Забезпечувальні речові права: юридична природа, функції, види

Abstract

The article is devoted to the study of security proprietary rights to ensure the fulfillment of engagements. The institute of security rights, its regulation under the current legislation of Ukraine and individual countries is analyzed. The legal nature and specific features are determined, the functional load of the methods of ensuring the fulfillment of engagements is clarified and the characteristics of the engagement-legal and real-legal types of security are characterized. Material security encumbrances on the debtor’s property rights, resulting in the „right of succession”, which is to accompany the encumbrance on the thing in the event of its transfer to other owners. The elements of the binding legal relationship are described. Civil turnover requires an effective system of precautionary measures of both binding and substantive nature, due to the need for legal remedies aimed at the proper performance of the parties to their contractual engagements. Along with the engagements, an important place is occupied by the material types of securing contractual engagements, where their main purpose is to give the creditor confidence in the satisfaction of their property interests in case of non-performance or improper performance of engagement by the counterparty. The grounds for the right of the creditor to satisfy property claims on the subject of material security are investigated. A pledge or mortgage may arise on the basis of a contract, law or court decision. The creditor’s claims on the mortgaged property can be satisfied in several ways: foreclosure on the mortgaged property through its sale or transfer of ownership of the mortgaged property in case of default by the debtor of the engagement secured by the pledge. The right of retention is considered, which is realized through the incentive of the debtor to fulfill the engagement by lawful possession of the thing by the creditor until the proper performance of the engagement by the debtor. The right of retention as a form of ensuring the proper performance of an engagement is included in the provisions governing the performance of certain contracts, including contract type, provision of services, commissions, etc. Security rights arise before the breach of the engagement and depend on the proper performance of the contractual engagement. The collateral gives the creditor the right to receive property satisfaction from the subject of collateral in case of non-performance of the engagement due to the debtor’s fault. The analysis and brief description of the types of security property rights is carried out. Theoretical conclusions on the researched questions directed on improvement of regulation of the security rights in the civil legislation of Ukraine are formulated.