Article title Civil-Legal Protection of Possession by an Owner
Authors

Doctor of Law, Associate Professor, Professor Law School of Taras Shevchenko National University of Kyiv (Kyiv, Ukraine) ORCID ID:  http://orcid.org/0000-0002-4525-2805 Researcher ID: http://www.researcherid.com/rid/AAF-4978-2021georgkhar@gmail.com

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 5/2021
Сторінки [135-148]
Annotation

The article reveals the peculiarities of protection of possession by an owner under the civil legislation of Ukraine.

The purpose of the article is to research the features of protection of possession by an owner through the prism of the doctrinal transformation of the legal concept of the nature of possession in civil law.

It is noted that the protection of possession by an owner, as well as in Roman law, can take place in Ukraine according to the rules of a possessory or petitory protection of possession. Taking into account the fact that possessory protection is more convenient for an owner, because proving the fact of possession of property is easier than proving a person’s rights to the property (petitory protection), it is reasonable to conclude that the possessing owner may legitimately use the presumption of Part 3 of Art. 397 of the Civil Code of Ukraine, despite the fact that it is placed in Chapter 31 of Civil Code of Ukraine “Right of Possession of another’s Property”. Accordingly, possessory protection of possession for a non-possessing owner is possible through the prism of the provision of paragraph 2 of Part 3 of Art. 344 of the Civil Code of Ukraine.

It is recalled that the protection of possession by a non-possessing owner is based on the concept of limited vindication in Ukraine. As a result, there is a problem of competition of lawsuits in the judicial practice because of the growing number of objects for reclamation by lawsuits from unjust enrichment which do not know the restrictions established for vindication of things. Taking into account the above, the correctness of the Supreme Court’s position on the possibility of subsidiary application of an unjust enrichment claim to vindication is questioned, especially in view of the fact that this approach is directed to the interests of the state, which cannot claim its former property through vindication and tries to do it by lawsuits from unjust enrichment. It is emphasized that previously there was no competition between a lawsuit from unjust enrichment and a vindicatory lawsuit, because according to the classical doctrinal approach of civil law, lawsuits from unjust enrichment concerned only generic things, that’s why they were a compensatory character. On thecontrary, vindicatory lawsuits had a restorative function in the protection of possession and covered only individually identified things.

It is substantiated that it is impossible to vindicate property rights in comparison with things. This is because property rights have a possibility to be in civil relations in two capacities: as a right and an object of rights. In the case of inclusion in the civil-law transactions, property rights are inevitably converted from the object of right into the right itself (i.e. assigned to the person) when a person acquires them. Therefore, the appropriate way for protection of property rights should be considered as a recognition of a right, but not a vindication.

 

Keywords possession; possessory protection of possession; petitory protection of possession; vindication; lawsuit from unjust enrichment; restitution
References

Bibliography

Authored books and translated books

1. Gambarov Ju, Grazhdanskoe pravo. Chast’ osobennaja. Veshhnoe parvo (1894–1995) (in Russian). 2. Mejer D, Russkoe grazhdanskoe pravo (N Tiblen i komp 1864) (in Russian).

3. Puhta G, Kurs rimskogo grazhdanskogo prava, t 1 (Sovremennye Izvestija 1874) (in Russian).

 

Journal articles

 4. Bezsmertna N, ‘Publichnist yak odyn z pryntsypiv rechovykh prav na nerukhome maino (2005) 6 Pravo Ukrainy (in Ukrainian).

 

Conference papers

5. Kharytonov Ye, Kharytonova O, ‘Tsyvilno-pravovyi zakhyst prav vlasnosti: perehliad paradyhmy’ v Problemy tsyvilnoho prava ta protsesu: Naukovo-praktychna konferentsiia, prysviachena svitlii pam’iati O. A. Pushkina (KhNUVS 2016) (in Ukrainian).

 6. Spasibo-Fateeva I, ‘Nabljudenija za tendencijami v grazhdanskom prave’ v Problemy tsyvilnoho prava ta protsesu: naukovo-praktychna konferentsiia, prysviachena svitlii pam’iati O. A. Pushkina (KhNUVS 2016) (in Russian).

 

Thesis

7. Batchaev Ju, ‘Zashhita vladenija v rossijskom grazhdanskom prave’ (dis kand jurid nauk, 2005) (in Russian).