Chapter 10. Limitation period in foreign trade relations

The period of time after which the possibility of enforcing civil law by filing a claim in court or arbitration ceases is usually called the limitation period (anrn. legal limitation).

Setting deadlines limitation period aims to ensure that entitled persons make demands for the protection of their rights without undue delay, reducing the period of instability and uncertainty in the relationship between the disputing parties, in order to discipline the participants civil turnover and stimulate their activity in exercising their rights and fulfilling their responsibilities.

The limitation period is important in foreign trade relations. The question of whether the statute of limitations has expired or not inevitably arises when bringing claims for disputes arising from foreign trade contracts. In order to answer this question, judges and arbitrators are guided, first of all, by the terms of contracts, international trade customs, as well as the rules of law of the country specified in the contract. If the contract does not specify the law of the country, the arbitrators may apply the law in accordance with conflict of laws rule, which they consider acceptable for this case, that is, in accordance with the legal norms contained both in domestic legislation countries and in international treaties.

The limitation period means the period established by law or an international agreement, during which the courts, at the request of the person whose right was violated, protect this right.

Consideration of this issue is explained by the fact that in the field international relations most often named legal institute applies in connection with claims related to the execution of contracts. It is necessary to pay attention to the fact that the nature of this institution is understood in various countries differently, not to mention the differences in determining the limitation periods. In some states, the rules on limitation of actions are considered as rules of substantive law, and in others - as rules procedural law. In the countries of the Anglo-American legal system, limitation of actions was usually universally recognized as an institution of procedural law. From this approach it followed that the court should be guided on issues of limitation by its own procedural law, i.e. law of the court. However, even in states where the limitation period is recognized by the institution civil process,Applicability Approach foreign rules about the limitation period has changed a lot. Thus, in Great Britain in 1984 it was adopted special law about foreign claim periods, according to which in English private international law the rules on limitation of actions foreign law began to be considered related to substantive law agreement. And in the practice of US courts, a tendency is making its way towards abandoning the characterization of the institution of limitation as procedural, and towards applying the approach to the choice of law adopted in international private law. In Russia general rule on this issue is contained in Art. 1209 of the third part of the Civil Code, it is written: “The limitation period is determined by the law of the country that is subject to application to the corresponding relationship.”

IN different countries Various limitation periods have been established, and different approaches have been applied to resolving the issue of interruption and suspension of the limitation period. This explains the conclusion in 1974 of the Convention on the Limitation Period in the International Sale of Goods. The Convention was developed by UNCITRAL. She regulates one of critical issues related to the exercise of the rights of the parties to the transaction international sales goods. It establishes a uniform limitation period for all international sales contracts, which is equal to four years. According to the laws of various countries, the statute of limitations ranges from six months to 30 years, so for many of them the four-year period does not seem to be the limit. The Convention provides that the four-year limitation period for a claim arising from a breach of contract begins on the day on which such breach occurred, and for a claim arising from a defect or other non-conformity of the goods with the terms of the contract, from the date actual transfer goods to the buyer for his refusal to accept the goods.

The 1974 Convention also established rules on the interruption or extension of the limitation period, its modification and calculation procedure, and also introduced general limitation limitation period (10 years) and provides for the consequences of its expiration. In accordance with the Convention, the expiration of the limitation period is taken into account when considering a dispute only upon the application of a party participating in the process. If there is such a statement, the right of claim is subject to recognition and enforcement if the consideration of the dispute began after the expiration of the limitation period. The text of the 1974 Convention, without amendments made by the 1950 Protocol, is in force in 24 states; the text of the Convention as amended is in force in 17 states (Belarus, Moldova, Poland, USA, Cuba, Egypt, Slovakia, Hungary, etc.).

Although the USSR signed this Convention, it did not enter into force for Russia because it was not ratified. However, the literature specifically drew attention to the fact that, subject to certain conditions, it is subject to application to contracts for the international sale of goods concluded Russian organizations, but not as an international treaty of Russia, but due to the fact that a party to the Convention is the corresponding foreign country, the law of which is subject to application to this contract. The rules of the Convention are applied when considering disputes in Russia, when these disputes are governed by the law of the following states: Argentina, Belarus, Cuba, Egypt, Guinea, Mexico, Moldova, Poland, Romania, Slovenia, Uganda, Uruguay and Zambia.

