The establishment of the statute of limitations is determined by a number of circumstances, in particular considerations of ensuring the stability of civil turnover, overcoming uncertainty in legal relations. In addition, when establishing the statute of limitations, the legislator assumed that long-term non-use of the right indicates that a person loses interest in a certain subject with corresponding consequences for him and for third parties. Finally, long-term non-use of the right may in the future create difficulties in the judicial process, because over time, especially over the years, the establishment of circumstances by the court and the examination of evidence become more and more difficult.
General provisions on statute of limitations
The timeliness of the protection of a person's private right is subject, first of all, to the regularities of the development of interests in the private law sphere, and the statute of limitations only serves as its temporal background. The statute of limitations is the chain that connects the relevant private interest, subjective right with the possibility of their implementation, protection or loss due to the passage of a certain time. This civil law institution is the criterion, a kind of litmus test, by which one can judge the presence or absence of a person's interest in protecting their subjective rights, in relation to their loss. At the same time, one should not underestimate the value of the statute of limitations, because in the absence of this period, the effectiveness of the influence of law on social relations regulated by it will be significantly reduced, and this, in turn, will lead to their loss of systematicity and orderliness, and not only temporal (Pechenyi O. P. Grounds for the application of statute of limitations in corporate legal relations // Ukrainian commercial law, 2006, No. 7, pp. 86-93).
The relationship between the statute of limitations and liability is not a simple linear relationship, but is dialectical and multifaceted. The limitation period "binds" the mechanism of responsibility in many parameters, first of all, in relation to the grounds for exemption from responsibility. In the statute of limitations, the main idea of the law is to limit the claim to a certain time, the legislator knows that the claim is aimed at an offense and that it will become unpunished when the term expires.
For a long time, in the theory of civil law and legal practice, the statute of limitations was considered as an institution of material law, which had the corresponding consequences reflected in the legislation. But currently, there is a trend towards "proceduralization" of the statute of limitations, seeing it as a procedural term, especially in administrative proceedings. This should be taken into account in further analytical judgments and the formation of judicial practice.
The institute of limitation of action in decisions and practice of the ECtHR
It is important to see the statute of limitations in the field of practice of the ECtHR, which connects the statute of limitations with legitimate avoidance of responsibility.
Thus, in the decisions dated September 20, 2011 (the case of OJSC Yukos Oil Company v. Russia), dated October 22, 1996 (the case of Stubbings and others v. the United Kingdom), it is indicated that the statute of limitations is the legal right of the offender to avoid prosecution or bringing to court after a certain period after the commission of the offense. The statute of limitations, which is a common phenomenon in the national legislation of States parties to the Convention, performs several tasks, including providing legal certainty and finality, preventing the violation of the rights of defendants that may occur in the event that a court makes a decision based on evidence that has become incomplete due to leakage time
The application of the statute of limitations is intended to provide legal certainty and finality, protect potential defendants from time-barred claims, and prevent the injustice that may result if courts are forced to decide cases about events that took place in the distant past, relying on evidence that may already be , lost their validity and completeness over time (paragraph 51 of the decision dated 22.10.1996 on applications No. 22083/93, No. 22095/93 in the case of "Stubbings and others v. the United Kingdom"; paragraph 570 of the decision of 20.09.2011 in the case of "JSC" Yukos Oil Company v. Russia").
Conclusions regarding the application of the statute of limitations are also set out in the decisions of the ECtHR in the cases of Bellet v. France (Bellet v. France) in application No. 23805/94, Seal v. The United Kingdom in application No. 50330/07, Dacia SRL v. Moldova by application No. 3052/04; Lelas v. Croatia by application No. 55555/08; Phinikaridou v. Cyprus under application No. 23890/02.
