Prescription and expiration: differences and deadlines

prescripcion y caducidad

 

How are prescription and expiration different?

 

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CONCEPT

Prescription Concept

In the legal field, the term prescription that legal figure that allows, for the course of a legally established time, factual or legal situations are consolidated, dying out or being acquired. Can be interrupted.

Namely, there are two types of prescription: the extintiva and acquisitive or usucapion.

The extinctive or liberatory prescription supposes that the legally permitted action is extinguished by allowing the established time to elapse without exercising it. It also implies the release of obligations when the time established by the Law is met.. It is known as a negative prescription.

The acquisitive prescription or usucapion It is one of the modes recognized in our legal system of acquisition of property and other real rights. It is acquired through peaceful and uninterrupted possession for a certain time. Also known as a positive prescription.

Article 1930 CCivil establishes in this sense that "By prescription are acquired, in the manner and with the conditions laid down in the law, the ownership and other real rights.

También they become extinct in the same way by prescription, rights and actions, of whatever class they are. "

Expiry concept

For his part, the expiration It is another legal figure recognized in our legal system by doctrinal and jurisprudential construction. It has been defined as an extinction mode of a right due to the passage of time established in the Law or by the will of individuals. In this case, In the expiration period, both the beginning and the end of the right are determined, because the term, in this case, is not interrupted. After the deadline, the right and the action are automatically extinguished.

La STS 755/2012, of 30 November 2012 states "Expiration is a concept born at the beginning of the 20th century in German doctrine and from it it passed to monographic studies in Spain and decades later, to all doctrine; just as the sentence of 12 February 1996 , This concept entered the jurisprudence from the judgment of 30 April 1940 , which says that it generates the decline of law automatically or, as the one says 12 June 1997, mode of extinction of a right by the mere passage of time or, the of 10 July 1999, term where it expires by the course of the time indicated to exercise an action. Namely, conclusion, It is the mode of extinction of the right by the mere passage of time. This expiring right is extinguished retroactively, As if it had never existed."

prescription and expiration

CHARACTERISTICS

Prescription Features

The prescription, either acquisitive or extinct, is characterized because needs time to elapse to be effective.

How come differentiating characteristics between the acquisitive or extinctive prescription, we have the following:

– Purchasing prescription or usucapion:

  • Has a positive effect.
  • It is related to possession.
  • Its objective is focused on the acquisition of the domain by possession as owner for a certain time, legally established. This objective is based on the inactivity of the owner of the real right, that you have allowed a third party to acquire it through continued possession.
  • It is only applicable to real rights.
  • Possession, to be acquisitive, it must be continued.
  • Legal traffic security: that the holder becomes the owner of the right, being recognized as such.

– Extinctive prescription:

  • It has a negative effect.
  • It only applies to personal credit rights.
  • Its objective is focused on the extinction of the action by the creditor. Namely, the actions are extinguished due to inactivity of the creditor and the lapse of the legally established time.

Expiry Characteristics

  • Its objective is focused on giving security to legal traffic.
  • Preclusive period, since only one act can be performed that is effective. If you do not exercise within the established period, as time passes, the right declines automatically.
  • It can be appreciated ex officio by the court or tribunal.
  • The expiration period sets the beginning and end of the exercise of the right. Time interruption is not supported. The simple passage of time causes expiration.
  • It has to do with optional rights.
  • It is inalienable.

Differences between prescription and expiration

prescription and expiration

 

Civil terms of prescription and expiration: Calculation

Shares subject to expiration

caducidad 1

caducidad 2

Actions subject to limitation period

prescripcion 1

prescription 2

 

 

 

Calculation of terms

In the case of prescription, Article 1969 CCivil states that "The time for the prescription of all kinds of actions, when there is no special provision that otherwise determines, it will be counted from the day they were able to exercise. "

On expiration, it has been the Supreme Court that has ratified the “dies a quo” in its jurisprudence (ATS 11/09/2019), establishing that "The computation of the term of exercise of the action […], You can not begin to run at least until it has or can be full and complete knowledge of the cause that justifies the exercise of the action. […] no puede privarse de la acción a quien no ha podido ejercitarla por causa que no le es imputable, como es el desconocimiento de los elementos determinantes de la existencia del error en el consentimiento. […] in complex contractual relationships, […] the consummation of the contract, […] it cannot be fixed before the client has been aware of the existence of said error or fraud. "

Interruption of deadlines: requirements

Prescription

Article 1973 CCivil expresses that "The prescription of actions it is interrupted by its exercise before the Courts, by extrajudicial claim of the creditor and any act of recognition of the debt by the debtor. ",,es,To this the court adds,,es,that criterion jurisprudential,,es,It is not exempted by reason of the result that the complaint had,,es,or the number and importance of the actions to be undertaken in the criminal proceedings because of it,,es,simply,,es,the filing of the complaint involves also exercise civil action,,es,the interruption of the limitation period,,es,In terms of court,,es,"Since the complaint is brought criminal proceedings,,es,criminal action is now "pending" and the criminal proceedings 'promoted',,es,the Supreme Court upheld the appeal brought by D,,es

Expiration

jurisprudencialmente, it has been established that the expiration does not support any kind of interruption. The shares and rights expire with the expiration period itself.