According to the Minsk Convention of 1993 (Article 43) and the Chisinau Convention of 2002 (Article 46), issues of limitation of actions are resolved according to the legislation that is applied to regulate the relevant legal relationship.

The Model Code of the CIS countries stipulated that the limitation period is determined by the law of the country used to regulate the relevant relations. However, the code additionally provided that if at least one of the participants in the relevant relationship is a citizen or legal entity of the relevant state, then claims to which the statute of limitations does not apply are determined by the law of that state. These rules were reproduced in the Law on Private International Law of Azerbaijan and in a number of civil codes of other CIS countries.

Previous

IN last decades in states in which the limitation period is recognized as an institution of civil procedure, there have been major changes in the approach to the application of foreign rules on limitation of actions. Thus, in the UK in 1984, a special Law on Foreign Limitations was adopted, according to which in English private international law the rules on the limitation period of foreign law are considered to relate to the substantive law of the contract. And in the practice of US courts, a tendency is making its way towards abandoning the characterization of the institution of limitation as a procedural one and towards applying the approach to the choice of law adopted in international private law. Calculation of the limitation period An important issue Institute of Limitations in international law is the fact that the statute of limitations can vary greatly from country to country.

Limitation periods in Vietnam

As soon as the defendant refers to the expiration of the statute of limitations, and the court establishes the correctness of such a reference, the claim should be refused even if absolutely reasonable requirements plaintiff. The concept of limitation in international law In 1974
The Convention on the Limitation Period in the International Sale of Goods was concluded. The Convention establishes a uniform limitation period for all international sales contracts - 4 years.

The specified period begins from the day when there was a violation of the contract, and in relation to a defect or other non-compliance of the goods with the terms of the contract - from the day of the actual transfer of the goods to the buyer or his refusal to accept the goods. The Convention also establishes rules on the interruption or extension of the limitation period, its modification and calculation procedure, introduces a general limitation of the limitation period to 10 years and provides for the consequences of its expiration.

International practice: statute of limitations

Info

However, we should not forget that the legislator linked the suspension of the period to one important condition, namely: all of the above circumstances must arise or exist in the last 6 months of the limitation period, and if it is 6 months or less than 6 months - during the entire period . Restoring the running of the limitation period The running of the limitation period will be restored when the factors that served as the basis for its suspension no longer exist: the serviceman returns from the war, negotiations with the mediator end in failure, or the flooding in the region is canceled state of emergency And authorities will start work and so on.

Moreover, if at the time of suspension the period was already less than 6 months, then it will be extended to 6 months. And if the period was 6 months or less, then it is restored to the statute of limitations.

Limitation period in international law

German authorities feared that individuals who collaborated with the Nazi regime would escape civilian legal liability. Therefore, it extended the statute of limitations to give descendants the opportunity to file claims after 20-30 years.
Federal Law No. 100-FZ “On Amendments to Subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three of the Civil Code Russian Federation" dated 05/07/2013. Information mail Supreme Arbitration Court No. 126 “Review of judicial practice on some issues related to the recovery of property from someone else’s illegal possession” dated November 13, 2008. Resolution of the Plenum Supreme Court Russia No. 43 “On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period” dated September 29, 2015. Real example legal practice. A real example of legal practice.

Limitation periods in foreign legislation

In 2013, the legislator seriously changed the chapter of the Civil Code of the Russian Federation on the limitation period. He will tell you what these novelties are and how they will affect the development of judicial practice. new article our lawyers.

Definition of the concept Civil law, like a skyscraper, rests on a foundation of regulations and principles. One of them is the statute of limitations. Take out this brick and the whole building will collapse.

Scientists and lawyers give various and rather complex definitions of this term in textbooks. But we will not delve into the jungle and formulate it simply: The statute of limitations is a period of time established by Russian legislation during which a person or legal entity (firm, company) has the right to go to court to exercise or protect rights.

