The Supreme Court of the Russian Federation on the limitation periods. Exceptional case explained

Limitation period - main application points.

On September 29, 2015, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 43 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period,” which explains the procedure for applying the limitation period. The article analyzes the main points of this Resolution.

Expiration of the limitation period:

- the moment when the limitation period begins, as a general rule, begins from the day when the person whose right was violated learned or should have learned about the totality of the following circumstances: about the violation of his right and about who is the defendant in the claim for the protection of this right;

- the moment the limitation period begins to run for individuals who do not have full civil or civil procedural capacity begins from the day when the legal representative of this individual learned or should have known about the relevant circumstances;

- the clarification regarding the running of the limitation period for claims of the liquidation commission (liquidator) on behalf of the liquidated legal entity is positive - it should be calculated from the moment when the violation of rights became known to the owner of this right (i.e. the legal entity itself), and not liquidation commission (liquidator);

— the calculation of the limitation period for claims of public legal entities represented by authorized bodies is calculated from the day when this entity learned or should have learned about the violation of its rights, and who is the proper defendant in the claim for the protection of this right;

- it is clarified that when bodies, organizations or citizens apply to the court in defense of the rights, freedoms and legitimate interests of other persons, the beginning of the limitation period is determined by the moment when the person in whose interests such an application was filed learned or should have known about the relevant circumstances statement.

At the same time, it has been established that the transfer of rights by way of succession, as well as the transfer of powers of one body of a public legal entity to another body, do not affect the beginning of the limitation period and the procedure for its calculation.

Claims not subject to statute of limitations

- the clarifications directly state that the limitation period does not apply to negatory claims (demands of the owner or another possessor to eliminate any violations of his rights, if these violations were not associated with deprivation of possession);

— the ambiguity has been eliminated regarding the possibility of attributing vindication claims to other requirements established by law, which, by virtue of paragraph. 5 tbsp. 208 of the Civil Code of the Russian Federation does not apply to the limitation period. The resolution determined that it is impossible to classify vindication claims as these requirements. Thus, the statute of limitations applies to vindication claims.

The maximum limitation period is 10 years.

— the beginning of this period is the day of violation of the right;

— the Resolution clarifies that for calculating the maximum limitation period, the day on which the person learned or should have learned about the violation of his right and who is the proper defendant in the claim for the protection of this right is not taken into account:

— the maximum period is applied by the court at the request of a party to the dispute.

However, it is important to note that the Decree defines cases in which the plaintiff cannot be denied protection of his right:

• before the expiration of the ten-year period, there was an appeal to the court in accordance with the established procedure;
• before the expiration of the ten-year period, the obligated person took actions indicating recognition of the debt.

- for claims for compensation for property damage caused as a result of a terrorist act, at the expense of the person who committed the terrorist act, as well as at the expense of his close relatives, relatives and close persons, if there are sufficient grounds to believe that money, valuables and other property have been received them as a result of terrorist activities and (or) are income from such property, the statute of limitations does not apply.

The procedure for applying the limitation period

- as a general rule, the limitation period applies only upon the application of a party to the dispute;

— the Resolution establishes that a statement of limitation made by one of the co-defendants does not apply to other co-defendants

— at the same time, it is clarified that a statement on the application of a limitation period made by a third party, as a general rule, is not a basis for the court to apply a limitation period. However, cases have been established in which a statement about missing the statute of limitations can be made by a third party: when, after the initial claim has been satisfied, it will be possible for the defendant to file a recourse claim or a claim for damages against a third party;

- an application for a limitation period is submitted in any form (oral or written) without any requirements for its execution or the time of its filing;

— The resolution directly stipulates that the limitation period missed by a legal entity, as well as a citizen-individual entrepreneur on claims related to the implementation of business activities, cannot be restored, regardless of the reasons for its omission;

— throughout the entire time that judicial protection is being carried out, the period of claim does not expire; the day of filing a claim in court is considered the day when the statement of claim is submitted to the postal service organization or filed directly with the court;

— the expiration of the limitation period is an independent basis for refusal of the claim;

- the running of the limitation period is suspended for the period established by law for a non-judicial dispute resolution procedure, and in the absence of such a period - for six months from the date of the start of such a procedure.

Interruption of the limitation period

- the running of the limitation period is interrupted by the obligor’s performance of actions indicating recognition of the debt. In the Resolution, the Supreme Court of the Russian Federation proposed a list of the main actions of the debtor, which can be considered an acknowledgment of the debt. These are: recognition of the claim; a change in the contract by an authorized person, from which it follows that the debtor acknowledges the existence of a debt, as well as a request from the debtor for such a change in the contract (for example, a deferment or installment plan); act of reconciliation of mutual settlements, signed by an authorized person, etc.;

- this break can only take place within the limitation period, and not after its expiration. At the same time, the Resolution establishes that after the expiration of the limitation period, the limitation period begins anew if the debtor or other obligated person acknowledges his debt in writing.

Calculation of the limitation period for time-based payments and interest

— the Resolution states that the limitation period for a claim arising from a violation by one party of the contract of the terms of payment for goods (work, services) in parts begins in relation to each individual part;

- for claims for overdue time payments (interest for the use of borrowed funds, rent, etc.), the statute of limitations is calculated separately for each overdue payment;

- with regard to claims for the collection of a penalty (Article 330 of the Civil Code of the Russian Federation) or interest payable according to the rules of Article 395 of the Civil Code of the Russian Federation, as well as interest on the amount of debt for the period of use of funds (Article 317.1. Civil Code of the Russian Federation), the limitation period is determined in relation to each day of delay;

- with the expiration of the limitation period for the main claim, the limitation period for additional claims is considered to have expired, however, this condition can be changed by agreement.

Thus, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 43 of September 29, 2015 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period” should have a significant impact on the practice of applying the limitation period by courts of general jurisdiction and arbitration courts. These clarifications are positive, since the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 2001 No. 15, the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 15, 2001 No. 18 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period” is outdated. These new clarifications will help improve the protection of the rights and legitimate interests of individuals and legal entities.

