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3ЮРИДИЧЕСКИЕ НАУКИ
UDC 347.4 Civil law and process.
Guyvan Petro Dmytrovych
Professor of Poltava Institute of Business, Candidate of Law Sciences, Honored Lawyer of Ukraine.
Poltava
THE PERIOD OF VALIDITY OF A PERSON'S RIGHT TO PROTECTION OF HIS CIVIL RIGHTS. THEORETICAL ASPECTS.
Summary. This article is devoted to the research of the topical issue of the characteristics of such a substantive legal institution as the statute of limitations in relations governed by private law. A comparative analysis of legal mechanisms that mediate the order and time of occurrence of a person's right to sue, and the time of its occurrence. After all, the issue of timely exercise of subjective law is very important in society. It is established that after the expiration of the statute of limitations, the substantive law cannot be enforced, but it, without ceasing in content, acquires the so-called "natural" nature. But in such circumstances, the question arises: how long will there be a protection obligation that constitutes the content of such a relationship? From the methodological point of view, the work substantiates the thesis that with the expiration of the statute of limitations the regulatory right is terminated and thus the subject of protection itself is terminated. In fact, it is not. It is emphasized that the term is a necessary and integral element of the content of substantive civil law, the certainty in this regard will also provide certainty in the application of the necessary legal protection tools. It is emphasized that the legal analysis of the commented temporal coordinates should be carried out not within the limits of the existence of the protected (regulatory) right, but within the limits of the protective one, that is, of what arose as a result of the offense. After all, the modern development of civil doctrine allows us to conclude that subjective substantive law is realized within the regulatory legal relationship, and in case of violation of the latter there is a new separate protective obligation, within which the protection is carried out, in particular, through claims. At the same time, it is obvious that coercive property does not exhaust the protective property of the law. In most cases of non-judicial remedies, the law does not restrict the creditor's use of such remedies over time. That is, the right to exercise the protection authority, which is part of the relevant protection obligation, exists for the duration of the law itself, except when the law explicitly establishes a special period of its validity. The violated substantive law after the expiration of the statute of limitations does not remain completely unprotected, although the degree of its protection is somewhat reduced.
Key words: statute of limitations, right to protection, civil term.
Formulation of the problem. The development of legal science has revealed the important role that time plays in modern civil relations, forming their certainty and stability, ensuring the specificity of the rights and responsibilities of participants in civil circulation, ensuring their discipline. The urgency of temporal issues for legal science stems, first of all, from the fact that all objects of study and regulation (legal relations) develop over time, are dynamic. Therefore, their duration refers to those parameters that determine and shape the legal nature of a legal phenomenon. The regulation of deadlines is a traditional legal mechanism that has its own unique way of influencing the course of relations in society, which have a legal form.
Given the generally accepted concept of the division of civil law into regulatory and protective, the question of the duration of the relevant subjective rights and their corresponding responsibilities is relevant. Since the term is a necessary and integral element of the content of substantive civil law, the certainty in this regard will also provide certainty in the application of the necessary legal tools. Currently, the issue of timely exercise of subjective law is very relevant. In particular, the temporal relationship between the right of action and regulatory law is important. Unfortunately, the effectiveness of the application of certain legal norms
governing the course of certain terms is not the main criterion for establishing the scope of the legal institution. Therefore, we must conduct a scientific study of this issue, because the seriousness of the question of the possibility of the existence in the time of regulatory and protective substantive law requires serious attention.
Analysis of recent research and publications. In the scientific literature, issues of temporal influence on the possibility of realization of subjective law within the civil legal relationship have been studied by such scholars as V.P. Gribanov, O.S. Joffe, B.B. Cherepakhin, V.V. Luts, V.I. Vilnyansky, D. Chechot, P.M. Rabinovich, S.O. Slipchenko, etc. At the same time, some aspects of the general issue remain unresolved. Therefore, it is necessary to analyze the question of the duration of the very subjective right to which the creditor claims judicial protection, and the relationship of this temporal factor with the time of existence of the protection right aimed at protection. If we agree with the once popular thesis that the regulatory right is terminated with the expiration of the statute of limitations, then we could talk about the termination of the right to judicial protection in connection with the termination of the subject of protection. But, in fact, it is not.
