Zemska Limitation of Action: Certain Issues of Theory and Practice

Abstract

The history of law should be viewed not only within the context of the study on the birth of law being one of the social regulators, its emergence and evolution of its certain institutions, but also as an instrument of thorough understanding of legal forms recepted from Roman Law. Certain forms of these include usucapio – limitation of action introduced to Russian Imperial legislation by Article 301 of the Legislation Code of 1832.Ukraine can view the doctrine developed by legal scholars of those times as well as court practice on these issues as part of its own history as it used to be a part of the Russian Empire, where (except for Chernihiv and Poltava regions) Russian Imperial legislation was fully in force. Russian Imperial legal scholarship has adopted the approach applied by Roman law, including usucapio and praescriptio. However, the issue of usucapio existence in legislation acts of the Moscow State as a separate institute before 1832 has provided grounds for discussions.Similarly, the legal essence of the usucapio institute has also provided grounds for scholarly discussions on philosophic grounds regarding the impact of limiting legislation on the application of the limitation institute whether limitation should be similarly the ground for losing or acquiring rights, or regarding the conditions when the appropriate limitations may be applied.The analysis of past scholarly concepts provides possibilities to develop a full picture. Nevertheless, this picture is not without homogeneity of thoughts. The author takes the approach that the usucapio institute in Russian Imperial legislation has appeared and developed for assuring the stability of civil relations. Regardless of the division of providing evidence, the existence of the actual possession by the actual possessor of the mortgage after the 10-year term, the new possessor has been recognized and registered the property rights within time limitation if the conditions prescribed in the law are actually fulfilled. The interest in theoretical development in the limitation issue and the amount of the court practice provides evidence that it was claimed by the society.The definition of the Zemska time limitation has been changing gradually, and it can generally be viewed as calm, non-discussional, and continuous possession within the term developed by the law, in terms of “property”. The law of those times did not demand a fair possession conditions for acquiring the rights on limitation grounds, however this approach has been criticized by scholars.Generally, the author has selected the panoramic approach of constructing her research by paying attention to discussional issues, as well as the issues being of interest nowadays. Specific focus is made on actual inaction of titular proprietors of mortgage as the condition for loss of the right on limitation grounds and non-act possession. The actuality of stability of civil relations remains the same nowadays as it was in the past.