Kritična analiza zastaranja in prekluzije v zasebnem pravu
A critical analysis of prescription and cut-off in private law : doktorska naloga

slovenian

doktorska dela

2022

access to court   comparative law   cut-off periods   discovery rule   extinctive prescription   limitation of acts   limitation periods   private law   right to fair trial   temporal limitation of warranty claims

Univerza v Ljubljani, Pravna fakulteta
(Obvezni izvod spletne publikacije)

Limitation of acts (extinctive prescription) in private law regulates the effect of lapse of time on legal relationships and requires careful and thoughtful weighing of interest of the parties of the legal relationship as well as public interests. Historically, prescription was focused on the interests of the debtor and public interests. Today, however, the interests of the creditor are increasingly gaining importance as a consequence of the human rights discourse being broadened to private law. Namely, prescription can affect creditor's constitutional and Convention right to a fair trial. A modern prescription model, based on the forementioned postulates, is enshrined in several model rules for private law and is slowly making its way into national laws. Its fundamental features are shortening of the general limitation period, discovery of claim rule governing the start of the limitation period, decrease in the number of special limitation periods, a revision of the rules governing suspension of the limitation period and enabling greater party autonomy in prescription matters. The doctoral thesis closely examines and critically assesses prescription legislation currently in force in Slovenia. It looks into its historical development and provides a detailed comparative legal analysis based on international model rules, German, Austrian and Swiss legislation. In analysing certain conceptual problems, it also takes into account other European legal regimes and jurisprudence of the ECtHR and CJEU. It is concluded that prescription legislation in the former Yugoslavia was relatively advanced at the time and prevented significant difficulties; however, deficiencies have become apparent by now that could be remedied by incorporating modern guidelines on prescription into national legislation. The thesis also delves into the special set of rules on cut-off periods and examines them from historical and comparative perspective. In particular, it draws attention to the constitutionally problematic clause in the Slovenian Obligations Act which precludes the possibility of analogous applicability of the rules on prescription for cut-off periods. Some cut-off periods are particularly controversial (such as periods for warranty claims) as they are not compatible with the purpose of the cut-off periods.

15.05.2023