INŠTITÚT PREMLČANIA A POVINNOSŤ SÚDU EX OFFICIO PRIHLIADAŤ NA PREMLČANIE
Concept of prescription and the obligation of the court Ex officio to take into account prescription
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The article addresses the amendment of the Act No. 250/2007 Coll. on consumer protection, implemented by the Act No. 102/2014 Coll. (valid from 1 May 2014), which laid down the ex officio obligation of the body deciding on claims from consumer contracts to take into account prescription, even if the consumer does not invoke prescription. This regulation faces many issues, not only in the area of application of law, but also in the area of legal theory. The article addresses some of these issues. The ex officio obligation of the court to take into account prescription is contrary to several legal principles, such as the principle vigilantibus leges sunt scriptae. Prescription is basically a sanction for violation of this principle. Due to the new legal act this sanction only applies to the creditor. The debtor is not obliged to observe this principle. It is also contrary to the principle of the autonomy of the will of private law subjects. In our law prescription is conceived as the concept of substantive law, which is fully in hands of the debtor who may decide whether he will or will not invoke prescription. The new legal act removes the basic difference between prescription and preclusion. This regulation of consumer protection also influences the procedural position of the parties, which is modified against the situation before the adoption of the amendment. It concerns the principle of equality of the parties to the proceedings as well as the instruction obligation of the court. There are also problems concerning the temporal applicability of the amendment.
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