute of limitations for ordinary litigation at three years, starting from the date when the rights holder knows or should know that their rights have been infringed and the obligor. In private lending, if a repayment date is agreed upon, it shall be calculated from the day after the repayment date expires; If there is no agreed repayment date, it shall be calculated from the date of the lender's first reminder and the expiration of a reasonable grace period. After the expiration of three years, the rights holder can still file a lawsuit, and the court will also accept it. However, once the other party raises a defense of statute of limitations in court, the plaintiff must provide evidence of interruption or suspension, otherwise the lawsuit request may be rejected. So whether you can get it back or not depends on whether you have left any actions and evidence to reset the time limit.

When did you start running during the three-year period

Many people think that the day they write a promissory note starts counting, which is the most common misconception. A promissory note with a clear repayment date shall be valid for three years, starting from the second day after the expiration of the repayment period. For example, if the promissory note states "repay before June 30, 2023", the validity period will start from July 1, 2023 and expire on June 30, 2026. If the repayment date is not specified, according to Article 188 (2) of the Civil Code, it shall be calculated from the date when the grace period for the creditor to demand the debtor to fulfill its obligations expires; If the lender has never urged and the statute of limitations for litigation has not even begun to run, this is also the reason why many old promissory notes can still win in practice.

There are also several special starting calibers. For installment payments, each installment is counted separately, not all payments are counted from the last installment. If interest is agreed upon but no principal is agreed upon, the starting point of the time limit for interest and principal may be different. If the debtor has partially repaid or paid interest, in practice we generally recommend claiming it as recognition of the overall debt, because Article 195 of the Civil Code lists "the obligor's agreement to perform the obligation" as a ground for interruption, and partial performance is usually considered to constitute agreement to perform. However, there are differences in the standards of referees in different regions for such determinations, and it cannot be generalized.

The first scenario of interruption: You ask for money

Article 195 of the Civil Code stipulates four grounds for interruption, the first of which is "the right holder requests performance from the obligor". Translated into human language, it means you have urged for payment. But debt collection needs to be proven. Verbal, telephone, and face-to-face reminders often have different opinions in court. We usually recommend using methods that can leave a trace: WeChat, SMS, email, EMS courier collection letter, or lawyer's letter.

There is a detail here that many people stumble over. WeChat payment collection should be able to prove that the WeChat account belongs to the debtor himself. Just having chat records is not enough. It is best to cooperate with transfer records, the other party's real name information, or voice calls. The EMS collection letter should indicate "Collection Loan Letter" in the "Item Name" column of the express delivery note, and keep the receipt and signing record. Sending out will be interrupted without the need for the other party to actually sign for it, but the address must be written correctly. Writing the ID card address or the address specified in the contract is the most secure. The basic principle of "extending life" is to restart the three-year period after interruption.

The second scenario of interruption: the other party acknowledges the payment

The debtor's agreement to fulfill their obligations also results in the interruption of the statute of limitations. The forms of expression include: written or verbal acknowledgement of debt, issuance of repayment plan, signature on statement of account, partial repayment, payment of interest, and expression of intention to use property as collateral. In practice, a new repayment commitment letter has extremely high value because it not only proves the existence of the debt, but also brings the time limit back to the starting point.

It should be noted that after the expiration of the statute of limitations for litigation, if the debtor agrees to perform again, according to Article 192 (2) of the Civil Code, they may no longer argue that the statute of limitations has expired, which is called "waiver of statute of limitations benefits". But the prerequisite is that this agreement can be proven. Many parties may think 'what are they afraid of even if they promise to repay it' when they first encounter it, but the other party turns around in court and denies it, leaving them with nothing in their hands. So the matter of recognition only counts when it is written down on paper.

The third scenario of interruption: filing a lawsuit or applying for arbitration

Filing a lawsuit or applying for arbitration with an arbitration institution are statutory grounds for interruption. The key here is the timing: based on the date of submitting the lawsuit materials, not the date of filing the case, let alone the date of the judgment taking effect. In practice, there is a situation of queuing for filing cases at the end of the year. As long as you submit the materials to the court before the deadline (now mostly online filing, leaving a mark upon successful submission), the interruption is established.

Similar to the effect of filing a lawsuit are: applying for a payment order, applying for bankruptcy claims declaration, and applying for compulsory enforcement. All of these can have disruptive effects. In addition, submitting a request for protection of rights to the People's Mediation Committee or relevant authorities also constitutes interruption. When dealing with loan disputes, Shenzhen Zhiming Law Firm usually takes the "last effective collection date" as a core timeline to sort out, as it directly determines whether the case is to be settled on a physical basis or a time limit basis.