And since the main method of protection in the civilized world is a statement of claim, the period of time is called the statute of limitations.

Statute of limitations: changes in the law

Cayman Islands General period: 6 years, with some exceptions when the statute of limitations may increase or decrease. Calculation begins from the moment of breach of contract, damage occurs, etc. China General limitation period for civil claims is 2 years.

Attention

For some types of disputes, the statute of limitations may be longer or shorter. It begins to be calculated from the moment when the person learned or should have learned about the violations.

Cyprus The general statute of limitations for civil claims is 6 years, due to negligence - 3 years, 12 years for loans secured by a mortgage or pledge. Other statutes of limitations have also been established. From the moment of violation.

Germany Standard term - 3 years. For some requirements, more long term. The statute of limitations begins to run from the end of the year in which the claim arose and the person became aware of the violations.
Hong Kong Standard term - 6 years.
They distinguish the beginning of the limitation period, the possible suspension of the period, a break, as well as the restoration of the limitation period under certain circumstances. Limitation periods are not mandatory for application by the court if the plaintiff or defendant themselves have not appealed to this institution of law. Who can claim the expiration of the limitation period or a violation during its course is disclosed in the chapter “Application of the limitation period.” It is interesting to use the institution of limitation of actions in other countries, because they are radically different from each other.

The original and unique development of legislation speaks of various influences history during which law is formed and developed. Law of the Council of EuropeThe Council of Europe was founded in 1949.

ten Western European countries.

1. Due to the presence of contractual and tortious grounds for the emergence of obligations, as well as the validity of many contractual obligations specific to their economic content, different limitation periods are established. At the same time, the tendency of legislation is to reduce them. Limitation periods in legal science are divided into general and special.

A very complex system of limitation periods operates in France. The Federal Civil Code (Articles 2262, 2277, 2271-2273) and other laws provide for three main groups of such terms:

30 years is the general period for all claims for which the law does not provide for special, shorter periods;

five years - according to requirements from obligations that must be fulfilled with a certain - annual or shorter - frequency and in an established volume (requirements from the lease agreement, for the collection of interest and dividends, wages etc.) ;

from six months to two years - for claims for obligations, evidence of fulfillment of which may be lost in long terms, etc.

In Germany total term the limitation period is 30 years (§ 196 GGU) Excluding the above, there are many shortened statutes of limitations (§ 197, 201 GGU), among which the doctrine distinguishes four groups. Periods from six months to two years are established for certain claims of merchants, in particular for claims for compensation for damage due to the lack of property of proper quality or price reduction. A two-year, and in some cases four-year limitation period has been introduced for claims from everyday transactions, a three-year limitation period for claims for damages, a four-year limitation period for unpaid periodic payments - interest, etc.

The general statute of limitations in Switzerland is ten years (Article 127 SCO). It is worth saying that for a number of claims, for example from a contract retail sales, hiring and some others, a shortened five-year period is established (Article 128 SHO), for claims from tortious obligations - a one-year period (Article 60 SHO)

In England, different statutes of limitations apply depending on the basis of the claim. It is worth saying that for claims arising from simple (informal) contracts and from torts, the limitation period is 6 years, and for claims arising from agreements “under seal” - 12 years. : There are also a number of statutes of limitations for certain types of claims. | In various US states, general statutes of limitations range from four to ten years. So, in the states of California and Texas, they are four years, in Illinois and Missouri - ten years, New York and Michigan - six, Wisconsin and Virginia - ten years, etc. At the same time, for individual species other deadlines have been established for claims.

National legal systems have different statutes of limitations for the same legal relations. This applies in particular to the timing of claims arising from the delivery of goods.