October 22, 2015

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The Plenum of the Supreme Court approved amendments to its own decisions regarding the statute of limitations and the payment of interest for the use of other people's funds. The speaker was Judge of the Supreme Court Sergei Romanovsky. He noted that amendments were necessary due to changes in civil legislation.

The document specifies the limitation periods and determines the amount of interest for the use of other people's funds. Romanovsky drew attention to the new edition of paragraph 27 of the Resolution of the Plenum of the Supreme Court “On some issues related to the application of the rules of the Civil Code of the Russian Federation on the limitation period” dated September 29, 2015.

Now it reads like this: “The provisions of the Civil Code of the Russian Federation on the limitation periods and the rules for their calculation as amended by 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 of the Civil Code of the Russian Federation are applied to claims that arose after the entry into force of this law, as well as to claims, the deadlines for submission of which were provided for by previously applicable legislation and did not expire before September 1, 2013 (clause 9 of Article 3 of Law No. 100-FZ).

The ten-year terms provided for in paragraph 1 of Article 181, paragraph 2 of Article 196 and paragraph 2 of Article 200 of the Civil Code of the Russian Federation (as amended by Law No. 100-FZ) begin to take effect no earlier than September 1, 2013 and apply no earlier than September 1, 2023 (clause 9 of Article 3 of Law No. 100-FZ as amended by Federal Law of December 28, 2016 No. 499-FZ “On Amendments to Article 3 of the Federal Law “On Amendments to Subsections 4 and 5 of Section I of Part One and 1153 of Part Three of the Civil Code of the Russian Federation”).

Amendments to paragraphs 39, 40 and 48 of the Resolution “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations” were also approved. In connection with changes in the provisions of paragraph 1 of Art. 395 of the Civil Code of the Russian Federation from August 1, 2016, “the amount of interest for the use of other people’s funds accrued for periods of delay after July 31, 2016, is determined by the key rate of the Bank of Russia in force during the relevant periods. These rules apply unless a different amount of interest is established by law or agreement.” Romanovsky recalled that previously, namely from June 1, 2015 to July 31, 2016, a different version was in force, according to which the interest rate was determined by the average bank interest rates on deposits of individuals.

At the same time, the text of the adopted document indicates that when deciding which version of paragraph 1 will be applicable, one should proceed from the period of delay in the monetary obligation. So, if the delay occurred after August 1, 2016, the new edition should be applied, but if the delay occurred during the period from June 1, 2015 to July 31, 2016, it is necessary to apply the norms of Federal Law No. 42 FZ.

The full text of the document can be found.

The new resolution of the Plenum of the RF Armed Forces takes into account changes in legislation that occurred in the application of the limitation period. The judges recalled that legal entities and individual entrepreneurs do not have the right to restore the missed deadline for filing a lawsuit.

At a meeting of the Plenum of the Supreme Court of the Russian Federation, Resolution No. 43 dated September 29, 2015, “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period” was adopted. The document is devoted to issues that arise in litigation when it is necessary to establish a statute of limitations. The Civil Code of the Russian Federation has recently been amended to establish a general limitation period of 10 years (except for cases provided for by the Federal Law “On Combating Terrorism”). The limitation period is provided for in Article 195 of the Civil Code of the Russian Federation. It can be applied by the court only on the basis of a statement from one of the parties participating in the trial. Therefore, it became necessary to provide clarification regarding the establishment of the period from which the limitation period begins to run. As a rule, these periods are calculated differently for citizens and legal entities. Moreover, if a citizen missed the deadline for filing a lawsuit, then, if there are good reasons, on the basis of Article 205 of the Civil Code of the Russian Federation, the court can reinstate him. To do this, you only need to submit a written request and confirm the validity of the reason. Legal entities and individual entrepreneurs are deprived of this privilege. This follows from the meaning of Article 23 of the Civil Code of the Russian Federation and Article 205 of the Civil Code of the Russian Federation, since all possible valid reasons are, in one way or another, related to the personality of the citizen. The judges of the Supreme Court of the Russian Federation also indicated:

For legal entities and individual entrepreneurs, the limitation period begins from the day when a person authorized independently or jointly with other persons to act on behalf of the legal entity learned or should have learned about the violation of the legal entity’s rights and who exactly is the proper defendant.

This is due to the fact that an appeal to the arbitration court is possible only with the indication of a specific person who, through his actions, violated the rights of the applicant. At the same time, the judges emphasized that changes in the composition of the governing bodies of a legal entity do not affect the start date of the claim period. Thus, if the director knew about the violated rights of the organization and resigned before going to the arbitration court, the statute of limitations continues to run for the new director. Considering this circumstance and the fact that restoration of such a period is impossible, businessmen should carefully monitor all claims work in the organization and ensure proper transfer of cases when the manager or lawyers are dismissed. Since the adoption of this resolution of the Plenum of the Supreme Court of the Russian Federation, the previous resolution of the Plenum of the Supreme Court of the Russian Federation dated November 12, 2001 N 15, the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 15, 2001 N 18 “On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period” should not used in legal disputes. The Chairman of the Supreme Court of Russia, Vyacheslav Lebedev, promised that the Supreme Court will become even more productive in working on its legal positions and analyzing judicial practice. The country's chief judge associated these positive changes with the unification of the Arbitration and Supreme Courts. This statement was made at a briefing within the framework of the international legal forum of Asia-Pacific countries, taking place these days in Vladivostok.

From the statement of Vyacheslav Lebedev, we can conclude that in the near future, lawyers will expect to update many of the decisions previously adopted by the Plenum of the Supreme Arbitration Court of the Russian Federation, taking into account changes in legislation and new legal positions of the supreme judges. So far, 12 new decisions of the Plenum of the Supreme Court of the Russian Federation are expected, which judges must adopt by the end of 2015 on economic disputes, as well as on civil, administrative and criminal cases. You can learn about them from the news of the St. Petersburg legal portal.