In the practice of the courts of Ukraine, the application of the above decisions and practice of the ECtHR is used in various categories of cases, including debt collection, conclusion and performance of contracts, bankruptcy. Regarding the protection of property rights, examples of the application of the specified decisions should be cited as the resolutions of the Supreme Administrative Court of the Uzhhorod District of the Transcarpathian Region, Patskanivska Village Council of the Uzhhorod District of the Transcarpathian Region on the invalidation and cancellation of the decision and cancellation of the certificate of ownership, dated 03.12.2019 in case No. 907 /762/16 on the claim of Energopolis LLC to the Enterprise "Center for Social and Labor Rehabilitation of the Disabled of the City of Kyiv", LLC "Kvitka Center" on the recognition of the unlawful alienation of property and recognition of the right of ownership dated 10.16.2019 in case No. 911/2818/17 by the claim of the first deputy prosecutor of the Kyiv region in the interests of the state represented by the Main Directorate of the State Geocadastre in the Kyiv region to the Sofiyiv-Borshchagiv village council of the Kyiv-Svyatoshinsky district of the Kyiv region, LLC "Barcelona Yu EY" regarding the invalidation of the decision and claim of the land plot , dated January 22, 2019 in case No. 5024/1403/2011 on the claim of the Prosecutor of the Skadovsk district of the Kherson region in the interests of the state represented by the State Property Fund of Ukraine against PJSC medical and health facilities of trade unions of Ukraine "Ukrprofozdrovnytsia" and the subsidiary "Sanatorium for children with parents "Skadovsk" on the claim for recognition property rights and claim of property from illegal possession , etc. In cases of bankruptcy, claims for protection of ownership rights, recognition of ownership rights, claim of property are often possible, to which the statute of limitations applies , including at the request of the liquidator.
Features of the beginning of the statute of limitations
The specificity of the beginning of the statute of limitations is manifested in almost all lawsuits, and especially prominently in lawsuits for the protection of property rights. Thus, in relation to a vindication claim, the statute of limitations is specific in determining the beginning of the period, since the statute of limitations for a vindication claim must be determined by the moment of discovery of the thing and establishment of its actual owner, that is, the person in whose possession (under whose actual control) the thing is at the current moment. If you try to fill this thesis with practical content, you will find its brevity and the need to look for other, more detailed, points of support for the entire structure. For example, in judicial practice, it is reflected in such a way that the state's right to ownership of the disputed land plot was violated when the land plot passed from the state's possession to the possession of another person, and not at the time when this person concluded the next deed of alienation of the land plot and entered into legal force court decision, which confirmed the fact of illegality of disposal of the disputed land plot and violation of the state's property right, therefore the beginning of the statute of limitations for the claim filed to protect this violated right is connected with the moment when the state, in the person of the authorized body, learned or could learn about violation of her right or about the person who violated it (clause 65 of the resolution of the Supreme Court of Ukraine dated August 21, 2019 in case No. 911/3681/17). At the same time, the very fact of the presence of a representative of the prosecutor's office at the plenary meeting of the council during the adoption of contested decisions by it is not proof of the awareness of the authorized bodies of the state about the violation of its rights (clause 112 of the resolution of the Supreme Court of the Supreme Court dated 07.11.2018 in case No. 488/5027/14 -ts). As you can see, the specifics of the statute of limitations in the vindication requirements of the theoretical and applied models are somewhat different.