In France, for bringing such claims there are established following dates: when selling goods by a merchant seller to a non-commercial buyer - two years (Article 2272 of the Federal Civil Code), and in transactions in which both parties are merchants - ten years, unless the law provides for shorter statutes of limitations (Article 189 bis Federal Civil Code ) It must be remembered that such shortened periods apply, for example, for claims by the buyer for a price reduction or termination of the contract - one year (Article 1622 of the Federal Civil Code)

In Germany, a period of two years is established for claims arising from the sale and purchase (§ 196 GGU), but if we're talking about about the requirements bilateral restitution or price reduction, as well as compensation for losses due to lack of guaranteed by contract qualities, for movable things the accepted period is six months from the date of delivery of the goods, and for land plots - a year (§ 447 GGU)

Anglo-American law establishes uniform statutes of limitations for all claims arising from a purchase and sale agreement. In England, the statute of limitations is six years (Article 2 of the Limitation Act 1980), and in US law it is four years, although in some states it is set at five to six years, in particular in Oklahoma, Mississippi, South Carolina and Wisconsin.

The Limitation Convention of 1974, the provisions of which are dispositive character and are not subject to application in the event of their exclusion by the parties to the agreement (Article 3), it is provided single term limitation period - four years (Article 8) This period will be common for all types of claims from purchase and sale. Let us note that this abolishes the category of special shortened limitation periods adopted in the law of many countries, in particular for claims due to defects in the thing sold. The convention also contains provisions on the application of statutes of limitations only at the initiative of the parties, the contractual change of this period and its interruption.

2. In all legal systems the beginning of the limitation period is determined by the moment the right to claim arises, that is, the moment from which the obligation will be collectible and can be brought for forced execution.

If the contract provides for the performance of an action in fixed time, the limitation period begins with at this moment. If the contract includes a suspensive condition, the limitation period begins to run from the moment it occurs. For example, provided that the debt is paid at the first request of the creditor, the statute of limitations runs from the time the debtor is notified of the need for execution. When obligations arise from causing harm, the limitation period begins traditionally from the moment when victim knew or should have known about the injury to him

harm. But in case of violation absolute rights, in particular property rights, the limitation period begins from the moment of the offense.

3. The effect of the institution of limitation is legally associated mainly with the assumption of the creditor’s negligence in the timely presentation of their claims to the debtor. This provides the basis for the establishment in all legal systems of rules on the suspension and interruption of the limitation period in circumstances where the failure to file a claim is due to other factors.

Suspension refers to the rule that the statute of limitations does not count the time during which the entitled person is unable to bring a claim, or at least cannot be expected to bring a claim.

To the circumstances that determine the suspension of the statute of limitations, the law or the courts, in particular, the occurrence of force majeure circumstances, military actions, lack of incapacitated person legal representative and some other cases. The assessment of such circumstances belongs to the court or arbitration. Time during which they are valid specified circumstances, are not counted towards the statute of limitations, but after they have disappeared, the started running of the statute of limitations continues, that is, the time elapsed before the suspension is also taken into account.

A break in the limitation period is associated with the occurrence of circumstances that violate the limitation period, in which the previously elapsed time becomes useless. It is worth noting that it is not taken into account, and after these obstacles are removed, only a new period of limitation can begin.

There are two types of grounds for interruption, related to the actions of the creditor or debtor. First of all, the creditor brings a claim or performs actions equivalent to filing a claim. Such actions provided for by law, for example Art. 2244 and 2248 FGK, § 208 and 209 GGU, Art. 135-137 SHOZ, ᴏᴛʜᴏϲᴙis the seizure of the debtor’s property, filing claims through a bailiff or bankruptcy management etc. Secondly, recognition by the debtor in writing or orally(in Anglo-American law - only in writing) ϲʙᴏhis obligations. It is worth noting that it can be the result of a unilateral or bilateral act confirming an obligation or containing a promise by the debtor to fulfill it, or such behavior of the debtor from which it can be concluded that he is aware of his obligation and recognizes the rights of the creditor (for example, partial payment of a debt or interest, etc.) The creditor may interrupt the limitation period as many times as he considers necessary.

Security questions on the topic

/. What is meant by limitation period?

2. What are the principles of application of the statute of limitations?

3. What are the types of limitation periods and the rules for calculating these periods?

On September 1, 2013, the Federal Law of May 7, 2013 No. 100-FZ “On Amendments to Subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three” comes into force Civil Code Russian Federation". They make changes to Ch. 11 “Calculation of terms” and 12 “Limitation period” of the Civil Code of the Russian Federation. We will tell you in this article what you should know about calculating the limitation period.

