THE EFFECT OF PRESCRIPTION ON ENFORCEMENT PROCEEDINGS

Аннотация

Time is a legal fact capable of exerting a significant influence upon legal

relations. The influence of time (arising independently of human will and

directly on the basis of law) can be either creative or destructive. Namely,

the lapse of time can create a subjective right, modify or end it. One of

the legal institutions in which the influence of time on subjective right

comes to full expression is the prescription (statute of limitation)

regulated by the provisions of the Law on Obligation Relations in Serbian

law. It stipulates that the right to performance of an obligation is subject

to prescription; this right ceases to exist by the expiration of statutory

limitation period (prescription) in which the creditor could request

performance. The debtor may perform his obligation voluntarily or

forcefully, in the enforcement proceedings initiated on the proposal of the

creditor and, only exceptionally, ex officio in cases prescribed by law. In

this paper, the author analyses the influence of periods of prescription on

enforcement proceedings and the possibility to suspend such proceedings

due to limitation period (prescription). Two hypothetical situations are

analysed. One is the situation of the suspension of enforcement

proceedings due to the fact that the period of prescription has expired

before the commencement of enforcement. We see this situation as

undisputed. The second situation is the suspension of enforcement

proceedings because the limitation period occurred during such

proceedings. It seems to us that this situation can provoke some doubts;

therefore, we raise the question whether prescription is even possible in

enforcement proceedings.