The Supreme Court also defined the specifics of the vindication claim based on the entity that applies it. The statute of limitations is a term for filing a lawsuit both directly by the person whose right has been violated, and by those subjects who are authorized by law to file a lawsuit in the interests of another person — the holder of the violated right (interest). And in the case of filing a lawsuit by a person whose right has been violated, and in the case of filing a lawsuit in the interests of this person by another person authorized to do so, the statute of limitations begins to be calculated when the violation of the right or the person who violated it became known or the person whose right has been violated, or the prosecutor authorized to apply to the court in the interests of the state for the protection of such a right, could find out, if the prosecutor found out or could find out about the violation of the right or about the person who violated it earlier than the person whose right was violated. Claims for property claims are subject to the norms of the Civil Code of Ukraine regarding the general statute of limitations, since state authorities or local self-government bodies must bear the risk of the expiry of the statute of limitations for challenging legal acts issued by them, and the exercise of the right to challenge them should not call into question the stability of civil turnover . In this case, the courts reached a well-founded conclusion that the plaintiffs missed the statute of limitations without good reason, but the case was sent for a new trial. This, in turn, became the basis for a separate opinion , the authors of which did not agree with the conclusion of the majority of judges of the Supreme Court of the Supreme Court about sending the case to the court of first instance for a new consideration, since there were every reason to make a new decision to reject the claim in connection with the expiration of the claim statute of limitations, the application of which is declared by the defendant.
This conclusion of the Supreme Court replaced another legal position, formulated in the resolution of the Supreme Court dated 05.10.2016 in case No. 916/2129/15, that the statute of limitations does not apply to legal relations related to the claim of property under Art. 388 of the Civil Code. There is no doubt that the last thesis is a "reincarnation" of para. 2 Art. 83 of the Central Committee of the Ukrainian SSR of 1963 on the exemption of vindication claims of state organizations from the application of the statute of limitations, which proves the high stability of this norm even in the conditions of legislative transformations. We will remind you that the unlimited vindication of state property was canceled even before the adoption of the current Central Committee, in 1991 on the basis of part 2 of Art. 50 of the Law of Ukraine "On Property".
Subsequently, the Supreme Court detailed the conclusion made in 2018. In particular, rejecting the prosecutor's vindication claim in the interests of the state, the court indicated that in order to avoid a discriminatory advantage of these subjects compared to other subjects of law, they must bear the risk of applying the consequences of the expiration of the statute of limitations for challenging the legal acts issued by them. A change in legal relations that became final due to the expiration of the statute of limitations or should have become final if the statute of limitations had been applied without discrimination in favor of the state is incompatible with the principle of legal certainty. Here one should recognize a certain incompleteness, misunderstanding in the application of the statute of limitations. As already noted, the Supreme Court Supreme Court recognized as unfounded the conclusion that the statute of limitations does not apply to legal relations related to the claim of property (paragraphs 38 — 41 of the Supreme Supreme Court resolution of October 17, 2018 in case No. 362/44/17). This approach can also be traced in subsequent court decisions, where it is indicated that the general statute of limitations applies to vindication claims of the state in the person of state authorities (clause 122 of the resolution of the Supreme Court of Justice of January 18, 2023 in case No. 488/2807/17). However, in this case, the opinion of the Supreme Court did not acquire any significance. The prosecutor stated three claims: to declare illegal and cancel the points of the decision; on the invalidation of the state act issued to the primary acquirer; on reclaiming the land plot from illegal possession of the final acquisition by demolishing the constructed real estate object. The Supreme Court indicated that the statute of limitations should be applied differentially. The final acquirer declared in the court of first instance that the statute of limitations had expired for all claims, but for the claims to declare illegal and cancel the points of the decision and to declare invalid the state act issued to the primary acquirer, the final acquirer is not a party to the dispute with the state, the courts of previous instances had no grounds for with the application of this acquisition to resolve the issue of the expiration of the statute of limitations regarding the two claims. The court must consider the argument about the application of the statute of limitations to the demand for the claim of the disputed land plot if it considers that such a demand should be satisfied (paragraph 131 of the resolution of the Supreme Court of Ukraine dated 18.01.2023 in case No. 488/2807/17). This approach is quite controversial, since the satisfaction of the last requirement is connected with the previous requirements. In any case, such an "isolated" application of the statute of limitations seems illogical.