A period established by law, other legal acts, a transaction, or appointed by a court is determined by a calendar date or the expiration of a period of time, which is calculated in years, months, weeks, days or hours. The deadline can also be determined by indicating an event that must inevitably occur ( Art. 190 Civil Code of the Russian Federation). The limitation period is the period for protecting the right under the claim of a person whose right has been violated ( Art. 195 Civil Code of the Russian Federation).

As defined Art. 191 Civil Code of the Russian Federation, the day after calendar date, installed certain period time, or the occurrence of an event that determines the beginning of the calculation of the limitation period, the limitation period begins to be calculated. For example, the contract may stipulate that the delivery of materials must be carried out no later than March 15, 2013. If the materials are not delivered on March 15, then the limitation period begins on March 16. Or the contract may stipulate that final payment under the contract must be made within three business days after the day the equipment is delivered. If the delivery was made on March 15, and payment was not transferred to the supplier’s account until March 20, then the limitation period is calculated starting from March 21.

General limitation period

As installed Art. 196 Civil Code of the Russian Federation, the general limitation period is three years from the date determined in accordance with Art. 200 Civil Code of the Russian Federation. In this case, the limitation period cannot exceed 10 years from the date of violation of the right for the protection of which this period was established. Before such a time limit Art. 196 Civil Code of the Russian Federation didn't install.

The beginning of the limitation period has been established Art. 200 Civil Code of the Russian Federation. This article states that unless otherwise provided by law, the limitation period begins from the day when the person learned or should have learned about the violation of his right and who is proper defendant in a claim to protect this right.

For obligations with for a certain period execution, the limitation period begins at the end of the execution period.

For obligations for which the deadline for fulfillment is not defined or is determined by the moment of demand, the limitation period begins to be calculated from the day the creditor presents a demand for the fulfillment of the obligation, and if the debtor is given a period for fulfilling such a requirement, the calculation of the limitation period begins at the end of the period provided for the fulfillment of such requirements. In this case, the limitation period cannot exceed 10 years from the date the obligation arose.

By recourse obligations The limitation period begins from the day the main obligation is fulfilled.

The provisions of this article, compared to the version currently applied until September 1, 2013, remained unchanged with the exception of the fact that it is established that the statute of limitations cannot exceed 10 years from the date the obligation arose.

If the statute of limitations has passed, then filing claims against the other party to the transaction is impossible. An example is Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 06/08/2012 No. A11-4655/2011. It considered the following situation: The landlord and the tenant entered into a lease agreement real estate, according to which the tenant accepted for use a part non-residential premises. Additional agreement the parties changed the terms of the agreement in terms of the area of ​​premises leased and the amount rental payments. It also reflected the debt, which the tenant agreed to repay within a specified period and according to the given schedule. After some time, the parties terminated the lease agreement ahead of schedule.

By decision of the Arbitration Court the debt was collected from the tenant for rent, as well as interest for the use of others in cash. The tenant, disagreeing with this decision, went to court. He considered that the real estate contract was invalid because it was concluded under the influence of a misconception (he fraudulently the terms of the agreement on making a guarantee payment were imposed), and the area of ​​the rented premises was calculated incorrectly. These circumstances served as the basis for contacting arbitration court with this claim.

Judicial protection of violated civil rights is guaranteed within the limitation period ( Art. 195 Civil Code of the Russian Federation).

By virtue of the provisions Art. 178, clause 2 art. 181, clause 2 art. 199, clause 1 art. 200 Civil Code of the Russian Federation during the one-year limitation period for a request for recognition voidable transaction invalidity begins from the day when the plaintiff learned or should have learned about the circumstances that constitute the basis for declaring the transaction invalid.

From the case materials it follows that, as a basis for recognizing the disputed transaction as invalid, the tenant indicated the fraudulent inclusion of a guarantee payment clause in the lease agreement. This fact became known to the tenant after receiving his copy of the lease agreement signed by the landlord’s representative, therefore, it was from that moment that he could and should have learned about the circumstances referred to.

