О специфике критериального подхода к пониманию недвижимого имущества в гражданском праве

Abstract

The article is devoted to the criterial approach to the understanding of immovable property in civil law. It is noted that at normative fixation of those or other concepts necessary for legal regulation, the criterial method is widely used, which consists in formulating a set of mandatory features or requirements, only the simultaneous presence of which indicates the presence of the relevant phenomenon. When constructing the concept and legal regime of immovable property in the civil legislation, a special complicated legal technique is used. Behind the seemingly criterial way of its construction there is something else, namely a mixed approach, which includes three different elements: firstly, an indication of the general criteria of immovable property — a strong connection with the land, impossibility to move it without damage; secondly, an official list of separate immovable things, some of which fit into these criteria, while others do not meet them; thirdly, a blanket way of regulation — mentioning other things that can be referred by law to immovable property. In other words, the criterion approach in the legislative fixation of the concept of immovable property has not the main, but rather an auxiliary meaning and covers not the entire scope of this concept, but only some, albeit the largest part of it, which generally contradicts the function of criteria from the point of view of logic.