Resolution No. 43 was developed taking into account changes made to the legislation from September 1, 2013. It interprets in more detail controversial issues that were previously explained in the joint resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 2001 No. 15, and the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 15, 2001 No. 18 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period”, which has become invalid (clause 28 of Resolution No. 43).

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The updated provisions of the Civil Code of the Russian Federation on the limitation period and the rules for calculating them apply to claims that arose after September 1, 2013, as well as to claims, the deadlines for submission of which were provided for by previously applicable legislation and did not expire before September 1, 2013 (clause 27 Resolution No. 43, resolution of the Ninth Arbitration Court of Appeal dated November 18, 2015 No. 09AP-46498/2015-GK in case No. A40-83942/2015).

The document covers questions about the beginning of the limitation period and the procedure for its application. The provisions on restoration, suspension, and interruption of the term are analyzed. Situations where only one of the co-defendants or a third party declares the application of the limitation period are considered.

The concept of limitation of actions

Companies whose rights have been violated may seek protection in court. According to paragraph 1 of Resolution No. 43, the right subject to protection by the court should be understood as the subjective civil right of a particular person. A subjective right is a person’s claim to some good or form of behavior recognized by law, the use of which depends on the will of the subject.

But the defendant should not remain indefinitely in a state of uncertainty, under the threat of a judgment against him. That's why the possibility of defense is limited by the statute of limitations (Article 195 of the Civil Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation).

Clause 1 of Art. 10.1, clause 1, art. 10.9 of the UNIDROIT Principles of International Commercial Agreements 2004 (hereinafter referred to as the UNIDROIT Principles) say that the expiration of the limitation period does not terminate the right, but only prevents its enforcement. In this case, the violated right itself is preserved. Therefore, a person whose right has been violated can apply to court even after this period has expired.

Statute of limitations

As a general rule, it is three years (clause 1 of Article 196 of the Civil Code of the Russian Federation). But there are many exceptions to this provision.

Special dates

In some cases, the limitation period may be less than the general period. It should be noted that the establishment of shortened deadlines in the law does not violate the right to judicial protection provided for in Part 1 of Art. 46, part 4 art. 37 of the Constitution of the Russian Federation, because the right to defense itself is preserved.

Below are some examples of shortened statutes of limitations:

• pre-contractual disputes can be resolved within six months from the moment the disagreement arises (clause 2 of article 446 of the Civil Code of the Russian Federation);
• under a contract for the sale and purchase of goods for which there is no guarantee, the statute of limitations is two years (clause 2 of article 477 of the Civil Code of the Russian Federation, clause 1 of article 19 of the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights” );
• for claims for declaring a contested transaction invalid, the limitation period is equal to one year from the day the plaintiff learned (should have known) about the circumstances that are the basis for declaring the transaction invalid (clause 2 of Article 181 of the Civil Code of the Russian Federation);
• the deadline for requests to refute defamatory information disseminated in the media is one year from the date of publication (clause 10 of article 152 of the Civil Code of the Russian Federation);
• the decision of the meeting can be challenged in court within six months from the day the person learned or should have learned about the violation of his rights (Clause 5 of Article 181.4 of the Civil Code of the Russian Federation). In this case, it is impossible to file a claim after two years from the day when information about the decision made became publicly available to members of the company;
• The statute of limitations for claims made in connection with inadequate quality of work (clause 1 of Article 725 of the Civil Code of the Russian Federation), as well as from contracts of carriage (clause 3 of Article 797 of the Civil Code of the Russian Federation) is one year.

In all of these cases, a shortened statute of limitations is established. But the opposite situation also occurs. For example, in the event of discovery of significant defects in a product for which the service life has not been established, the limitation period is ten years (Clause 6 of Article 19 of the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights”). In any case, according to paragraph 2 of Art. 196 of the Civil Code of the Russian Federation, the limitation period cannot exceed ten years from the date of violation of the right for the protection of which this period was established.

No deadlines

In Art. 208 of the Civil Code of the Russian Federation establishes a list of requirements to which the statute of limitations does not apply at all, because in most of these cases the violation of rights is of a continuing nature. These are, in particular, the requirements:

• on the protection of personal non-property rights and other intangible benefits;
• depositors to the bank about the issuance of deposits;
• on compensation for harm caused to the life or health of a citizen;
• owner or other owner to eliminate any violations of his rights (Article 304 of the Civil Code of the Russian Federation). The Plenum of the Supreme Court of the Russian Federation paid special attention to the requirement to recognize the right or encumbrance as absent (clause 7 of Resolution No. 43). Such claims are called negatory. They are not based on contractual relations and are aimed at eliminating obstacles to the use or disposal of property. At the same time, the court believes that this provision of Art. 208 of the Civil Code of the Russian Federation does not apply to claims that are not negative (for example, to claims for the recovery of property - vindication, the limitation period for which is three years).

The Plenum of the RF Supreme Court additionally drew attention to the fact that in all the cases listed above, the ten-year period does not apply (clause 8 of Resolution No. 43).

In the next case, the Supreme Court, resolving a dispute about the limitation period, immediately referred to its two last significant clarifications.

Arbitrage practice

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The state property management body appealed to the court with a demand to recognize the company’s right to a controversial unfinished construction project as absent. Three authorities rejected the claim. They came to the conclusion that the unfinished site is real estate that exists in kind. This is evidenced by the act of readiness and the cadastral passport.

However, the RF Armed Forces did not agree with them. The court considered the disputed object to be a paving, i.e. part of the land plot, and not the foundation. At the same time, the RF Supreme Court referred to paragraph 38 of the Resolution of the Plenum of the RF Supreme Court dated June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation.” It says that the paving of a land plot that does not meet the characteristics of a structure is part of it and cannot be recognized as an independent immovable thing (unlike a foundation).