The tenant’s reference to the need to calculate the limitation period from the moment of termination of the lease agreement is unfounded and, moreover, does not matter, since at the time of filing statement of claim The statute of limitations on the stated claims has in any case expired.

Expiration of the limitation period in accordance with clause 2 art. 199 Civil Code of the Russian Federation, the application of which is declared by a party to the dispute, is the basis for the court to make a decision to reject the claim.

Special limitation periods

For certain types of requirements, such as evading notarization or state registration transactions, recognition of a transaction as invalid, limitation period for claims for poor quality work being installed special deadlines limitation period, shortened or longer than the general period. In particular, regarding notarization of a transaction or its state registration Art. 185 Civil Code of the Russian Federation The following has been established. A party that unreasonably evades notarization or state registration of a transaction must compensate the other party for losses caused by the delay in completing or registering the transaction. The limitation period for this claim is one year, while the general limitation period according to the norms Art. 196 Civil Code of the Russian Federation equal to three years.

Special limitation periods are subject to the rules established the following articles Civil Code of the Russian Federation:

- Art. 195“The concept of limitation of actions”;

- clause 2 art. 196(establishes a provision that the total limitation period should not exceed 10 years);

- Art. 198“Invalidity of the agreement to change the statute of limitations”;

- Art. 199“Application of the limitation period”;

- Art. 200“The beginning of the limitation period”;

- Art. 201“Limitation period for cases of change of persons in an obligation”;

- Art. 202“Suspension of the limitation period”;

- Art. 203“Break of the limitation period”;

- Art. 204“The running of the limitation period when protecting a violated right in judicial procedure»;

- Art. 205“Reinstatement of the statute of limitations”;

- Art. 206“Fulfillment of obligations after the expiration of the limitation period”;

- Art. 207“Application of the limitation period to additional requirements».

Suspension of the limitation period

Article 202 of the Civil Code of the Russian Federation cases of suspension of the limitation period have been established. They are as follows:

1) if the filing of a claim was prevented by an extraordinary and unavoidable circumstance under the given conditions (force majeure);

2) if the plaintiff or defendant is part of the RF Armed Forces, transferred to martial law;

3) due to the deferment of fulfillment of obligations established on the basis of law by the Government of the Russian Federation (moratorium);

4) due to suspension of the law or other legal act regulating the corresponding attitude.

The running of the limitation period is suspended provided that the specified circumstances arose or continued to exist in the last six months of the limitation period, and if this period is six months or less than six months, during the limitation period.

If the parties resorted to provided by law dispute resolution procedure in out of court(mediation procedure, mediation, administrative procedure etc.), the limitation period is suspended for the period established by law for carrying out such a procedure, and in the absence of such a period - for six months from the date of commencement of the relevant procedure.

Now this article contains provisions that the conclusion of an agreement by the parties to conduct a mediation procedure in accordance with the Federal Law of July 27, 2010 No. 193-FZ “On alternative procedure settlement of disputes with the participation of a mediator (mediation procedure)" is the basis for suspending the limitation period. In this case, the limitation period is suspended from the moment the parties enter into an agreement to conduct a mediation procedure until the termination of the mediation procedure.

From the date of termination of the circumstance that served as the basis for suspension of the limitation period, its period continues to run. The remaining part of the limitation period, if it is less than six months, is extended to six months, and if the limitation period is six months or less than six months, to the limitation period.

As a result of changes to Art. 203 Civil Code of the Russian Federation the expiration of the limitation period when filing a claim in in the prescribed manner will not be interrupted from September 1, 2013. According to the provisions of this article, the running of the limitation period will be interrupted by the commission obligated person actions indicating recognition of the debt.

Limitation period when protecting rights in court

A person whose rights have been violated has the right to go to court and defend his rights in court. What happens to the statute of limitations when going to court? The answer to this question is contained in Art. 204 Civil Code of the Russian Federation. It follows from the provisions of this article that the statute of limitations does not run from the date of application to the court in the prescribed manner for the protection of a violated right throughout the entire time that judicial protection of the violated right is carried out.

