The abolishment of the period of limitations
Draft Law on amendments to the Civil Code of Ukraine (regarding period of limitation) No. 4521 dated 25 April 2016 is registered in Verkhovna Rada of Ukraine. According to the foregoing Draft Law, it is proposed to amend the Art. 268 of the Civil Code (which establishes the claims for which the period of limitation does not apply) with the claims on finding a legal act of a public authority, the authority of ARC or local government, which violates possessory and other property rights to natural objects of ownership of the Ukrainian people and objects withdrawn from circulation or limited in circulation to be unlawful and application of consequences of its invalidity.
Concerning the meaning of Art. 268 of the Civil Code of Ukraine, we can conclude that all the claims to which the period of limitation does not apply (e.g., claims arising from the violation of personal non-property rights) do not address property rights. Ownership of the land is a property right, therefore the authors of the Draft Law intricately formulated it as a contesting not the right of ownership but the act, according to which this right has been provided. In fact, this does not change the meaning and is contrary to the content and spirit of the above-mentioned Article.
Now the general period of limitations (3 years from the date when the person has learned or could learn about the violation of his right or the person who violates it) is applicable to the claims on finding the possessory and other property rights to be unlawful.
The authors of the Draft Law justify the need for changes by the necessity to reduce corruption factors that decrease public confidence in all branches of government because of making decisions to transfer the objects of property of the Ukrainian people (roads, bridges, parkland, coasts, forests, etc.) to the private ownership, impossibility to use them by citizens and return to state and municipal property.
It should be noted that the existence of the period of limitation is because of the following:
- It promotes to reveal the truth of the case, since after the expiration of a long time evidence may be lost and the reliability of the existing evidence may raise doubts;
- It prevents the abusing of the right on action (vexatious litigation): subject of law can’t groundlessly delay the litigation;
- It creates conditions for the stabilization of civil matters, predictability of the legal framework, removal of incertitude in relations between those involved;
- It provides timely protection of rights and interests of subjects of civil matters, in particular from unreasonable requirements;
- It stimulates the activity of participants of civil circulation in effectuation of their rights, disciplines them and enhances the mutual control over performance of obligations.
One of the fundamental rules of any civilized legal system is setting a time frame for the request for protection of the rights and interests. It is unacceptable to abolish the period of limitation − it is a factor favouring corruption − the authors of the Draft Law create it, not eliminate. Making such amendments negates any previous achievements of Ukrainian legal system, which subsequently worsens unprecedentedly the indicators of the investment climate of the state. Who will invest in the country, its land, if we nullify ways to protect the rights and interests?
In addition, it should be noted that in the case of adoption of the Draft Law its provisions regarding the abolishment of the period of limitations will come into force from the date of publication of the Law and they will not apply retroactively and, therefore, will be not applicable to disputes concerning objects, which were alienated previously.