Вещное право: традиции, новеллы, тенденции развития

Abstract

On the basis of the analysis of the pandect doctrine, modern theory of Russian and foreign civil law, Russian civil legislation development concepts, the article deals with evolution of understanding of general and special attributes of some corporeal rights (ownership right; limited rights). The author considers reasonableness of mixed, palliative structures of the subjective civil legal rights combining some attributes of both real, and liability rights: real/liability rights. Based on results of the conducted research of civil legislation sources and civil law science the author comes to the following conclusions. The Roman Law did not consider separate institutes (emphyteusis, superficies, easement, ownership right) in the context of the uniform concept of the corporeal rights system. Sampling analysis of pandects has shown that pandectists did not know most attributes of corporeal rights currently used in the scientific literature, and the nature of exposition of pandects does not in any way testify to the uniformity of statement of the concept and specific features of corporeal rights. At the same time the Roman Law and the pandect doctrine laid an essential groundwork for subsequent generalisation and systematization of the most commonly encountered and recurrent attributes of corporeal rights which in the modern science are commonly interpreted as general identification attributes of the corporeal right. The author denies reasonableness and expediency of existence of real/liability legal rights. The article demonstrates historical features of formation of the corporeal right sub-branch in Russia, identifies general tendencies of development of this legislation branch and corporeal right science at the present stage. The methodology of the article is based on general scientific methods of deduction and historicism, special civil research methods: comparative/legal, functional and dogmatic ones.