If the court leaves the claim without consideration, the limitation period that began before the filing of the claim continues to general procedure, unless otherwise follows from the grounds on which the implementation judicial protection rights terminated.

IN Resolution of the Federal Antimonopoly Service dated January 18, 2013 No. A35-3215/2012 the court indicated that due to para. 1 tbsp. 204 Civil Code of the Russian Federation If the claim is left by the court without consideration, then the limitation period that began before the filing of the claim continues in the general manner. According to the court, this rule (compared to para. 2 tbsp. 204 Civil Code of the Russian Federation) means that the running of the limitation period, which began before the filing of the claim, continues in the general manner, that is, it is not recognized that there was a break in the limitation period (suspension of the period), and, accordingly, when calculating it, the time from the date of filing the claim to the day issuing a court ruling to leave this claim without consideration. A similar position is contained in rulings of the Nineteenth Arbitration Court court of appeal dated 10/04/2012 No. A35-3215/2012, dated November 28, 2012 No. A08-4980/2012, Seventeenth Arbitration Court of Appeal dated September 25, 2012 No. 17AP-8742/2012-GK and other judicial acts).

If the court leaves without consideration a claim brought in a criminal case, the running of the limitation period that began before the filing of the claim is suspended until the commencement of the claim. legal force a verdict by which the claim was left without consideration.

If, after leaving the claim without consideration, the unexpired part of the limitation period is less than six months, it is extended to six months, except for cases where the grounds for leaving the claim without consideration were the actions (inaction) of the plaintiff.

Provisions Art. 204 Civil Code of the Russian Federation have expanded significantly compared to the current edition (until September 1, 2013). The provisions on the procedure for calculating the limitation period if a claim (not related to criminal law) was left by the court without consideration were not reflected in this article.

Limitation period for additional claims

In addition to the main requirement, additional requirements may be presented to the party to the transaction. Let's take this situation as an example. According to the norms of paragraph 10 of Art. 9 Federal Law dated July 21, 2005 No. 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” is included in the contract required condition on the liability of the supplier (performer, contractor) for non-fulfillment or improper execution obligations specified by the contract. As liability for non-fulfillment or improper execution of a contract, payment of a fine, penalty or penalty may be provided.

Let's imagine such a situation. The customer of the contract does not fulfill his obligations in a timely manner - in established by the contract terms does not transfer payment under the contract. At the same time, the terms of the contract stipulate that a penalty will be charged for the customer’s failure to fulfill its obligations in a timely manner. Repayment of the obligation is the main requirement of the contract, and payment of the penalty is an additional one. As installed new edition Art. 207 Civil Code of the Russian Federation, with the expiration of the limitation period for the main claim, it is considered expired statute of limitations and for additional claims (interest, penalties, pledge, surety, etc.), including those that arose after the expiration of the statute of limitations on the main claim.

In case of missing the deadline for presentation for execution executive document according to the main claim, the limitation period for additional claims is considered expired.

