중국 민법전(2020년)의 소멸시효- 주요 내용과 최근 동향을 중심으로 -

This article examines the statute of limitations under the Chinese Civil Code, which was enacted in 2020 as the first Civil Code promulgated since the founding of the People’s Republic of China. The statute of limitations regime in the Chinese Civil Code largely inherits the rules established by the General Principles of Civil Law, subsequent individual civil statutes, and the judicial interpretations of the Supreme People’s Court, while also introducing new provisions that reflect recent trends in comparative law and legal practice. Whereas the statute of limitations under the former General Principles of Civil Law was formulated by adopting the Soviet Civil Code(1964) revises those provisions and supplements their deficiencies through amendments and the enactment of new articles. First, under the influence of Soviet law, the prevailing view once held that the effect of the completion of the statute of limitations was the extinction of the right to prevail in litigation. This view, however, was later overcome, and the legislative approach shifted toward the position that a right whose limitation period has expired does not itself become extinguished; rather, the completion of the limitation period gives rise to a defense for the debtor against the creditor’s claim. Under this approach, a claim subject to the statute of limitations does not disappear but continues to exist, and the creditor retains the substantive right. In Korean law, there has long been a theoretical confrontation between the absolute extinction theory, which regards the effect of the completion of the statute of limitations as the extinction of the substantive right itself, and the relative extinction theory, which holds that the completion of the limitation period merely allows the limitation defense to be invoked. The latter position was even reflected in a proposed amendment to the Civil Code. However, under the relative extinction theory, the nature of the so-called “right to invoke” the statute of limitations remains conceptually unclear. In contrast, the Chinese Civil Code clearly characterizes this effect as the emergence of a defense against the claim. By redefining the effect of the completion of the statute of limitations as the occurrence of a defense, the Chinese Civil Code limits its scope of application to claims of an obligatory nature and, on this basis, expressly provides for exceptions, such as real rights claims, which are claims in form but are not subject to the statute of limitations. If Korean law were to adopt the relative effect theory in the sense of recognizing a defense right, it would be necessary to redefine the object of the statute of limitations as claims and to explicitly stipulate exceptions to its application. In this way, the long-standing issue concerning the relationship between real rights claims—whether based on ownership or other real rights—and the statute of limitations could be resolved. By contrast, under the current law, which defines the object of the statute of limitations as claims or property rights other than ownership, the relationship between claims subject to the statute of limitations and the underlying claims themselves remains conceptually ambiguous. Next, whereas Korean law defines the object of the statute of limitations as substantive rights—namely claims and real rights other than ownership—the Chinese Civil Code adopts a different approach by limiting the object of the statute of limitations to obligatory claims, while providing explicit exceptions for real rights claims and similar claims to which the statute of limitations does not apply. This raises the question of whether Korean law should continue to maintain its current approach of treating substantive rights as the object of the statute of limitations. Furthermore, the Chinese Civil Code extends the limitation period from two years under the former General Principles of Civil Law(1986) to three years, introduces a subjective starting point, and establishes a maximum limitation period of twenty years. Considering that the Korean Civil Code amendment bill reduces the current ten-year limitation period to five years while introducing a maximum limitation period, the approach taken by the Chinese Civil Code offers valuable legislative insights. In addition, tort claims are incorporated into this general framework, and claims arising from sexual violation of minors are subject to a limitation period commencing when the minor reaches the age of eighteen, which corresponds to the revised provisions proposed in Korean law. The generalization and integration of the statute of limitations for damages arising from torts into the general rules governing claims for damages in the General Part also merits further examination. Moreover, the expansion of grounds for interruption of the limitation period and the introduction of new grounds for suspension—such as factual impediments to the exercise of rights—are issues that have either already been discussed or warrant further discussion in Korean limitation law. With regard to the effects of the completion of the statute of limitations, the Chinese Civil Code’s recognition of the emergence of a defense, alongside the continued existence of the underlying claim, invites renewed discussion concerning the concept of natural obligations and the identification of the holder of the limitation defense. Finally, the establishment of general provisions on exclusion periods, which were previously regulated only through individual provisions on formative rights, provides useful guidance for ongoing debates surrounding the reform of exclusion periods in Korean law.