The fourth scenario of interruption: actions beyond the other party's agreement to perform

Strictly speaking, Article 195 of the Civil Code only lists four types. In addition to the three mentioned earlier, the fourth type is "other circumstances that have the same legal effect as filing a lawsuit or applying for arbitration". This is a fallback clause, which specifically includes applying for a payment order, applying for bankruptcy, declaring bankruptcy claims, applying for the declaration of the disappearance or death of the obligor for the claimed rights, applying for pre litigation property preservation, applying for compulsory enforcement, etc. Their common feature is that they assert their rights through public authorities, with the same effect as filing a lawsuit.

What needs to be distinguished is' interrupt 'and' abort '. Suspension refers to the occurrence of force majeure or other obstacles within the last six months of the statute of limitations period, which prevent the exercise of rights. The statute of limitations will only expire after six months have passed since the obstacles have been eliminated (Article 194 of the Civil Code). Suspend is to pause the clock, interrupt is to reset the clock to zero and restart, the two have completely different effects, don't mix them up.

It took three years to remember, is there still a way to save

There is a solution, but we need to change our mindset. Firstly, reconfirm the debt with the other party and obtain a new repayment commitment, at which point the statute of limitations for litigation will be recalculated. Secondly, if the other party does not actively raise a statute of limitations defense in the lawsuit, according to Article 193 of the Civil Code, the court shall not actively apply the provisions of the statute of limitations, which means that the court will not act as a gatekeeper for the debtor, and if you don't mention it, I won't ask. Thirdly, even if the statute of limitations defense is established, the debt itself is not extinguished, but only becomes a natural debt, and the other party cannot demand repayment voluntarily.

The review of private lending by courts in Shenzhen is relatively meticulous, with complete loan receipts, transfer vouchers, and collection records being the basic criteria. For larger amounts, we generally recommend conducting a simultaneous evidence fixation, such as having the debtor reconcile and confirm, or delivering a collection letter through notarization. As for whether a specific case can be saved or not, it depends on the evidence chain and timeline. The conclusion of any individual case must be based on actual materials. This is only a case like caliber and does not constitute a commitment to the outcome. If you want to systematically understand the preparation of evidence and the key points of the trial, you can refer to itLawyer Zhang Hongliang's seminar on dispute resolution for investment and financial disputes.The ideas and logic within are interconnected.

Three time points that should be buried when writing a promissory note

Instead of remedying afterwards, it's better to write clearly beforehand. Firstly, specify the repayment date to determine the starting point of the time limit; Secondly, specify the delivery address terms to facilitate the sending of collection letters in the future; Thirdly, specify the calculation method for overdue interest to avoid claiming interest without any basis. A three sentence matter can save years of burden of proof.

In addition, the distinction between lending relationships and labor and service relationships is often confused, especially for financial transactions between individuals with a "helping to do work" nature. If the nature is wrongly defined, the applicable time limit rules and evidentiary direction will change. This type of discrimination can be seenLawyer Li Zuolin's class on "A Brief Analysis of the Clever Distinction Between Labor and Employment Relationships" begins.andDistinguishing Labor Service Relationships from Labor Relationships – Shenzhen Lawyer Legal LectureTwo sharing sessions. If it involves consumer debt, prepaid refunds, and different rights protection paths, you can refer to themThree Steps for Consumer Rights Protection – Zhiming Legal Lecture SeriesFor more similar practical content, please refer toHomepage of this column (Zhiming Lecture Hall).

At the end of the day, the statute of limitations for litigation is not "expired and invalidated", but a threshold that requires you to cross with evidence. The number of three years itself is not scary, what's scary is that you haven't left any trace during these three years. For friends who have a promissory note in hand, please check when the last debt collection was. If it's been almost three years, don't delay.

(This article was written by Shenzhen Zhiming Law Firm. Shenzhen Zhiming Law Firm has long handled private lending, contract disputes, and corporate accounts receivable cases. If you need to evaluate the timeliness of specific loan receipts and evidence materials, you can call the consultation hotline at 0755-25986969.)

Disclaimer: The content of this article is based on the current effective Civil Code of the People's Republic of China and relevant judicial interpretations, and is for general legal knowledge reference only. It does not constitute a legal opinion or result commitment for any specific case. The situation of each case varies greatly, and whether it has exceeded the statute of limitations and whether it can be interrupted should be comprehensively judged based on the content of the promissory note, transfer vouchers, collection records, and other materials. It is recommended to entrust a practicing lawyer to analyze the situation in detail before making a decision.