Another reason for the refusal of the claim by the lower authorities was the expiration of the general three-year limitation period. The RF Supreme Court also rejected this conclusion. He referred to paragraph 7 of Resolution No. 43 on the non-extension of the limitation period to the requirement to recognize the right as absent. On this score, the court spoke as follows: “Another approach does not ensure the reliability and publicity of the state register, does not contribute to the proper protection of the rights of participants in civil transactions and the restoration of their violated rights in relation to real estate objects” (Determination of the Supreme Court of the Russian Federation dated September 30, 2015 No. 303-ES15-5520 in case No. A51-12453/2014).

An interesting fact: Resolution No. 43 was issued one day before the preparation of the motivational part of the definition.

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There are agreements abroad on the non-application of limitation periods. They leave the parties the possibility of a compromise resolution of disagreements through mutual concessions, and therefore, the preservation of partnerships and continued cooperation. And according to paragraph 1 of Art. 10.3 of the UNIDROIT Principles, parties may change the limitation period. But by virtue of Art. 198 of the Civil Code of the Russian Federation in Russia, such agreements are prohibited: the limitation periods and the procedure for calculating them cannot be changed by agreement of the parties. However, the law sometimes allows parties to change the rules for calculating the statute of limitations. For example, under a contract for air transportation of cargo or mail (clause 2 of article 128 of the Air Code of the Russian Federation).

Beginning of the limitation period

As a general rule, the limitation period is calculated from the day (not the next!) day when the person learned (should have known) about the violation of his right and who is the proper defendant in the claim for the protection of this right (clause 1 of Article 200 Civil Code of the Russian Federation, clause 1 of Resolution No. 43). In this case, it is assumed that the person knew (should have known) about the violation at the time of its commission. By the way, in paragraph 1 of Art. 10 of the Convention on the Limitation Period in the International Sale of Goods (concluded in New York on June 14, 1974, hereinafter referred to as the Convention), this thesis is formulated as follows: “The right of action arising from a breach of contract is deemed to arise on the day on which The place is such a violation.” And in paragraph 3 of the same article it is said that if one party deceived the other party, then the right to judicial protection of the injured party arises from the day when the deception was or could reasonably have been discovered. This paragraph is precisely consistent with the rule that the statute of limitations begins from the day when the person learned or should have learned about the violation of his right.

For obligations with a certain period of performance, the limitation period begins at the end of the performance period (Clause 2 of Article 200 of the Civil Code of the Russian Federation). Despite the simplicity of the rules, courts have previously made mistakes when calculating time limits.

Arbitrage practice

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The dispute arose about compliance with the statute of limitations.

The arbitrators proceeded from the fact that for obligations with a certain period of performance, the limitation period begins at the end of the performance period (Clause 2 of Article 200 of the Civil Code of the Russian Federation). In this case, the period, calculated in months, expires on the corresponding date of the last month (clause 3 of Article 192 of the Civil Code of the Russian Federation).

The deadline for fulfilling the obligation ended on the 17th. The appeal and cassation decided that the statute of limitations expires on the 18th of the relevant month. But the Supreme Arbitration Court of the Russian Federation corrected them, indicating that in reality the statute of limitations expires on the 17th day of the corresponding month (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 3, 2014 No. 1487/14 in case No. A40-13504/2013).

The Plenum of the RF Supreme Court indicated that the ten-year limitation period begins from the date of violation of the right. Exceptions are made when claims are made (clause 8 of Resolution No. 43):

• on the application of the consequences of the invalidity of a void transaction and on the recognition of such a transaction as invalid (clause 1 of Article 180 of the Civil Code of the Russian Federation). As a general rule, a void transaction can be challenged within three years from the date on which its execution began. But if a claim is brought by a person who is not a party to the transaction, then the statute of limitations is calculated from the day when he learned (should have known) about the beginning of the execution of the contract;
• for obligations the fulfillment period of which is not determined or is determined by the moment of demand (paragraph 2, paragraph 2, article 200 of the Civil Code of the Russian Federation). In such a situation, the statute of limitations begins to run from the day the demand for performance of the obligation is presented or from the date of expiration of the period specified for performance.

When calculating the ten-year period, the day on which the person learned or should have learned about the violation of his right and who the proper defendant is is not taken into account. In this case, the statute of limitations cannot be restored (otherwise may be provided by law).

This provision is consistent with Art. 191 of the Civil Code of the Russian Federation states that the course of a period, which is determined by a period of time, begins the next day after the calendar date or the occurrence of an event that determines its beginning.

Calculation of deadlines for certain categories of persons

For companies, the start of the limitation period is determined, among other things, by the presence of bodies acting on their behalf (clause 3 of Resolution No. 43). The Plenum of the Supreme Court of the Russian Federation noted that a change in the composition of the company’s bodies (for example, a change of director) does not affect the determination of the beginning of the limitation period.

When a claim is brought against the debtors of a company by the liquidation commission, the limitation period is calculated from the moment when the owner of this right - the organization, and not the liquidation commission or the liquidator - became aware of the violated right (Articles 61-63 of the Civil Code of the Russian Federation).

If an authorized person (for example, a prosecutor) goes to court in defense of other entities, then the statute of limitations should be calculated from the moment when the person in whose interests learned (should have known) about the violation of his right and who is the proper defendant. such an application was submitted (clause 5 of Resolution No. 43).

When there is a change of persons in the obligation, the beginning of the course and the procedure for calculating the limitation period do not change (Article 201 of the Civil Code of the Russian Federation, paragraph 6 of Resolution No. 43). The period is counted from the day when the original holder of the right learned (should have known) about the violation of his right and who is the proper defendant (Article 201 of the Civil Code of the Russian Federation).

If the original defendant declared a missed deadline, a repeated application from his legal successor is not required, because all actions performed in the process before its entry into the case are mandatory for him (part 2 of article 44 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation), part 3 of article 48 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), p. 13 Resolution No. 43).

The procedure for applying the limitation period

The limitation period (including ten years) is always applied only at the request of a party to the dispute (clause 2 of Article 199 of the Civil Code of the Russian Federation, clause 8 of Resolution No. 43, clause 2 of Article 10.9 of the UNIDROIT Principles). A similar norm is established in Art. 24 of the Convention.