Isolation of previously unsolved parts of the general problem. It has long been believed in society that the inaction of the authorized person is socially unacceptable and has certain undesirable consequences [1, p. 298-299]. However, this social need was not fully realized with the help of legal tools. Today, science convincingly proves the need for different legal deadlines for the implementation of subjective substantive law, because, as a rule, the legislator considers it necessary to limit the existence of a particular obligation and the relevant substantive rights and obligations that constitute its content. At present, in our civil science and law enforcement practice, discussions continue on the assignment of various specific deadlines that determine the duration of certain powers or responsibilities of a person to certain types. Therefore, the question of determining the legal essence of a civil term is becoming increasingly important. Therefore, the purpose of this work is to develop adequate temporal approaches to the regulation of civil protection relations.
Presenting main material. The statute of limitations has gradually acquired the legal significance that it still has today - the period during which a person can exercise his substantive right to judicial protection of violated civil rights or interests by properly suing him or another authorized person. This change in the assessment of the legal nature of this period could not help but be reflected in the scientific perception of the relationship between the emergence and termination of the period of existence of the claim and the duration of the subjective right that received the violation. The question of the existence of a certain subjective right outside the statute of limitations has always been quite relevant and, as historical analysis of his research shows, difficult. Of course, civil studies of these connections have taken place within the framework of the only generally accepted concept we have criticized so far, according to which the power to sue was considered an element of the subjective right itself, and acquired the ability to enforce after the offense. Within the framework of this concept, the scientific analysis of the duration of substantive law in view of the expiration of one of its integral elements - harassment - quite logically led to incorrect conclusions.
The current legislation also contributes to the assertion of erroneous legal position, some of which explicitly indicate the existence of regulatory law in a person who not only can not exercise it due to the duration of the offense, but generally missed the deadline for protection. For example, after the expiration of the statute of limitations on the requirements of the owner to return the property after the lease, the enforcement of this claim is impossible, he does not cease to be the owner, but the property remains with the untitled owner, who will acquire ownership Article 344 part 3 of the Civil Code of Ukraine.
However, it is clear that the commented theory is not able to cover all cases of protection of infringed rights, for example, this applies to issues related to the protection of property rights. The latter can exist both
in the regulatory state, which has an absolute character, and in the state of the right to protection, which is mediated within the framework of protective obligations. In this case, the violation of property rights, for example, is not associated with the loss of possession, does not terminate the regulatory right, which continues to exist for all other entities except the infringer. In turn, due to the violation of regulatory property rights, it can be protected by coercion. However, the commented theory on the continued existence of the violated right after its violation and after the expiration of the statute of limitations does not fit into the specific realities, which are that as a result of one violation there may be several different in content and form of protection of both non-judicial and judicial protection.
There are also unsubstantiated cases when the right to sue (statute of limitations) does not begin from the moment when the commissioner is aware of the violation of his right (say, when the right to sue arises from the time of receipt of information about the offender). What is the state of subjective substantive law from the moment of violation to the beginning of the antiquity? After all, the law has already lost its regulatory characteristics, and has not yet acquired protection. Despite the fact that civil law has taken some steps to determine the share of property owned by the untitled holder (acquisitive prescription, mechanism for protection of property rights, etc.), a significant period of time the property owner may remain a person who does not have, and often even deprived by law, the ability to exercise property rights (for example, a person who received property from the owner, but did not return it within the statute of limitations - Part 3 of Article 344 of the CCU). All these and other problems do not allow to satisfy the described theory of the continued existence of regulatory subjective law both before and after the expiration of the claim period.
At the same time, the legal construction, according to which the substantive subjective right is terminated with the expiration of the claim period, is even less balanced and rational. Thus, criticizing the theory of repayment of subjective substantive law at the end of the statute of limitations in connection with its inability to comply with the rule of Part 1 of Art. 267 of the CCU, we seem to agree with the supporters of another legal approach, according to which regulatory law with the expiration of the statute of limitations continues to exist, but being deprived of appropriate coercive protection. In fact, this is not the case. Let us allow ourselves to be critical of both points of view.
The problem of both directions of research was, first of all, that all scientific concepts developed in civilization on this issue were reduced to one or another justification of the regulatory mechanism established by law, and given the existing inviolable normative rule to adjust the content of specific social relations. . So, we've got a lot of big but ineffective theories. For example, the thesis of the continued existence of regulatory law after the coincidence of the statute of limitations can not be supported by anything, except the
rule of Part 1 of Art. 267 of the CCU, according to which the debtor who performed the obligation after the expiration of the statute of limitations, is not entitled to demand the return of the performed, even if he did not know about the expiration of the statute of limitations. Using this rule as a dogma, researchers have logically come to the wrong conclusion: the obligation (and hence the relevant subjective rights and legal obligations included in its content) begins from the moment of its origin and will continue until committed or terminated. After all, since in Part 1 of Art. 267 of the CCU refers to the fulfillment of an existing obligation, it does not end with the coincidence of the statute of limitations.
