ПРАВО ПОСТІЙНОГО КОРИСТУВАННЯ ЗЕМЕЛЬНИМИ ДІЛЯНКАМИ В УКРАЇНІ: ПРОБЛЕМИ ЗАКОНОДАВЧОГО ЗАБЕЗПЕЧЕННЯ ТА ПРАКТИКИ ЗАСТОСУВАННЯ

Abstract

The right to permanent use of land plots in Ukraine is characterized as one of the main legal forms of land use. It is emphasized that the legislative consolidation of modern, market rights to land did not lead to a complete rejection of all Soviet forms of land use, including the right to permanent use of land plots. The genesis of legal regulation of the land plots use on the ground of the right to permanent use in the Ukrainian land legislation is clarified, on the basis of what a conclusion concerning the tendency to abolishment of the institution of the right to permanent land use in the current land legislation is made. The main advantages and disadvantages of the right to permanent use of land plots as a legal form of land use in Ukraine are determined. It is established that its advantages over other legal forms of land use such as perpetuity, free acquisition and some others, determine its long-term «survival» in the land legislation of Ukraine. It is emphasized that the most significant shortcoming of the right to permanent use of land plots is the inability of the disposal of land plots by the subjects of this right. The current Land Code of Ukraine significantly limited the scope of application and the range of subjects of the right to permanent use of land plots. At the same time, persons who had received this right earlier, but did not own it in accordance with the Land Code, had to reregistrate it to the right of ownership or to the right of lease. However, the Constitutional Court of Ukraine recognized this obligation as unconstitutional. Different types of land disputes that arise in the field of implementation of the right to permanent use of land are analyzed. The issue of the transfer of the right to permanent use of land plots in the order of legal succession is the most complicated hereby. It is emphasized that the right to permanent use of land plots should be transferred to legal successors in the process of their reorganization. It is defined that in practice there are numerous cases of abuse of the right to permanent use of land plots granted to state enterprises and research institutions. Most often, in such cases, the agreements on joint cultivation of land or on joint activity are concluded between permanent users and persons interested in the use of their land. The conclusion of such contracts is nothing more than attempts to circumvent the requirements of the law and a hidden lease. The conclusion of such contracts, the constant expansion of the range of subjects of the right of permanent use, the free transfer of land for permanent use indicate to serious problems in the field of application of the right to permanent use of land plots. The proposal to abolish the institution of the right to permanent use of land plots, replacing it with the right of operative management or economic management, is substantiated. The draft law on the abolition of the institute of the right of permanent land use is analyzed, its main content, positive and negative aspects are determined. It is concluded that replacing the right to permanent use of land plots with other land use titles will make it possible to use land more efficiently by economic entities, to solve other problems in the field of land use with the right to their permanent use.