The Plenum of the Supreme Court of the Russian Federation indicated that this rule is consistent with the provision that each person participating in the case must prove the circumstances to which he refers (Article 56 of the Code of Civil Procedure of the Russian Federation and Article 65 of the Arbitration Procedure Code of the Russian Federation). Consequently, the party to the case citing the expiration of the statute of limitations bears the burden of proving this circumstance (clause 10 of Resolution No. 43).

Here it must be said that several persons can act simultaneously on each side of the obligation (clause 1 of Article 308 of the Civil Code of the Russian Federation). Since each of the defendants acts independently in relation to the other party (part 3 of article 40 of the Code of Civil Procedure of the Russian Federation, part 3 of article 46 of the Arbitration Procedure Code of the Russian Federation), the Plenum of the Supreme Court of the Russian Federation concluded that the defendant’s statement about the application of the limitation period does not apply to co-defendants . This also applies to cases of joint and several obligations (liability). Let us recall that in case of a joint and several obligation, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in part of the debt (clause 1 of Article 323 of the Civil Code of the Russian Federation).

At the same time, if the plaintiff’s claim cannot be satisfied at the expense of other co-defendants (for example, in the case of a claim for the recovery of an indivisible thing), and one of the co-defendants declared that the statute of limitations had expired, the plaintiff’s claims may remain unsatisfied.

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The statement of the improper party on the application of the limitation period has no legal significance (paragraph 4, paragraph 10 of Resolution No. 43).

Statement by third parties on the application of the limitation period

Since the limitation period should be applied only upon the application of a party to the dispute, the Plenum of the RF Supreme Court established a rule according to which a statement about missing a deadline made by a third party is not grounds for refusing a claim. Indeed, by virtue of Art. 40 Arbitration Procedure Code of the Russian Federation, art. 34 of the Code of Civil Procedure of the Russian Federation, third parties are not parties to the case.

At the same time, the practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry adheres to a less formal and more flexible approach, according to which the limitation period can be applied at the request of a third party in a dispute (decision of the ICAC at the RF Chamber of Commerce and Industry of April 11, 2003 No. 158/2001). This happens because in Part 2 of Art. 51 of the Arbitration Procedure Code of the Russian Federation and Part 1 of Art. 43 of the Code of Civil Procedure of the Russian Federation, third parties who do not make independent claims, as a general rule, enjoy procedural rights and bear the procedural responsibilities of the relevant party. However, the right to file a statement about the expiration of the limitation period is contained in the norms of substantive law, not procedural law, therefore it is not entirely correct to attribute it to procedural rights.

When a defendant does not seek to assert a statute of limitations, third parties may begin to worry that the defendant will file a claim for damages or subrogation against them after losing the case. The Plenum of the RF Armed Forces, generally adhering to the previously stated opinion, made an exception for these cases, allowing third parties to claim that the statute of limitations had passed (clause 10 of Resolution No. 43).

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Recourse is the right of a person to claim back the amount paid. It arises as a new obligation from one person to another. For example, according to the general rule of paragraph 1 of Art. 379 of the Civil Code of the Russian Federation, the principal is obliged to reimburse the guarantor for the money paid to the beneficiary under an independent guarantee.

The limitation period for recourse obligations begins from the day of fulfillment of the main obligation (clause 3 of Article 200 of the Civil Code of the Russian Federation).

The procedure for submitting an application for expiration of the limitation period

The Plenum of the Supreme Court of the Russian Federation believes that a statement about the passage of the statute of limitations can be made in any form (written or oral) and at any stage of consideration of the case by the court of first instance or in the court of appeal, but only if it considers the case on the merits (Part 5 of Art. 330 Code of Civil Procedure of the Russian Federation, Part 6.1 of Article 268 of the Code of Arbitration Procedure of the Russian Federation). This is explained by the fact that the law does not establish any requirements for the procedure for filing an application for a statute of limitations (clause 11 of Resolution No. 43).

Arbitrage practice

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The defendant claimed the deadline was missed only when considering the case on appeal. The court rejected the defendant's arguments. The arbitrators indicated that, by virtue of Art. 196 of the 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. The limitation period is applied by the court only upon the application of a party to the dispute, which can be made before the decision is made. Meanwhile, in the court of first instance, the defendant did not declare the expiration of the limitation period, and the appeal did not proceed to consideration of the case on the merits (resolution of the Sixth Arbitration Court of Appeal dated October 8, 2015 No. 06AP-3318/2015 in case No. A73-4425/2015).

Break and suspension of the statute of limitations

The law establishes a list of circumstances when the plaintiff retains the right to judicial protection, even if the statutory limitation period has expired. This happens if the period is interrupted, suspended or the plaintiff has the right to restore it.

Suspension

Article 202 of the Civil Code of the Russian Federation contains an exhaustive list of cases when the limitation period is suspended. Among them is an attempt by the parties to resolve the dispute using an out-of-court procedure, the mandatory nature of which is established by law. Here are some examples:

• In cases of bringing to tax liability, an administrative procedure is provided - Art. 101.2 Tax Code of the Russian Federation;
• under the contract for the carriage of goods by sea, a claim procedure is provided (clause 2 of Article 407 of the Merchant Shipping Code of the Russian Federation);
• filing complaints and presenting claims when providing communication services are provided for in Art. 55 of the Federal Law of July 7, 2003 No. 126-FZ “On Communications”;
• in accordance with paragraph 1 of Art. 16.1 of the Federal Law of April 25, 2002 No. 40-FZ “On compulsory insurance of civil liability of vehicle owners”, before filing a claim, the victim is obliged to send an application to the insurer demanding insurance payment or direct compensation for losses;
• clause 1 art. 12 of Federal Law No. 87-FZ of June 30, 2003 “On Freight Forwarding Activities” provides for the client’s obligation to file a claim with the freight forwarder, etc., before going to court.