The beginning of the statute of limitations and the subject of its application
We should also dwell on the issue of the dynamics of the statute of limitations in the area of determining the beginning of its course, which is caused by the inadequacy of the wording of Part 1 of Art. 261 of the Civil Code regarding the general rule for determining the beginning of the statute of limitations in the case of entities. There was a lot of talk about it in expert circles, but the issue not only did not find a solution at the legislative level, but also gave rise to a whole layer of other problems. Moreover, the "sustainability" of this norm is quite high, even with further expected legislative changes, the shortcomings will be corrected only for the future and will not be able to affect modern realities. It is important to determine the beginning of the statute of limitations for lawsuits by persons (bodies) who file lawsuits in the interests of others, in particular, for lawsuits of "derivative" subjects of protection of rights and interests protected by law. Depending on the relevant spheres of legal regulation, the following can be distinguished: in inheritance legal relations — the manager of the inheritance (Article 1285 of the Civil Code, Part 3 of Article 61 of the Law of Ukraine "On Notary Publicity"), executor of the will (Article 1290 of the Civil Code), custodian, guardian of property ( Part 2 of Article 61 of the Law of Ukraine "On Notaries"); in the field of protection of public interests — prosecutor; in the bankruptcy procedure – the liquidator; upon establishment of guardianship and guardianship – guardian, custodian, body of guardianship and guardianship. In many cases, these subjects are involved in relationships that have already arisen, so they become aware of the violation of rights and interests after the fact of the violation, but this does not affect the beginning of the statute of limitations. It should be taken into account that in itself the legally defined existence of a person's right to appeal to the court in the interests, to protect the rights and interests of other persons, does not and cannot change the rules regarding the beginning of the statute of limitations, defined in Art. 261 of the Civil Code.
With regard to lawsuits for the protection of the state's and others' property rights to land plots, forest and water fund objects, the conclusion made by the ECtHR in the decision of 03/18/2008 in the case "Dacia SRL v. Moldova" (Dacia SRL v. Moldova, application no. 3052/04). The court analyzed the provisions of the national civil law and indicated that the norms according to which the statute of limitations did not apply to claims by state organizations for the return of state property from the illegal possession of other organizations or citizens, in itself contradicts Art. 6 of the Convention, since no arguments were presented in the case to justify why the state organizations in these cases should be exempted from the obligation to observe the established limitation periods, which would in similar situations prevent consideration of claims filed by private individuals or companies. This, according to the ECtHR, can potentially lead to the destruction of many established legal relations and provides a discriminatory advantage to the state without any convincing basis (§ 76). The ECtHR stated that the change of legal relations, which became final due to the expiration of the statute of limitations or should have become final if the statute of limitations had been applied without discrimination in favor of the state, is incompatible with the principle of legal certainty (§ 77). The stated position was detailed by the Supreme Court, which, rejecting the vindication claim of the prosecutor in the interests of the state, indicated that in order to avoid a discriminatory advantage of these subjects compared to other subjects of law, they must bear the risk of applying the consequences of the expiration of the statute of limitations for challenging the legal acts issued by them. A change in legal relations that became final due to the expiration of the statute of limitations or should have become final if the statute of limitations had been applied without discrimination in favor of the state is incompatible with the principle of legal certainty. In the opinion of the VP of the Supreme Court, the conclusion that the statute of limitations does not apply to legal relations related to the claim of property is unfounded (paragraphs 38 — 41 of the resolution of the VP of the Supreme Court of October 17, 2018 in case No. 362/44/17). This approach can also be traced in subsequent court decisions, the Supreme Court Supreme Court indicated that the general statute of limitations applies to vindication claims of the state in the person of state authorities (clause 122 of the Supreme Supreme Court resolution of January 18, 2023 in case No. 488/2807/17). However, in this case, the opinion of the Supreme Court has no absolute significance. The prosecutor stated three claims: to declare illegal and cancel the points of the decision; on the invalidation of the state act issued to the primary acquirer; on reclaiming the land plot from illegal possession of the final acquisition by demolishing the constructed real estate object. The Supreme Court believes that the statute of limitations should be applied differently. The final acquirer declared in the court of first instance that the statute of limitations had expired for all claims, but for the claims to declare illegal and cancel the points of the decision and to declare invalid the state act issued to the primary acquirer, the final acquirer is not a party to the dispute with the state, the courts of previous instances had no grounds for with the application of this acquisition to resolve the issue of the expiration of the statute of limitations regarding the two claims. The court must consider the argument about the application of the statute of limitations to the demand for the claim of the disputed land plot if it considers that such a demand should be satisfied (paragraph 131 of the resolution of the Supreme Court of Ukraine dated 18.01.2023 in case No. 488/2807/17). This approach is quite controversial, since the satisfaction of the last requirement is connected with the previous requirements. In any case, such an "isolated" application of the statute of limitations seems illogical.
