論以第一重判斷基準起算時效

The Beginning of Extinctive Prescription by First Standard for Judgement

按民法第128條前段所採之以客觀判斷基準為原則而起算時效之立法模式，並未考量債權人是否知悉其享有權利，就使債權人可能遭受時效已經完成之不利益，以致於在具體個案，或將發生不合理之結論，因此屢遭學者批評，亦為部分實務見解所反對，故遂有改革此項過時立法模式之聲浪。在各國立法例與國際法文件，均採以雙重判斷基準為原則而起算時效之立法趨勢下，我國學術版草案亦採此項立法模式，換言之，係採以權利人之主觀認識為要件始得起算時效之第一重判斷基準，輔以一定最長期間經過後即完成時效之第二重判斷基準。至於第一重判斷基準究應如何規範為妥，本文於參酌各國立法例與國際法文件後，建議應將之訂定為：「請求權，除法律另有規定者外，自下述情事之年度終結時起，五年間不行使而消滅：1、請求權得行使，且2、請求權人知悉或能合理得知足使請求權基礎構成要件該當之事實以及債務人。」

The beginning moment of the extinctive prescription is indeed the crucial key to the design of the extinctive prescription system. According to the first paragraph of Article 128 of the Civil Law, the legislative model of the beginning moment of the extinctive prescription is based on the principle of an objective standard, which does not consider whether the creditor is aware of his/her rights, so that the creditor may suffer from the disadvantage of the completion of the prescription, which may lead to unreasonable conclusions in specific cases. As a result, it has been repeatedly criticized by scholars and also opposed by some practical cases, which has led to the call for reforming this outdated legislative model. Pursuant to the so-called double standard for judgment legislative model, the first standard for judgement of the beginning moment of the extinctive prescription is based on the subjective knowledge of the creditor, and the second one is based on the expiration of a certain maximum length of period. The academic version also adopts this legislative model. However, how to properly design the first standard for judgement should be reconsidered, although the first paragraph of Article 125 (1) of the Academic Draft stipulates that“a claim is extinguished by prescription if it is not exercised within five years from the time when the creditor knew or due to gross negligence failed to know that the claim may be exercised”, yet after considering the legislation of various countries and international law documents, this article suggests that it should be set as follow:“Unless otherwise provided by the act, a claim is extinguished by prescription if it is not exercised within five years from the end of the year in which: 1. the claim may be exercised and 2. the facts giving rise to the requirements of the claim and the debtor became known or were reasonably able to know to the claimant.”