Since each person participating in the case must prove the circumstances to which he refers, the Plenum of the Supreme Court of the Russian Federation indicated that the plaintiff must prove the existence of circumstances indicating the suspension of the limitation period.

In accordance with paragraph 3 of Art. 202 of the Civil Code of the Russian Federation, the suspension of the statute of limitations occurs for the period of pre-trial settlement of the dispute, which is established by law. If there are no such provisions in the law, then the period is suspended for six months from the date of commencement of the relevant procedure. As soon as the period established by law ends, the limitation period will continue to run from the moment at which it stopped (clause 4 of Article 202 of the Civil Code of the Russian Federation).

Break

If a person admits a debt, the limitation period is interrupted and the period for it begins to be calculated anew (Article 203 of the Civil Code of the Russian Federation). This is how a break in the statute of limitations differs from its suspension.

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The rules on the break of the term (including for ten years) are imperative, i.e. mandatory for use. Therefore, at first glance, their application does not depend on the request of the party to the dispute, and the court can use them on its own initiative. However, the Plenum of the RF Supreme Court thinks differently: the plaintiff must prove the existence of circumstances indicating a break in the limitation period (clause 12 of Resolution No. 43).

The court gave examples of such actions, from which it is clear that recognition of the debt must be unambiguous and unambiguous. This is an obvious recognition of the requirements stated in the claim, a change in the contract by an authorized person, a request from the debtor to change the contract, a signed reconciliation report.

A simple response to a claim (from which recognition of the debt is not clear), agreement with part of the debt (even by paying it) does not indicate recognition (clause 20 of Resolution No. 43). Also, any inaction (for example, if the debtor did not challenge the payment document about the direct debit of funds) or silence does not indicate recognition of the debt (clause 23 of Resolution No. 43).

However, if payment of a debt has only one basis, previously the courts saw this as a reason to interrupt the statute of limitations.

Arbitrage practice

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A land lease agreement was concluded between the company and the city administration. After expiration, the contract was extended for an indefinite period. Rent continued to be paid.

In 2011, the parties signed an agreement to terminate the contract since 2006. Since that time, the same plot has been leased to the plaintiff under a newly concluded agreement with the legal successor of the administration. As a result, part of the rent under the first agreement was returned to the company. Since the administration refused to return the other part of the payment, the company filed a lawsuit to recover unjust enrichment from the administration.

The defendant pointed out that the plaintiff had missed the statute of limitations. The courts considered that actions indicating the recognition of a debt in order to interrupt the running of the limitation period may include:

• recognition of the claim;
• partial payment by the debtor of the principal debt, amounts of sanctions;
• partial recognition of the claim for payment of the principal debt (if the debt has only one basis);
• payment of interest on the principal debt;
• amendment of the contract by an authorized person, from which it follows that the debtor acknowledges the existence of a debt;
• the debtor’s request for such a change (for example, a deferment or installment plan);
• acceptance of collection order.

Considering that payment of part of the debt interrupted the statute of limitations, the courts of three instances upheld the claim (Resolution of the Federal Antimonopoly Service of the Ural District dated February 27, 2013 No. F09-63/13 in case No. A07-6761/2012).

Time limit for going to court

According to paragraph 1 of Art. 204 of the Civil Code of the Russian Federation, from the date of application to the court, the statute of limitations does not run throughout the entire time that judicial protection is being carried out (including when filing an application for a court order or applying to an arbitration court - clause 17 of Resolution No. 43).

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The moment of application is the day when the application is submitted by mail or submitted directly to the court (including through the court’s website).

The Plenum of the Supreme Court of the Russian Federation explained that this rule also applies to cases where other rules of law are subject to application than those referred to by the plaintiff, as well as when the plaintiff changes the method of defense (clause 14 of Resolution No. 43). This conclusion is based on Part 1 of Art. 39 Code of Civil Procedure of the Russian Federation and Part 1 of Art. 49 of the Arbitration Procedure Code of the Russian Federation, according to which, when considering a case in the first instance, the plaintiff has the right, before the adoption of a judicial act, to change the basis, subject of the claim or the amount of claims.

Moreover, such changes do not in any way affect the procedure for calculating the statute of limitations. It ceases to flow from the moment the plaintiff went to court, and not from the moment he changed his demands. This conclusion is based on Art. 199, 200 Civil Code of the Russian Federation. According to paragraph 1 of Art. 199 of the Civil Code of the Russian Federation, a claim for the protection of a violated right is accepted for consideration by the court regardless of the expiration of the limitation period. And in accordance with Art. 200 of the Civil Code of the Russian Federation, the limitation period begins from the day when the person learned or should have learned about the violation of his right.

If the plaintiff has extended the period of collection, due to which the size of the claims has increased, the limitation period stops not from the moment the claim is filed, but from the date of filing new claims (clause 14 of Resolution No. 43).

In accordance with paragraph 2 of Art. 204 of the Civil Code of the Russian Federation, if the court left the application without consideration, the limitation period continues in the general manner. The Plenum of the RF Armed Forces clarified that the period continues from the moment the relevant definition comes into force. The same rule also applies to cases of termination of proceedings in a case (for example, when the plaintiff abandoned the claim, a party to the case was liquidated, etc. - paragraph 2 of Article 220 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of Part 1 of Article 150 of the Code of Arbitration Procedure of the Russian Federation , paragraph 18 of Resolution No. 43).

If, after leaving the application without consideration, the unexpired part of the statute of limitations is less than six months, as a general rule it is extended to six months (clause 3 of Article 204 of the Civil Code of the Russian Federation). The Plenum of the RF Armed Forces applied the law by analogy, referring to paragraph 1 of Art. 6 of the Civil Code of the Russian Federation, and extended the general rule to extend the period to six months in cases of termination of judicial proceedings or cancellation of a court order.