Expiration and prescription periods during the Alarm State: breve reseña

Through the Royal Decree 463/2020, of 14 March, declaring the state of alarm for the management of the health crisis situation caused by COVID-19, The statute of limitations and expiration dates not completed on the date of entry into force of this Royal Decree were suspended, as well as those that began during the term of the same.

Namely, the terms of all actions and rights were suspended during the period of validity of the state of alarm, as well as during the extensions that were adopted.

However, This suspension of terms did not affect the terms of fulfillment of contracts, unless it has been legally established.

What does the suspension of the limitation and expiration periods mean? This suspension means that all the deadlines are "frozen in time" since the state of alarm was declared.. These periods are resumed when the alarm state disappears.

The State Bar, Through the Consultation of 20 March 2020, clarified that the suspension of the deadlines meant that, once the alarm state ceases, as well as its extensions, they would count again for the time remaining at the time they were suspended. There was no break in deadlines, suspension only.

For his part, the Royal decree law 16/2020, of 28 April, of procedural and organizational measures to face COVID-19 in the field of the Administration of Justice, established that the terms would be restarted after lifting their suspension, so the terms would be re-computed from the beginning.

Penalty prescription

The Criminal Code, in his article 132.1, establishes that crimes "They will be computed from the day the punishable offense was committed. In cases of continuing crime, permanent offense, as well as in the infractions that require habituality, such terms will be computed, respectively, since the day of the last offense, since the illegal situation was eliminated or since the conduct ceased. "

The crimes prescribe (art. 131 CP):

  • 20 years old: when the maximum penalty for the crime is imprisonment of fifteen or more years.
  • 15 years old: when the maximum penalty established by law is disqualification for more than ten years, or imprisonment for more than ten and less than fifteen years.
  • 10 years old: when the maximum penalty indicated by law is imprisonment or disqualification for more than five years and does not exceed ten.
  • 5 years old: the other crimes, except minor crimes and crimes of libel and slander, that they prescribe per year.
  • When the penalty prescribed by law is compounded, it will be, for the application of the rules included in this article, to the one that requires more time for the prescription.
  • They do not prescribe in any case: crimes against humanity and genocide and crimes against persons and property protected in the event of armed conflict, except for those punished in the article 614.
  • Nor will they prescribe the crimes of terrorism, if they had caused the death of a person.
  • In the event of bankruptcy of infractions or related infractions, the limitation period will be the one corresponding to the most serious crime.

For his part, the penalties imposed by final judgment prescribe (art. 133 CP):

  • 30 years old: those in prison for more than 20 years old.
  • 25 years old: those of prison 15 or more years without exceeding 20.
  • 20 years old: those of disqualification for more than 10 years and those in prison for more than 10 and less than 15.
  • 15 years old: those of disqualification for more than six years and not exceeding 10, and those in prison for more than five years and not exceeding 10.
  • 10 years old: the remaining serious penalties.
  • 5 years old: less serious penalties.
  • 1 year: light penalties.
  • The penalties imposed for crimes against humanity and genocide and for crimes against persons and property protected in the event of armed conflict, except for those punished in the article 614, will not prescribe in any case.
  • Nor will the penalties imposed for crimes of terrorism prescribe., if they had caused the death of a person.

Administrative prescription

In administrative law, prescription is also regulated. Article 1964.2 CCivil is applied on a supplementary basis in the case of the execution of administrative acts, so the term will be five years. It will also be five years for those claims that are based on the breach of urban agreements.

In the case of requests for initiation in the proceedings of patrimonial responsibility, Article 67 Act 39/2015, establishes that the right to claim shall prescribe one year after the event or act that gives rise to compensation or its harmful effect is manifested.

Last, Article 30 Act 40/2015, set for Infringements and sanctions administrative that "Infractions and sanctions shall prescribe according to the provisions of the laws that establish them. If they do not set limitation periods, very serious infractions will prescribe after three years, the serious at two years and mild at six months; the sanctions imposed by very serious offenses will prescribe after three years, those imposed by serious offenses at two years and those imposed by minor offenses per year.”

Labor prescription

The Workers' Statute establishes, Article 59.1 that "The actions derived from the employment contract that do not have a designated deadline special will prescribe one year after their termination. "

In the case of infractions and fouls, Article 60 reflects that:

“1. The offenses committed by the businessman will prescribe in accordance with the provisions of the revised text of the Law on Infractions and Sanctions in the Social Order, approved by Royal Decree 5/2000, of 4 of August.

2. Regarding the workers, minor offenses will prescribe after ten days; the grave ones, a los twenty days, and very serious, a los sixty days from the date the company learned of its commission and, in any case, six months after committing.

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