Statute of limitations and term of appeal to the court
In doctrine and practice, a stable idea of the statute of limitations as a period of appeal to the court has developed, referring to the institutions of substantive, not procedural, law. In continental European legal systems, the statute of limitations refers to substantive law, and in Anglo-Saxon law to procedural law, while some researchers recognize statute of limitations as a hybrid institution. The genetic attribution of the statute of limitations to substantive or procedural law has, rather, a doctrinal than an applied meaning, it does not meaningfully affect the application of statute of limitations, since the regulation of statute of limitations in the norms of substantive or, accordingly, procedural law is quite similar, although not identical. However, regardless of the question of whether the statute of limitations applies to substantive or procedural law, there is a need to resolve the question of how the statute of limitations is related to other periods of appeal to the court, which are established by other legislative acts, in particular, procedural codes. Yes, Art. 122 of the Code of Administrative Procedure of Ukraine establishes a general six-month period for applying to the administrative court for the protection of the rights, freedoms and interests of a person, which is calculated from the day when the person learned or should have learned about the violation of his rights, freedoms or interests, unless otherwise established. Despite the fact that in recent years, a significant body of judicial practice of the Supreme Court has been developed regarding the demarcation of civil, economic and administrative jurisdiction, but in many cases the disputes that arise were and remain jurisdictionally related. We think that attempts to ensure a 100% demarcation of jurisdictions based on objective criteria are not very promising, which is confirmed by fairly simple examples. For example, when a person appeals in administrative proceedings against an act of a public authority that concerns property rights or other property rights, and then submits a claim related to such an act in a commercial court, or vice versa. Another example is a person's appeal to the court with a complaint (administrative lawsuit) against the actions, decisions or inaction of a state or private executive (Article 447 of the Civil Procedure Code of Ukraine, Article 339 of the Economic Procedure Code of Ukraine, Article 287 of the Civil Procedure Code), and then from this person, a lawsuit is filed for invalidation of public auctions, acts of alienation of property and declaration of demands for its return. Accordingly, the deadlines for appealing to the court are set for claims, and for demands for the invalidation of deeds, return of property, there are statutes of limitation, which are different, not synchronized in any way, and these disputes themselves are quite close and derivative. The situation with regard to requirements for the protection of corporate rights and property rights looks similar. Thus, a natural person can apply to the commercial court with a claim to invalidate the decision of the general meeting of the company, for which the statute of limitations is set at one year (clause 8, part 1, article 258 of the Civil Code), for joint-stock companies – six months from the date of the decision (Part 1 of Article 61 of the Law of Ukraine "On Joint Stock Companies"), and then to a court of general jurisdiction with a demand for the return of property transferred on the basis of the specified decision, the statute of limitations for such a demand is general (Article 256 of the Civil Code). Accordingly, a special rule regarding the beginning of the statute of limitations has been established for the first claim, and the general procedure for determining the beginning of the statute of limitations applies to the second (Part 1, Article 261 of the Civil Code). Therefore, the question of their interaction remains unresolved, i.e. whether the appeal to the court with the first claim interrupts the statute of limitations for the second one, as it is related to the first one. Article 266 of the Civil Code stipulates that with the expiration of the statute of limitations for the main claim, it is considered that the statute of limitations for the additional claim has expired, which applies regardless of whether the main and additional claims are in one claim or in several, according to the rules of civil or other judicial proceedings considered (Civil Code of Ukraine: Scientific and practical commentary Vol. 2: Objects. Deeds. Representation. Terms and deadlines. Limitation of action. Personal non-property rights of an individual. edited by I. V. Spasio-Fateeva. Kh.: " ECUS", 2021. 784 p.). The given norm determines the synchronization of the main and additional requirements only in the part of the expiration of the statute of limitations, without touching the grounds for interrupting the period of limitation for the main and additional requirements, therefore the issue remains unresolved.
