Officialmaksimens betydning for suspension af forældelse

Abstract

This thesis investigates the significance of the inquisitorial system in regard to the suspension of limitation. Initially, the thesis examines previous legislation concerning the suspension of limitation, followed by analysis of the current legislation. There exists both an absolute and a relative limitation period. The relative limitation period can be suspended until the point, at which the creditor either knew, or ought to have known about their claim. The suspension rule existed under the previous legislation as well, and no substantive changes have been intended with the new legislation. On this basis the previous legislation can be used to illuminate the current state of law. Subsequently, the significance of the inquisitorial system is examined through case law and statements from the ombudsman. The examination reveals that the inquisitorial system necessitates that the administrative authority is obliged to investigate the facts of a case sufficiently in order to make a valid decision. Determining when further investigation is required can be challenging, as the administrative authority should not expend resources on unnecessary disclosure beyond what is required in order to make a valid decision. Ultimately, the decision resides with the administrative authority. Following this part of the thesis, case law concerning the suspension of limitation in tax and duty areas are examined in order to deduce which circumstances can lead to the termination of suspension regarding claims originating from the tax authorities. It emerges, that suspension generally terminates only when sufficient information is available for a correct tax assessment. Suspension is liable to terminate earlier, only if there is a specific reason for further investigation, and if the tax authorities fail to do so. Such reasons may include internal guidelines or instructions regarding the processing of tax matters or the inspection of the reported tax information. If the tax authorities neglect this inspection, suspension of limitation is terminated, when the court deems that the tax authorities ought to have investigated the matter. Furthermore, case law concerning the suspension of limitation in environmental areas are examined in order to deduce which circumstances can lead to the termination of suspension regarding claims originating from the environmental authorities. The critical point of this assessment is when the environmental authorities ought to have known, that there existed a reasonable need for preventative measures. The Supreme Court have been cautious about establishing precisely when this occurs, but generally, it requires a balance between the necessity and the extent of the preventative measures against economic considerations typical in public administrative practices. Lastly, the findings from both legal areas are synthesized. It is inferred that in both areas, the inquisitorial system does not inherently lead to a stricter assessment of the diligence of the authorities regarding the assessment of whether they ought to have known of the claim, in relation to termination of suspension of limitation. By contrast, specific circumstances may necessitate authorities to conduct further investigations to avoid termination of the suspension of limitation. This fundamentally aligns with the assessment of whether the ordinary creditor ought to have known of his claim, since the creditor must also investigate the existence of a potential claim, in order to avoid termination of the suspension of limitation. The thesis concludes that the inquisitorial system plays a limited role in the assessment of diligence of the administrative authorities in regard to the suspension of limitation. The inquisitorial system does not manifest in at stricter assessment of the diligence of the administrative authorities, but the assessment is rather comparable to that applied to a normal creditor.

A master thesis from Aalborg University

Officialmaksimens betydning for suspension af forældelse

[The significance of the inquisitorial system in regard to the suspension of limitation]