RULES REGULATING THE LIMITATION OF ACTION: FEATURES OF ITS CALCULATION AND APPLICATION

Abstract

This article is devoted to the study of the actual issue of the legal application of the statute of limitations in the practical field, based on the features of calculating the initial term of the given term and other features of its course. It is emphasized that in order to establish the initial moment of the ancient course, a subjective factor must be present – the objectivity of the person about the violation of his subjective rights. Such awareness is presumed, but it is mandatory to prove the time when the person became (could have become) aware of the violation of the right placed on the plaintiff. In the work, based on the final analysis of the work of the European Court of Human Rights, the interrelationship of four legally significant phenomena determining the application of the institute under study was established: violation of the law, awareness of this fact by the carrier, material legal protection requirement and the beginning of the statute of limitations. Taking into account both objective and subjective criteria, everything from the beginning of the statute of limitations must be clearly defined in order to achieve balance in law enforcement and prevent different assessments in similar cases. In this context, the rule of Part 7 of Art. 261 of the Civil Code of Ukraine, which introduces an exception to the general rule on the beginning of the expiration of the older term. The overly broad interpretation of this rule, which often takes place at will, both in doctrinal writings and in practice, has been criticized. The real content and their temporal characteristics are shown on the example of the creditors' assignment of the heirs' demands to the heirs. Finally, the article deeply explores the question, which has long caused applications, about whether the court, in the case of fixing the fact of the statute of limitations, needs to find out other facts that are important to the case and reflect this in the decision. The author emphasizes that yes, the statute of limitations can be declared by the authorized person, if the claims are recognized by the court as well-founded and proven. Moreover, when the court established the fact that the statute of limitations had passed, it automatically recognized that the plaintiff had a right to sue in the material sense, but this right has already expired by statute of limitations and is not subject to enforcement. In other words, the court confirms the appropriateness of the violated regulatory right of the person and the fact of its violation, but refuses to protect it.