The situation is complicated by the fact that, as evidenced by legislative practice, both the statute of limitations and the term of appeal to the court can be established by legislative acts of various branches, including the aforementioned CAS, by tax legislation, the norms of which are understood differently by judicial practice. Yes, specified in clause 102.1 of Art. 102 of the Tax Code of Ukraine) the term is precisely the statute of limitations, which has a material and legal nature, and therefore cannot be simultaneously the procedural term of appeal to the court. There is a fundamental difference between the legal nature of the substantive statute of limitations in tax legal relations and the procedural term of appeal to an administrative court, and therefore it is erroneous to equate their purpose when using . In this case, several judges expressed a separate opinion in which they were critical of the justification of such a position, since the Supreme Court, recognizing the terms of appeal to the court as purely procedural (as opposed to the statute of limitations defined by Article 102 of the Criminal Code), recognized it as possible (from the analysis of parts 1, 2, 4 KAS) transition to the legal regulation introduced by the Tax Code as a special law, and, having compared the prescriptions of clauses 56.18 and 56.19 of article 56 of this Code, did not find a conflict between them, which should be eliminated using the presumption established by clause 56.21 of the same article legality of the taxpayer's actions.
In fact, this led to a situation in which the time limits specified by Article 122 of the Civil Code and Clause 56.19 of Article 56 of the Code of Criminal Procedure were recognized by the court as procedural, and those determined by the combination of Clause 56.18 of Article 56 and Clause 102.1 of Article 102 of the Code of Criminal Procedure as "those that have a material – legal in nature, and therefore cannot be simultaneously a procedural period of appeal to the court", without providing the appropriate argumentation and criteria according to which such a division was made. Such enforcement is considered erroneous as a result of the court ignoring the rules of rule-making (legislative technique), and the transition to the regulation of legal relations by the Tax Code of Ukraine is premature, carried out in the absence of the hypothesis necessary for this in the rule of law that was to be applied, and on the basis of an imaginary alternative. It is also advisable to reconcile the conflict of jurisdictions not only within the boundaries of state judicial institutions of different subject competences, but also the relations of these institutions and arbitration courts in terms of the application of the statute of limitations, considering the issue of expanding the grounds for interrupting the statute of limitations when applying to an arbitration court, the impact of the arbitration court's decision on the decision this or a related case by another court. The relationship between the statute of limitations and the procedural (or other) time limit for applying to the court is exacerbated in a situation where the Grand Chamber of the Supreme Court, when resolving a jurisdictional dispute, annuls the court decisions adopted in the case and recognizes the need to resolve the issue in the order of another jurisdiction, but during the time, while the courts of the first and appellate courts instances mistakenly considered the case, the relevant time limit (statute of limitation or the time limit for applying to the court) has expired, which puts the applicant in a disadvantageous position, since he is forced to file a motion to renew the missed time limit, although it is advisable to provide at the legislative level that the time for resolving the jurisdictional dispute before the time limit expires the statute of limitations (the term of appeal to the court) should not be counted.