Exceptions are situations where the claim was left without consideration on the grounds provided for in paragraph. 2, 4, 7, 8 tbsp. 222 Code of Civil Procedure of the Russian Federation, clauses 2, 7, 9, part 1, art. 148 of the Arbitration Procedure Code of the Russian Federation (clause 18 of Resolution No. 43), which directly depend on the plaintiff:

• the plaintiff did not comply with the mandatory pre-trial procedure for resolving the dispute;
• the statement of claim is not signed or signed by an unauthorized person;
• the plaintiff failed to appear at the court hearing again and did not file a motion to consider the case in his absence or to postpone the trial, and the defendant does not require consideration of the case on the merits;
• there is an agreement between the parties to submit the dispute to an arbitration court and the defendant, before the start of the consideration of the case on the merits, received an objection regarding the consideration and resolution of the dispute in court.

The law says nothing about cases when the court refuses to accept a claim, returns it, or leaves the application without progress. The court explained that in such situations the statute of limitations does not stop and runs its course. If the plaintiff eliminates the violations, the application is considered filed on the day of the initial application, from which the statute of limitations does not run (clause 17 of Resolution No. 43).

Limitation period for time payments and interest

Timely payments are monetary obligations divided into parts by agreement, in other words, periodic payments. For example, rent, interest on borrowed funds, etc. Typically, the total payment amount depends on the time of use of the services.

From the general meaning of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation concluded that for time-based payments, the limitation period begins in relation to each part separately. Therefore, the statute of limitations is calculated separately for each late payment (clause 24 of Resolution No. 43).

If the debtor acknowledged the principal debt, for example, paid it, this does not mean that he recognized the creditor’s additional demands for payment of interest (Articles 395 and 317.1 of the Civil Code of the Russian Federation), penalties (Article 330 of the Civil Code of the Russian Federation) or compensation for losses (Article 15 Civil Code of the Russian Federation). Hence the conclusion: if, in the case of recognition of the main debt, the limitation period is interrupted, then in relation to additional claims it continues to run (clause 25 of Resolution No. 43). Therefore, creditors should be more careful when filing claims.

In this case, the period for penalties or interest under Art. 395 of the Civil Code of the Russian Federation is calculated separately for each overdue payment.

The same applies to a break in the time limit when going to court. The limitation period for the main claim presented is stopped on the basis of clause 1 of Art. 204 Civil Code of the Russian Federation. But if the creditor does not immediately present additional demands, the period for them continues to run (clause 26 of Resolution No. 43). Here the court referred to Art. 207 Civil Code of the Russian Federation. It says that with the expiration of the period for the main claim, the period for additional claims (interest, penalties, pledge, guarantee, etc.), including those that arose after the start of the limitation period for the main claim, expires (clause 1 of Resolution No. 43).

But the Plenum of the RF Armed Forces made an exception to this rule in relation to a loan or credit agreement (clause 1 of Article 809 of the Civil Code of the Russian Federation). If, according to the agreement, interest on it must be paid later than the loan amount is repaid, the statute of limitations on such interest does not depend on the expiration of the statute of limitations on the principal amount and is calculated separately (but only if the interest was accrued before the loan repayment period).

Reinstating the statute of limitations

In accordance with Art. 205 of the Civil Code of the Russian Federation, in exceptional cases, the court may recognize a valid reason for missing the limitation period due to circumstances related to the personality of the plaintiff-citizen (for example, in the event of his serious illness), if he files a petition and provides the necessary evidence.

It turns out that companies do not have the right to restore the missed deadline on this basis. However, the court may refuse to apply the statute of limitations to the defendant if he behaves in bad faith. Most often, such refusals occur in bankruptcy cases (decision of the Supreme Arbitration Court of the Russian Federation dated December 13, 2012 No. VAS-299/12 in case No. A33-3111/2009) and in corporate conflicts (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 26, 2013 No. 12913/12 in case No. A27-15517/2011 and dated November 22, 2011 No. 17912/09 in case No. A54-5153/2008/C16).

Arbitrage practice

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The director of the company sold the real estate. The buyer resold them to a third party, who began renting them to the original seller. The shareholder of the closed joint-stock company filed a lawsuit to invalidate the contracts for the sale of real estate, citing the lack of approval of a major transaction and undervaluation of the price. The court found the director's actions to be an abuse of right. At the same time, the arbitrators refused to apply the statute of limitations to the defendant due to abuse (decision of the Supreme Arbitration Court of the Russian Federation dated July 29, 2013 in case No. A70-3210/2012).

Expiration of the limitation period

The expiration of the limitation period is an independent basis for refusal of a claim (paragraph 2, paragraph 2, article 199 of the Civil Code of the Russian Federation). If it is established that a party to the case has missed the statute of limitations, the court has the right to refuse to satisfy the claim only on these grounds, without examining other circumstances of the case (clause 15 of Resolution No. 43). To do this, the defendant must declare that this period has expired. Then the court will find out whether this is really so, and whether events have occurred that entail a suspension, interruption or restoration of the statute of limitations

The Plenum of the Supreme Court of the Russian Federation additionally noted the difference between the recognition of debt during the period of limitation and after its expiration. In both cases, the limitation period begins to run again, but in the second case - only if the confession is made in writing (clause 2 of article 206 of the Civil Code of the Russian Federation, clause 21 of Resolution No. 43).

Does a debt transfer agreement affect the statute of limitations? How to calculate it if the contract is valid retrospectively? When does registration of a controversial transaction in Rosreestr not mean that a person should have learned about a violation of his rights? These and other questions are answered by materials from a selection of cases in which the courts applied the Resolution of the Plenum of the Supreme Court dated September 29, 2015 No. 43 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period.”

About debts from periodic payments

In 2010, Solorent LLC, the owner of the premises in Moscow, promised with a letter of guarantee to the State Unitary Enterprise DEZ of the Basmanny District to pay the debts of the previous owner for the “utility” - 611,757 rubles. for 2008-2010. The obligation to repay this amount was also fixed in the contract of the parties, concluded at the same time, in 2010. However, no payment deadline was set.

