Who is writing the application for the limitation period? Are there any additional conditions besides the written statement of my request? Does the law establish additional conditions for reference to prescription? We will talk about all this later in the article.
Limitations nuances
The laws establish the right of citizens to appeal to court. And they also indicate the time limits for submitting an application. Normative acts establish different limitation periods. A period of 3 years is considered standard, but there are periods of varying lengths.
Limitations on terms are prescribed only in laws, for example, in the Civil Code - these are points affecting the rights of the parties to the contract, insurance, transportation, etc.
In judicial practice, preventive sentences are distinguished. Their peculiarity is the impossibility of recovery, and it does not matter why time was lost. If the statute of limitations is missed, in a typical situation the defendant can already file a statement on the protection of his rights.
Participants in a legal relationship cannot change the rules for the flow of time or their duration by adopting an agreement.
Features of the trial
Do not confuse the limitation of actions and the omission of procedural deadlines. If a request for reinstatement has not been received, the judge will automatically apply the consequences in accordance with the law.
The application for the application of the passage of the limitation period lies solely in the area of competence of the defendant. The judge has no right to refer to him on his own initiative. If the relevant application has not been submitted by an authorized party, the judge shall consider the case and make a decision in the usual manner.
Lack of knowledge, illiteracy, health status do not remove the prohibitions imposed on the court regarding the communication of this information.
If one of the parties in a lawsuit or in a meeting raised this issue, then the judge has an obligation to invite the parties to provide additional arguments and evidence on this point.
How much time does the defendant have
The application for the application of the limitation period shall be sent to the judge during the entire time of the process - until the moment of removal to the deliberation room. The law gives the right to repeatedly indicate a missed deadline during the trial.
If the application is made later
If for some reason the defendant did not make the request, the right of reference to the statute of limitations is lost when considering the case in subsequent instances. The exception is cases where applications for the application of the passage of the limitation period were unlawfully ignored by a judge of the first instance.
Application in different areas of life
Calculation of time is made according to a whole set of rules, and the judge, having received the application, is obliged to check it. In some cases, it’s easy to make calculations. Where systematic payments took place, calculations are made for each of them. A striking example is utilities. A statement on the application of the limitation period applies to each of the payments for which claims are made.
In practice, companies issue invoices in full, almost no one is limited to 3 years. If the defendant is aware of his rights, then judges will automatically refuse according to the requirements. However, this is not enough. And citizens are sometimes forced to file individual complaints and lawsuits against the company so that the debts are not entered into debts that the court declared insolvent.
If the company has disabled or limited the provision of services, the court will help in case of readiness for a long wait.
Do I write a letter
The participants in the process have the right to declare their requests orally and in writing. The law does not give prescriptions regarding their execution. On the other hand, the statement of the defendant on the application of the statute of limitations passed to the judge on paper eliminates additional risks and troubles.
The fact is that some phrases and remarks are not recorded in the protocol, and the only way to protect yourself is to fix everything on paper. And keep a copy with the acceptance mark. In this case, it will be much more difficult for a judge to ignore a document than an oral request. It is useful for people who do not have skills in writing legal documents to resort to a sample application for the application of the limitation period.
How to write a statement
There is nothing complicated about it. The document must indicate:
- name of court or court number;
- information about the applicant, his procedural status (place of residence or location of the organization);
- case number;
- the essence of the statement (who addressed whom with whom);
- grounds for applying Article 199 CC, a reference to dates as confirmation of a missed deadline;
- a request to apply a period of limitation in the case;
- signature and filing date.
Samples of the application for the limitation period look different.
If a court order is presented
It is issued on the basis of an application and a package of documents. The problem is to consider without the participation of a second party. And, therefore, the statement of the defendant on the application of the limitation period is simply transferred to no one.
It remains only in time to send the judge a request to cancel the order. The second side will then file a lawsuit. And already in the framework of a full-fledged trial, there is a chance to make a statement on the application of the limitation period.
Finally
One of the reasons for rejection of a claim in court is the omission of the limitation period. The defendant must declare it. The judge has no right to raise this issue at will.
If there have been periodic payments, then the statute of limitations is calculated for each of them. The judge does not automatically apply the rules, but checks all the arguments of the applicant. It is advisable to submit it in a letter so that the plaintiff does not refer to the absence of a corresponding mark in the minutes of the trial hearing.