The existing definition of the statute of limitations (Article 256 of the Civil Code) includes an appeal to the court with a demand for protection, based on the very meaning of the concept — an appeal with a lawsuit. Accordingly, the legal definition of the statute of limitations should become more "elastic" and take into account the situations of applying to the court with a claim in a different form than a lawsuit (application, submission, etc.). An example is the rules establishing the rights of the liquidator and subsidiary liability in the bankruptcy procedure. According to Art.61 of the Code of Ukraine on Bankruptcy Procedures, the liquidator, from the day of his appointment, makes claims to third parties regarding the return of receivables to the bankrupt, makes claims to persons who, in accordance with the law, bear subsidiary responsibility for the debtor's obligations in connection with proving his to bankruptcy. The question arises about the possibility of these persons denying the claims of the liquidator by referring to the application of the statute of limitations, a similar question arises when referring to the statute of limitations when applying any extrajudicial procedures, when the claim for protection is resolved without going to court. This requires a qualitatively different substantive content of the legal definition of the statute of limitations, so that the statute of limitations becomes a "protective" statute of limitations.
Based on this, the problem of (a) the relationship between the concepts of "statutory limitation" and "time limit for applying to court" and (b) the positioning of the statute of limitations as a material or procedural term (c) the statute of limitations and non-suit and extra-judicial forms of protection, reference to the claim statute of limitations outside the court.
In addition, attention should be paid to such a trend of legislative experience as the approximation of the statute of limitations based on the legal consequences of its overflow to the statute of limitations. An example is the provisions of Part 5 of Art. 112 of the Civil Code, according to which the claims of creditors, which are not recognized by the liquidation commission of a legal entity, if the creditor does not apply to the court with a lawsuit within a month after receiving a notice of full or partial refusal to recognize his claims, are considered repaid. At the same time, the legislator did not define the legal nature of this term, did not indicate its classification as a statute of limitations, but clearly outlined the legal consequences of its expiration — termination of the creditor's subjective right by recognizing his claims as repaid. Accordingly, the question arises about the application of this period of the norms of the Central Committee on legal standing, its suspension, interruption, etc. The terms set in the second and third sentences of Part 4 of Art. 559 of the Civil Code (as amended by the Law of Ukraine dated 03.07.2018 No. 2478-VII "On Amendments to Certain Legislative Acts of Ukraine Regarding the Resumption of Lending", entered into force on 04.02.2019), which link the termination of the guarantee with the fact that the creditor within three years will not file a claim against the guarantor. Again, the three-year period, which is established by a duration identical to the general statute of limitations (Article 257 of the Civil Code), is not called the statute of limitations, but the consequences of its expiration are established – the termination of the suretyship if the guarantor is not sued. It is possible that this is a limited period in its nature, which in terms of duration, but not in substance, is equal to the statute of limitations. At the same time, the legislator in the future in the latest legislative acts resorts to more complex constructions of the ratio of terms. An example is the newest Law of Ukraine dated 13.12.2022 No. 2849-IX "On Media", according to Art. 43 of which a person who believes that an entity in the field of audiovisual, print or online media has spread information about him that does not correspond to reality (stated incompletely or inaccurately) and degrades his honor, dignity or business reputation, has the right to demand a refutation inaccurate information or exercising the right of reply by filing a statement of refutation or exercising the right of reply within 20 days from the date of dissemination of the relevant information. The law also establishes a deadline for providing an answer to the application. And although a person's submission of a statement on refutation or exercise of the right to reply is not a mandatory condition for applying to the court with a corresponding claim, the question of how these terms relate to the special statute of limitations (clause 2, part 1 of Article 258) has not been resolved Central Committee), in particular when the subject refused to distribute a rebuttal or answer. In addition, the terminology of Art. 258 of the Civil Code regarding the subject is not brought into line with the provisions of the Law of Ukraine "On Media", which defines subjects in the field of audiovisual, print or online media, and not mass media.