Then the premises changed ownership again, and in 2014, insolvency proceedings were initiated against the company (A40-17394/2014; bankruptcy trustee - Maria Bulatova). In 2015, the bankrupt reminded Solorent about the old debt. The company refused to pay it, and the utility went to court (A40-138457/15). The defendant, of course, claimed that the statute of limitations had passed, but the Moscow Arbitration Court rejected this argument and collected the debt in full. The deadline for its payment is not specified in the contract, which means that the limitation period has not expired, the ASGM reasoned. 9 The Arbitration Court of Appeal agreed with this.

But the accumulated debt represents periodic payments. Therefore, the courts had to take into account the clarifications from paragraph 24 of the Plenum Resolution No. 43: if the debt arose under an agreement to pay for services in installments, then the statute of limitations must be calculated separately for each untransferred payment. The Moscow District Arbitration Court instructed the lower courts to take this rule into account and sent the case to new consideration.

Time machine for statute of limitations

But her ruling did not stand up in cassation: the Moscow District Court agreed with the first instance.

A teaspoon per hour: how to deal with legal interest

The clarifications of the Supreme Court helped to understand the case A56-89970/2015, in which the Siberian Coffee Company recovered 1.1 million rubles from the buyer “Okay”. “legal” interest for goods not paid for in 2012-2015. The defendant countered that some invoices were due more than three years before the date of filing the claim, so they would not be subject to a “penalty.” The AS of St. Petersburg and the Leningrad Region rejected these arguments and took into account the date of the overdue payment in relation to each day of delay. 13 The Arbitration Court of Appeal, on the contrary, listened to the defendant. Since the requirement to pay interest is additional in relation to the principal debt, the period is calculated from the date of delivery of the goods, taking into account the remaining terms of the contract (for example, installment payment), decided the board chaired by Zhanna Kolosova. She awarded the supplier only 327,443 rubles.

The AC of the North-Western District did not agree with this, taking the point of view of the first instance. The cassation cited paragraph 25 of the resolution of the Plenum No. 43, which prescribes the calculation of the terms for penalties (330 Civil Code) or “legal” interest (395 Civil Code) “for each late payment, which is determined in relation to each day of delay.” As a result, the Arbitration Court upheld the decision of the first instance - completely in favor of the supplier.

When registration with Rosreestr does not equal awareness

In case A39-6278/2015, the courts determined the limitation period based on the application of the Deputy Prosecutor General of Mordovia. In November 2015, he demanded that the land lease agreements that the administration of the Lyambirsky municipal district concluded with the Atemarskaya poultry farm in 2011 be invalidated. Local authorities handed over areas with artificial ponds to the poultry farm for fish farming. They were formed with the help of dams on the Amogra River, a tributary of the Volga. But residents of a nearby village complained of inconvenience: access to the reservoir was limited, and the water level in the wells had dropped. The prosecutor's office stood up for them and demanded that the lease be terminated. Since the poultry farm uses ponds from a tributary of the Volga, this is federal property, which means that the municipalities did not have the right to dispose of these plots, including renting them out for use for a fee, the department believed.

Atemarskaya did not recognize the claims and noted that the lease agreement was registered back in 2011, which means that the statute of limitations had expired. How to calculate it if the prosecutor’s office (or someone else) protects the rights of other persons, explains paragraph 5 of the resolution of the Plenum of the Supreme Court No. 43: the statute of limitations begins to run from the moment other persons learned (or should have known) that their the right is violated, and who is the defendant in the claim.

The prosecutor's office, in turn, assured that the deadline had not been missed. The plaintiff indicated that he was protecting the interests of Russia as the owner of reservoirs represented by the local Federal Property Management Agency. And it learned about the violations just in 2015 from a letter from the prosecutor.

The Arbitration Court of Mordovia took the side of the poultry farm. In 2011, Rosreestr included the agreement in the state register of real estate, which is an open and accessible source. It was then that the Federal Property Management Agency, as a conscientious and prudent owner, should have learned about the disposal of reservoirs, judge Marina Alekhina decided. As for the complaints of local residents, they will be examined by a court of general jurisdiction according to the rules of the Civil Procedure Code, she indicated. This decision was upheld on appeal.

But the AC of the Volga-Vyatka District did not agree with him. Indeed, the statute of limitations here is related to awareness, but at the same time, the Civil Code presumes that the participants in civil relations behave in good faith, noted the board chaired by Evgeniy Kislitsyn. The local Federal Property Management Agency manages the lands, rather than identifying violations. Therefore, there is no certainty that the department could have learned about the agreement after its registration in Rosreestr. In this case, the cassation continued, there is no evidence that the Federal Property Management Agency inspected the disputed areas in 2011 or could have known about the violations. At the same time, the prosecutor’s office informed the Federal Property Management Agency about violations in 2015, which means that the statute of limitations has not been missed, the Supreme Court’s AS summed up. Now the case is being reconsidered by the Autonomous Court of the Mordovian Region.

Whether the transfer of debt affects the limitation period was decided by the courts in case A56-62530/2015. In it, Green Light LLC collected unpaid 6 million rubles from the company Gruzomobil Peter. for loans from 2011 to early 2012. The debtor agreed to answer for them at the end of 2012, when he signed agreements on the transfer of debt. But in 2015, when Green Light demanded money through the court, the Defendant declared that the three-year statute of limitations had passed. The plaintiff objected that in the agreement on the transfer of debt at the end of 2012, Gruzomobil Peter actually admitted the debt, which means a break in the limitation period (Article 203 of the Civil Code). The latter point of view turned out to be close to the AS of St. Petersburg and the Leningrad Region, which satisfied the requirements of the “Green Light” in full.

The AC of the North-Western District had a different opinion. He listened to the defendant, who insisted that the statute of limitations had expired because the transfer of debt could not interrupt it. The cassation found confirmation of this thesis in paragraph 6 of Resolution No. 43. It states that succession (inheritance, assignment of rights, and so on) does not affect the beginning of the limitation period. This means that it must be calculated according to general rules, without taking into account breaks. With these instructions, the Arbitration Court sent the case for a new trial.