Article 198. Invalidity of an agreement to change the limitation period

Commentary on Article 198

(a) The limits of the mandatory nature of the rules on limitation periods. By Russian law limitation period refers to imperative established by law civil term. The statute of limitations and the procedure for calculating them cannot be changed by agreement of the parties (paragraph 1 of Article 198 of the Civil Code of the Russian Federation). In some foreign legal orders and unified acts private law, contractual changes to the limitation periods are allowed (Article 10.3 UNIDROIT Principles, art. III.-7:601 Model Rules of European Private Law). There are two known systems for changing prescription. According to one of them, it is only possible to reduce the limitation period by agreement of the parties, but not less than the minimum established by law. According to another, both reduction and extension of these terms are possible, but, as a rule, within the maximum period established by law.
From a theoretical point of view, it seems that there should be no obstacles in the law for contractual change limitation periods, especially if such contractual freedom is set by law within a certain framework, for example, when the law determines the minimum and maximum term limitation period, as well as a prohibition on reducing the limitation period for intentional violations. Parties civil relations, especially in the field law of obligations, have significantly more freedom: they can terminate their obligations at their own discretion, waive subjective civil rights, limit liability (except for intentional violation). Changing the limitation period itself to be subjective civil law does not affect, but only entails an expansion or narrowing of the time limits for its protection. If the legal order considers it permissible to grant freedom of discretion to the parties regarding the fate of the subjective law, then according to the principle a fortiori It is logical to provide freedom regarding the timing of his protection.
At the same time, these considerations are de lege ferenda. Since the limitation periods are imperatively established by law, and changing them is expressly prohibited, in practice there are no attempts to change them by agreement of the parties.
However, in some rare cases, the parties, under certain conditions, agree that one of them undertakes not to invoke the statute of limitations under penalty of contractual liability. The validity of such agreements and the consequences of their violation still remain uncertain in the Russian legal order and require additional reflection.
At the same time, it appears that within current legislation there are grounds for recognizing the right of a potential defendant (at least an entrepreneur), the statute of limitations for filing a claim against which has already expired, to waive the right to invoke the statute of limitations, provided that the potential plaintiff brings a claim within a given time. The waiver of the right to invoke limitation, declared in a similar format, is based on the norm of paragraph 6 of Art. 450.1 of the Civil Code of the Russian Federation on refusal to exercise the right. There is hardly any reason to block the application of clause 6 of Art. 450.1 of the Civil Code of the Russian Federation in this context, in conditions where the law (clause 2 of Article 206 of the Civil Code of the Russian Federation) directly allows for the possibility of renewing the limitation period as a result of the written acknowledgment of the debt by the debtor. As is known, if more is allowed, then less is also allowed (principle a fortiori). If, in relation to obligatory claims, the renewal of limitation on the basis of a written acknowledgment of the debt can partially satisfy the needs of the parties and eliminate the need for them to resort to the institution of refusal to exercise the right, then in relation to other claims there are, by and large, no alternatives to refusal to exercise the right to invoke limitation. This, in particular, concerns the statute of limitations for challenging a transaction.
(b) Possibility of derogation from the rules on suspension and interruption of limitation periods at the will of the parties. By virtue of direct instructions in paragraph 2 of the commented article, the mandatory nature of the limitation period also applies to the grounds for suspension and interruption of the limitation period. In addition to the Civil Code of the Russian Federation itself, such grounds can only be provided for by law, but not by agreement. For example, the contract cannot provide that the limitation period will be considered interrupted not only by the debtor’s recognition of the debt, but also by the fact that the creditor presents a claim to him.
At the same time, the very fact of the onset of the statutory basis for a break in the statute of limitations (Article 203 of the Civil Code of the Russian Federation) is within the discretion of the debtor, since it depends on his will to perform or not to perform actions indicating recognition of the debt. Having agreed with the debtor on the recognition of an overdue debt on his part, the creditor de facto And de iure provides an extension of the statute of limitations.
The grounds for suspending the limitation period established by paragraph 1 of Art. 202 of the Civil Code of the Russian Federation, occur regardless of the will of the parties. If the suspension of the limitation period is not available to the agreement of the parties, changing the deadline for fulfilling the obligation, including in the event of an already delayed delay, is covered by the principle of freedom of contract and can serve to satisfy the relevant interests of the parties.
It should be noted that the Civil Code of the Russian Federation does not indicate here the restoration of the missed limitation period. In the context of paragraph 2 of Art. 206 of the Civil Code of the Russian Federation, at a minimum, the parties to the obligation can, either by their agreement or on the basis of unilateral written recognition by the debtor of the debt, renew the missed limitation period. Accordingly, the parties do not need to restore the missed statute of limitations, since for these purposes the law has established the institution of renewal of statute of limitations. At the same time, it is apparently not a coincidence that the absence in paragraph. 2 of the commented article, the indication that the grounds for restoration of prescription can only be established by law may mean something more. Perhaps the law hints that the parties to the contract may provide for certain additional reasons to restore the limitation period (for example, to specify what those same good reasons to restore the limitation period) or extend the rules on restoring the limitation period (Article 205 of the Civil Code of the Russian Federation) to plaintiffs who are legal entities. However, any relevant arbitrage practice support for such a hypothesis is not known.