Commentary to article 177. The concept of limitation period of the Civil Code of the Republic of Kazakhstan
This article states that the statute of limitations is a period of time, that is, a type of time limit. As stipulated in Article 172 of the Civil Code, the term can be determined in three ways: specifying a calendar date, an event that must inevitably occur, or setting a time period. It is in this latter sense that the statute of limitations represents a certain period of time.
The statute of limitations is a temporary limitation on the judicial satisfaction of a claim, but does not perform the function of protecting a violated right. If the validity of the claim proves to be insufficient, the claim may be dismissed despite the fact that the statute of limitations on the claim has not expired yet.
The limitation period is associated with a violation of not only the subjective right of a person, but also the requirements of the current legal norm. In view of these circumstances, in addition to the person whose right has been violated, the statute of limitations specifies a legally protected interest and does not emphasize the function of the statute of limitations as a time limit for protecting a person's right.
The statute of limitations applies not only to claims made by the person whose right has been violated. A claim may be filed by both the directly interested person and other persons in accordance with the civil procedure legislation. Therefore, in this definition there is no indication of the subject of the claim, which was contained in the previously existing Civil Code of the Kazakh SSR when disclosing the concept of limitation period as a time limit for defending a claim by a person whose right has been violated (art.75).
The statute of limitations should not be confused with the statute of limitations provided for in Article 240 of the Civil Code. The following differences can be noted between them:
a) the statute of limitations is established in order to protect a right or legally protected interest in case of violation, and the statute of limitations is not related to the offense.;
b) the statute of limitations is applied only by the court, and the statute of limitations may serve as the basis for the emergence of ownership rights even without a court decision.
The statute of limitations is provided for in addition to the Civil Code in a number of other legislative acts: in Chapter 3 of the KBS, in Article 148 of the Decree on Taxes.
Article 12 of the KBS indicates that when applying the statute of limitations, the court is guided by the rules provided for by the Civil Code. It seems that the general provisions of civil legislation on the procedure for applying, calculating the limitation period, and accepting a statement of claim, regardless of the expiration of the limitation period, suspension, interruption, and restoration of the limitation period, apply to all cases of the application of the limitation period, without regard to the industry affiliation of the norms that provide for the limitation period.
The rules of limitation are mandatory. Both general and special limitation periods are established by law and cannot be the subject of an agreement between the parties. This implies that it is unacceptable, by agreement of the parties, to extend or shorten the statute of limitations. The parties also have no right to change the procedure for calculating the limitation period specified in the law (for example, by mutual agreement, to time the beginning of the limitation period to a moment other than that specified in art. 180 of the Civil Code).
The agreement of the parties to change the statute of limitations or the procedure for calculating them is invalid. If such an agreement is concluded, the court should apply not the terms of the agreement, but the rules of the law.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
