On issues of increasing the limitation period in civil proceedings
Professional lawyers of the Verdict consulting company from the city of Kharkov, based on their own practice, argue that in modern realities of life there is no country in which each person does not violate or limit the rights and freedoms of others. As a result, the courts are filled daily with a huge number of statements of claim in order to exercise the right to protect the rights and legitimate interests of individuals.
Our state guarantees every person the right to a fair trial, appeal in court of decisions, actions or inaction of state authorities, local authorities, officials and officials and by any means not prohibited by law to protect their rights and freedoms from violations and unlawful encroachments. This norm is enshrined in Art. 55 of the Basic Law of Ukraine, by the Constitution, and is in accordance with Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 04/04/1950.
However, the legislator limited this possibility of protecting rights in a judicial proceeding in time to the term “limitation period”.
According to historical data, the statute of limitations (the statute of limitations that paid off the claims) was not the primary institution of classical Roman law. Claims for the V century they didn’t have a time limit – as long as there was a right, there was so much possibility of his judicial protection. The praetors independently impose time limits on the filing of certain civil claims. Already from 424, the emperor Theodosius introduced and extends as a legal category a 30-year-old statute of limitations to all claims that previously had no time line.
That is, even under ancient Roman law, an understanding arose that certain levers were necessary for the discipline of participants in civil relations, the regulation of the procedure for conducting legal proceedings, and therefore the introduction of certain restrictions. The institute of limitation became one of such levers.
The concept of “limitation” in the modern sense was enshrined in Art. 71 of the Civil Code of the Ukrainian SSR 1963 as a general term for the protection of the right of claim of a person, law
which is violated, and a little imperative. The provisions of the Civil Code of the Ukrainian SSR on the limitation period, in turn, were reflected in the current Civil Code of Ukraine, but with significant amendments.
So, in accordance with Art. 256 of the Civil Code of Ukraine, the statute of limitations as an institution of civil law of Ukraine is the period within which a person can apply to the court with a request to protect his civil law or interest.
However, this definition is not entirely correct in the context of legislation, since the expiration of the limitation period does not deprive the right to appeal to the court with a claim, but casts doubt on the possibility of satisfying such a claim. Therefore, the definition of the term “limitation period” according to the Civil Code of the Ukrainian SSR can be considered more successful, since it assumes that the expiration of the limitation period of subjective law does not stop, but does not deny the adoption and consideration of the claim by the court. The concept from the previous Civil Code is also not perfect, since not only the victim, but also other persons (for example, the prosecutor, parents, guardianship authorities, etc.) can file a lawsuit.
Unlike the previous one, the current Civil Code of Ukraine provides for the possibility of increasing (but not reducing) the limitation period by written agreement of the parties (Article 259 of the Civil Code of Ukraine) and is applied by the court only at the request of the parties to the dispute (Article 267 of the Civil Code of Ukraine).
So, the current Civil Code has introduced qualitatively new changes that have expanded the ability of creditors to protect violated rights. So, a person, when applying to the court with a claim after the expiration of the limitation period, cannot receive a court refusal to consider the case and can even count on a positive decision if the defendant does not submit an application for the application of the limitation period.
The Civil Code of Ukraine establishes both a general (Article 257) and a special limitation period (Article 258). The current legislation establishes two types of limitation periods: general and special. The general limitation period is established for a period of three years and applies to all types of claims, with the exception of those in respect of which the reduced limitation periods have been established.
Special statute of limitations may be established by law for certain types of claims and may be of two types: shortened or longer in comparison with the general limitation.
The provisions of Part 2 of Art. 257 CC provides a list of requirements to which the limitation period of one year applies. These include, but are not limited to:
1) for the recovery of a fine (fine, penalty);
2) on the refutation of inaccurate information posted in the media. In this case, the limitation period is calculated from the day the information was posted in the media or from the day the person found out or could learn about this information;
3) on transfer to the co-owner of the rights and obligations of the buyer in case of violation of the preemptive right to purchase a share in the right of common shared ownership (Article 362 of the Civil Code of Ukraine);