Civilistic principles of restoration of the limitation period: their application in special cases
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GUYVAN, Petr. Civilistic principles of restoration of the limitation period: their application in special cases. In: Particularităţile adaptării legislaţiei Republicii Moldova şi Ucrainei la legislaţia Uniunii Europene, 1-2 noiembrie 2019, Chişinău. Chişinău: Tipografia Cetatea de Sus, 2019, pp. 99-102.
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Particularităţile adaptării legislaţiei Republicii Moldova şi Ucrainei la legislaţia Uniunii Europene 2019
Conferința "Particularităţile adaptării legislaţiei Republicii Moldova şi Ucrainei la legislaţia Uniunii Europene"
Chişinău, Moldova, 1-2 noiembrie 2019

Civilistic principles of restoration of the limitation period: their application in special cases


Pag. 99-102

Guyvan Petr
 
Poltava Institute of Business
 
 
Disponibil în IBN: 21 martie 2022


Rezumat

In addition to the general rules for applying the statute of limitations, the scope of enforcement is also interesting for the study of the consideration of the temporal characteristics of the exercise of the right to judicial protection in certain specific situations. In particular, the practice has its own specificity when the issue is resolved in order proceedings. It is understood that the higher courts of Ukraine in this area have chosen the wrong regulatory position, which is not based on the current national legislation. According to Art. 147 of Economic Procedural Code (COD) and Art. 160 of Civil Procedural Code of Ukraine (CPCU) court order is a special form of court decision issued by the court following the consideration of certain claims. The dispute in order proceedings is considered in the absence of the parties. Therefore, the person to whom such a claim is made may not be aware of the process at all, all the more, it simply lacks the physical ability to claim that the limitation period has expired according to the relevant requirements. On the other hand, the applicant is also deprived of the opportunity to prove the facts of postponement of the commencement of the limitation period on the grounds of his untimely awareness of the violation, to refer to the factors that caused the suspension and interruption of the limitation period. In certain circumstances specified in the procedural codes, the court may refuse the person to issue an order. But even the issuance of an order in which a claim has been satisfied does not guarantee its finality far enough. Only by obtaining a copy of such a document does the subject, who was the debtor, become able to examine the substance of the dispute and, of course, express his objections to the content of the order, challenge it to court. If the complaint establishes the existence of a dispute between the parties on the right, and, for example, establishes the fact that the recovery of debt for the period exceeding the limitation period, the order shall be canceled by the court that issued it indicating the need to consider the case in the lawsuit. In this case, the existence of a dispute can be established when from the attached documents or from an appeal against the issued order one can see a limitation period. Such a claim can only be resolved in a claim [1, §§ 9, 19]. Thus, as noted in the scientific literature, in the case of a court order on an obligation in respect of which the statute of limitations has expired, the debtor has the right to revoke the court order, and the presence of objections over the expiry of the statute of limitations indicates a dispute about the law and precludes the adoption of a statement of claim. issuing a court order [2, p. 126]. As the law indicates, in the future, both in the case of refusal to issue a court order and in its cancellation, the creditor has the right to go to court with the appropriate claim, and the case will be considered in a lawsuit. But by the time such a lawsuit is filed, the statute of limitations, which began from the moment when the rightholder became aware of the violation, may end, which is quite often the case in Ukrainian realities. How is it fair to settle this issue by giving the holder of the infringed right the opportunity to defend it when the statute of limitations has expired due to its independent circumstances? Unfortunately, the national legislator retains silence in this regard, which is very unfortunate because he has made his choice to a higher judicial authority. This choice was not easy and, as practice shows, incorrect. Thus, in the decision of the High Specialized Court on Civil and Criminal Cases of 28 September 2015 in Case No. 6- 18668-cв15, it was concluded that, given that the judicial protection of the creditor’s right to recover funds could be realized as in a lawsuit, and by issuing a court order as a special form of court decision, filing an application by the creditor to issue an order in the manner provided in Sec. II оf CPCU, interrupts the limitation period [3]. According to this concept, if a person went to court to issue an order, the limitation period is interrupted for 3 years. In this case, the plaintiff has the right to apply to the court within 3 years after the cancellation of the court order in order to recover the debt for the period before the interruption of limitation. It should be noted that the highest judicial authority in Ukraine out of the three possible regulations of the said relations (interruption of limitation in connection with the filing of an application for an order, suspension of the statute of limitations for the duration of the case in criminal proceedings and restoration of the statute of limitations) was the least successful. After all, the interruption of the