The second concept, which was aimed at legally substantiating the inexpediency and ineffectiveness of the existence of subjective civil law, deprived of the ability to be enforced, also practically reduced to adapting its basic provisions to the specified regulations on the proper performance of the obligation. In the end, this led to a generally promising area of research leading to inconsistencies and confusion. In our opinion, the main mistake here was to change the legal message and legal conclusion in the study of this temporal phenomenon.
Any legal analysis must be based not on the state of the normative superstructure, which is a secondary manifestation, but on a careful study of the nature and legal nature of the material relationship. And only the assessment of its internal properties will lead to the conclusion: since the civil relationship, and hence subjective law, continues to exist after the expiration of the statute of limitations (loss of its judicial implementation), so the debtor's performance is due, and the latter is not has the right to demand the return of the execution with reference to the fact that he did not know about the expiration of the statute of limitations, as enshrined in law. Thus, the legislation reflects the factual nature of social relations, researched and scientifically substantiated, and not vice versa.
And another, no less important drawback of these two directions is that they carried out a legal analysis of the commented temporal coordinates within the existence of a protected (regulatory subjective) right. The fact is that the modern development of civil doctrine allows a completely different assessment of the real nature of the relationship. According to the new civil concept, subjective substantive law is exercised within the regulatory legal relationship, and in case of violation of the latter there is a new separate protective obligation, which includes, in particular, claims, the duration of which is determined by the statute of limitations. Today, this theory has undeniable dominance in civilization [2, p. 26].
One of the shortcomings of the commented legal approaches is also the fact that their apologists considered only judicial protection to be appropriate, ie in fact the autonomous existence of other protection rights of the person, except the right to sue, was denied. However, it is obvious that coercion does not exhaust the protective nature of the law. Therefore, according to the law, the authorized person can protect his
material right with the help of other legal tools: operational measures, administratively, etc. After all, appealing to a debtor with a non-judicial claim that can be satisfied by the latter is also a kind of exercise of subjective protection law. At the same time, it is logical to assume that their implementation after the expiration of the statute of limitations is possible only if the existence of the protective substantive law.
Therefore, in the study of commented public relations, it should be borne in mind that civil law provides not only judicial mechanisms to protect violated civil rights [3, pp. 38-39]. In most cases, there are no regulations on non-judicial remedies regarding the period of their implementation: the law does not restrict the creditor's use of such remedies in time. And this can mean only one thing: the right to exercise the protection authority, which is part of the relevant protection obligation, exists for the duration of the civil protection law itself, except when the law explicitly establishes a special period of validity. Thus, the implementation of protection measures with the help of non-judicial jurisdictions, the use of permitted operational influence on the infringer outside the statute of limitations is a legitimate way to protect the violated substantive law. The violated substantive law after the expiration of the statute of limitations does not remain completely unprotected, although the degree of its protection is somewhat reduced.
Therefore, not only the content of the current civil law, but also the very essence of the commented relations do not give grounds to link the duration of the protected subjective right with the time of existence of the protected. For example, the overdue right to receive payment under the contract of sale can not exist in the regulatory regime and is terminated. From the time of the offense there is another - protection and legal relationship, the content of which includes various subjective rights of the carrier, aimed at terminating or compensating for the consequences of the violation, including identical in content regulatory protection right to demand performance in kind: pay freight costs. These protective powers can be exercised in a variety of ways: voluntarily by taking active action by the creditor or by performing the duty of the debtor, by applying jurisdictional or non-jurisdictional measures provided by civil law. If a person has chosen the judicial method of exercising his / her protection right, he / she has the right to obtain it if he / she exercises the substantive right to a claim (claim) due to him / her. Such exercise of the right is characterized by a certain established duration of the relevant power - statute of limitations, after this period the right to sue is terminated, and with it does not arise the right to enforce the protection claim. As we can see, only one power is exercised during the statute of limitations -harassment, and its course cannot be qualified as a time of implementation of a regulatory obligation or a protective legal relationship.
This legal approach makes it possible to assess the rule of Part 1 of Art. 267 CCU. First, as we have convincingly shown, the statute of limitations does not regulate the duration of the regulatory relationship, so
its expiration in no way affects the absence of regulatory subjective law. Secondly, the end of the statute of limitations does not terminate the protection of subjective law, which began from the moment of the offense, but only establishes the temporal coordinates for the element of this law - the claim, the implementation of which during the statute of limitations provides further judicial protection. Therefore, it is quite obvious that with the expiration of the statute of limitations, the duration of the protective subjective right of the commissioner continues, which at the same time loses the ability to enforce. Therefore, the relevant protective duty of the defaulting debtor to stop or compensate for the breach may be voluntarily performed by him after the expiration of the statute of limitations, for example, by voluntary transfer of funds. And such fulfillment of the long-standing security duty was meant when constructing the rule of Part 1 of Art. 267 of the CCU, such implementation by virtue of a direct indication of this rule will be appropriate.