There are reasons to believe that in the future the legislator will resort to such methods of setting out temporal norms, so this issue should be resolved at the doctrinal level, with a corresponding reflection in the legislation.
In foreign legal systems, there is a tendency to synchronize the general statute of limitations of three years (or other duration) with an objective prescriptive period much longer than the statute of limitations, usually ten years. At the same time, the objective deadline does not have the properties of stopping and interrupting, as well as renewal. This tendency can also be found in national law, for example, the statute of limitations for claims about defects in the sold goods (paragraph 4, part 2, article 258 of the Civil Code) and the establishment of a period for compensation for damage caused by the defect of the goods (part 1, article 1211 of the Civil Code). Obviously, there are reasons to extend the application of the deadline to other requirements (for example, regarding invalidity of transactions, etc.).
The statute of limitations is always applied to material legal relations, accordingly, the question of statute of limitations arises when the disputed material relations are transformed, including the change of their subjects in the order of legal succession. In Ch. 18 of the Civil Code refers to the dynamics of the statute of limitations only when the party to the obligation is replaced (Article 262 of the Civil Code), which definitely does not cover all cases of changes in the subject composition of disputed material and legal relations, especially when rights and obligations are transferred in the order of inheritance , during the transition of corporate control, reorganization of a legal entity, etc. We believe that a differentiated approach should be introduced and criteria defined, upon the occurrence of which the transformation of the subject composition of disputed material relations will result in a change in the duration and procedure for calculating the statute of limitations, and upon the occurrence of others, the statute of limitations will remain unchanged.
Limitation of action and negative action
Regarding the application of the statute of limitations to a negative claim, the theory of the impossibility of applying the statute of limitations to such claims for the protection of property rights is quite stable in the theory of civil law. This is due to the fact that such a lawsuit is aimed at protecting the powers of the possessing owner, is based on an offense that is ongoing. During any period of time, regardless of the duration of the offense, a negative action cannot be brought. This is the difference between a negatory claim and a vindication claim, according to which the owner does not own the thing, and therefore the vindication claim is subject to the statute of limitations. Therefore, the rule about the absence of limitations on the limitation period for a negative claim has become almost axiomatic. The common ground of civil doctrine and judicial practice is the thesis that the statute of limitations cannot extend to demands for the removal of obstacles to the owner's exercise of the right to use and dispose of his property (Article 391 of the Civil Code of Ukraine), since in this case it is a so-called ongoing offense. Therefore, the owner can file such a lawsuit at any time, regardless of when the violation of his rights began (subclause 5.1 of paragraph 5 of the Resolution of the Plenum of the VGSU dated 29.05.2013 No. 10 "On some issues of the practice of applying the statute of limitations in the resolution of economic disputes" ).
The wide application of such an approach in judicial practice, despite all the obviousness, has led to the fact that currently an extremely ambiguous judicial practice is being formed, including at the level of the Grand Chamber (VP of the Supreme Court) and courts of cassation regarding the fact that, in fact, each claim can be qualified as negative, solely for the purpose of not applying the statute of limitations to it (Pechenyi O.P. Negative claims and demands: the modern dimension of judicial practice. Bulletin of the National Association of Lawyers of Ukraine. 2022. No. 11 (86). P. 40-47) .
In this regard, the issue of determining what a negative claim is when invalidating a mortgage contract and extending the statute of limitations to these claims is important.
Thus, according to the resolution of the OP KGS of the Supreme Court dated 06.08.2021 in case No. 910/20607/17, the presence of encumbrance of immovable property with a mortgage provides for the prohibition or restriction of the disposal and/or use of immovable property, therefore a lawsuit for invalidating the mortgage agreement and lifting the prohibition of alienation with the exception of the relevant of entries from the State Register of Mortgages is negative, as it is aimed at eliminating obstacles to the owner in exercising his powers of disposal and/or use of the property belonging to him, and the statute of limitations does not apply to such claims.