limitation period in connection with the filing of the application at the issuance of a court order, in theory, leads to the beginning of a new statute of limitations, which will last for three years, and then end. There is no legal basis or common sense for any legal grounds for re-interruption of prescription. What about an authorized person, when, for example, the order becomes known to the debtor after a considerable time after it is issued, he will appeal it to the court and, eventually, the order will be revoked after five years? The question is rhetorical, and its solution is beyond the decision of the ruling of the Supreme Court. As is known, the statute of limitations after the proper filing of the claim is terminated by the requirements of the same content to the same defendant. After all, its new course is simply not logically necessary, since the procedural law directly prevents the submission of the same claim in the future. The interruption of limitation shall take place only in respect of claims against other debtors for joint and several liability or for that part of the debt which has not been covered by the original claims [4, p. 305-306]. It is also worth noting that the legislator in no case called the period for the realization of a judicial claim «limitation period». This is the period of time during which a person, in the event of a claim, has the right to obtain judicial protection of his or her subjective right. The mechanisms for calculating the start, run, stop, interrupt and restore the limitation period are also regulated in Chapter 19 of the CCU. The Code of Civil Procedure of Ukraine defines different types of proceedings: order, claim, separate. However, according to the law of the legislator, statute of limitations can be applied only in the lawsuit proceedings, the submission of certain claims to the court in the order of criminal and separate proceedings with limitation period of limitation. Only in a special case does the law establish a special rule on the application of the effects of a statute of limitations in criminal proceedings: a judge refuses to issue a court order if, from the moment of the right of claim, a period exceeding the statutory limitation for such a claim has elapsed or has passed the law for bringing a claim in court on such a request (clause 5) of Part 1 of Art. 165 CPCU. If all the rules of the statute of limitations had been extended to regulate judicial public relations within order proceedings, such a special rule would not be necessary. Therefore, all other statute of limitations of the institute of limitation on this process are not subject to the lack of indication of the law. Therefore, filing a writ of injunction cannot interrupt the statute of limitations, since it is not specifically stated in the Code as a basis for this, and the relevant judicial interpretation that is applied is illegal and incorrect in substance. Despite the apparent inability of the commented approach to solve the relevant problem in the law enforcement field, the newly created Supreme Court, instead of conducting a scientific inquiry into the issue, continues to apply the same inactive and unfair practice of litigation in resolving specific disputes [5; 6]. In the second of these cases, the Supreme Court generally applied the rule on interruption of the limitation period twice !!!, since the plaintiff – a utility company providing heat supply services, filed a court order in 2010 and 2013. This approach does not stick to the pile, neither from a legal point of view nor from a logical point of view. The option with the use of legal instruments inherent in the suspension of the statute of limitations also seems irrelevant, although from the outside the alternative seems more attractive. The problems here lie at the heart of the suspension rule. After all, such a result comes from prescription only if there are objective external factors, clearly defined by law, which the ruler, apparently not understanding the severity of the problem, does not explicitly want to do. In addition, stopping the antiquity course by its nature is necessarily a temporary phenomenon, whereas in this case, the rule in question may be well-founded. After all, the circumstance that led to the suspension of limitation may not cease: the order is not always appealed and annulled, and the infinity of the temporary phenomenon is legal nonsense. Therefore, the most logical, expedient and just to achieve the civilizational purpose of the greatest promotion of the proper protection of material rights violated would be the only possible mechanism of restoration of the limitation period, because it was missed for valid reasons. From the conducted research we can draw separate conclusions. In analyzing the circumstances that led to a statute of limitations, the law enforcement agency should find that they objectively obstructed the filing of the lawsuit, the authorized person was unable to prevent them and eliminate them, although they took all necessary actions for this purpose. In other words, the court carries out the restoration of prescription in the presence of valid reasons, the number of which is not legally limited. Moreover, the current legislation does not regulate the procedure for deciding what should be considered a valid reason for missing the limitation period. Therefore, considering the specific conditions of the existence of each individual entity, and considering that some circumstances may be valid for some persons and others will not be of the same importance, the law enforcement agency should reasonably and appropriately exercise its discretion. The determinants of their boundaries should be the European principles of fair trial, outlined by the European Court of Human Rights.