Finally, given the modern view of protection rights as separate from the regulatory independent powers of the person, the question of the existence of a violated subjective right after the expiration of the statute of limitations becomes quite simple. The statute of limitations does not apply to regulatory civil law at all, as the latter is exercised through the voluntary performance by the obligor of his duty properly. Instead, the possibility of enforcing the claims stated in the lawsuit is an element of another - the protection of subjective civil law. This right at a certain stage of its existence has a coercive capacity, which is exercised through the state jurisdiction. It is this possibility of protection law and personifies the right to sue in the material sense (claim), which is subject to satisfaction. After the expiration of the claim, the protection right of its holder continues to exist, no longer having a claim.
Taking into account the research conducted in this chapter, we can draw some generalizing conclusions. The debate that has long been held in civil doctrine as to whether or not substantive law itself is terminated with the expiration of the statute of limitations is no longer so acute. The vast majority of scholars now believe that the expiration of the statute of limitations does not affect the existence of regulatory law, with which it is quite possible to agree. At the same time, almost all researchers are talking about the validity of the protected right itself, and this fact is related to the rule set out today in Part 1 of Art. 267 CCU. The following argument is made: it is due to the fact that the violated subjective right continues to exist after the statute of limitations has expired that voluntary performance of the duty is appropriate and irrevocable.
We cannot agree with this thesis. Article 267 of the Civil Code of Ukraine and similar norms of other codes refer to the voluntary fulfillment not of the debtor's regulatory obligation, but of what arises for him from the protection obligation. As you know, the content of the protection law may include both the requirement to perform the duty in kind and the requirement to pay a penalty, termination of
employment, compensation for material and moral damage (Article 16 of the CCU). Accordingly, the debtor has a certain obligation that corresponds to each of these requirements: to act in kind, to pay a penalty, to compensate for non-pecuniary damage, and so on. It is this obligation, performed after the expiration of the statute of limitations, is discussed in the commented legal norm, so the implementation of any of these requirements through the voluntary actions of the debtor will be appropriate.
In view of all the above and based on an analysis of the nature of the relationship under study, we will certainly come to the conclusion that there is a protective subjective civil law beyond the statute of limitations. It is erroneous to say that the creditor can no longer demand anything from the debtor, and the debtor is not obliged to do anything [4, p. 84]. On the contrary, the performance of his duty by the obligor is the realization of the material right of the creditor. On the other hand, the conclusions about the lack of a protective mechanism after the expiration of the claim period are unfair. The protective legal relationship contains a non-litigation requirement against the debtor. Such a requirement is not extinguished by prescription, and its voluntary implementation by the latter means the protection of violated civil rights after the expiration of the statute of limitations.
We have already made relevant proposals in the literature, and we will cite them again on occasion. "We believe that some other socially acceptable point of reference should be determined, according to which the social interest in the existence of the most longstanding subjective right is completely lost. It is proposed to indicate this period five years after the expiration of the statute of limitations for the relevant requirements. However, given the social purpose of certain subjective rights, this period may be different or differentiated on certain grounds. But the fact that the maximum duration of a long-standing subjective right must be set, we believe, is obvious. This will contribute to both the certainty of material turnover and the stabilization of the relationship itself " [5, p. 185].
LITERATURE:
1. Pidoprigora O.A., Kharitonov E.A. Roman law. Kiev: Jurinkom Inter, 2003. 512 p.
2. Krasheninnikov E.A. The subject of judicial protection and the subject of implementation in the claim proceedings. Mechanisms for the protection of subjective civil rights. Sat scientific works. Edited by V.V. Butnev, Yaroslavl. 1990. YarSU. Pp. 17-26.
3. Motovilovker E.Ya. The right to sue in the mechanism of protection of subjective civil rights. Mechanisms for the protection of subjective civil rights. Sat scientific works. Ed. by V.V. Butnev, Yaroslavl: YarSU, 1990. P. 36-46.
4. Ring M. The effect of the statute of limitations in Soviet civil law. Soviet state and law. 1953. №8. Pp. 76-85.
5. Guyvan P.D. Theoretical questions of terms in private law: monograph. - Kharkiv: Law, 2014. 632 p.
