FIDUCIJARNI PRENOS SVOJINE U SAVREMENOM HRVATSKOM I SRPSKOM PRAVU

Abstract

The fiduciary transfer of property is a controversial institute of real law, dating back to Roman law, which has been revived and reshaped by modern practice. The institute, as a kind of conditional, content-limited property, has had its significant place in the Law on Property and Other Real Rights in Croatia for 25 years, as an atypical real guarantee that is functionally most similar to the right of lien. The subject of the paper is a comparative and axiological anal- ysis of this institute in positive Croatian law and its status in Serbian law, whose positive regu- lations do not regulate this institute, but whose introduction is proposed by one of the two le- gal drafts. Considering the situation in Serbian judicial practice, which has been vacillating for a long time regarding the issue of the permissibility of this institute, and in doctrine - which generally recognizes it, the author’s position is that this institute should be standardized in Serbian law de lege ferenda, for legal certainty, whereby the Croatian regulation represents a potential model. Hence, it is important to critically assess certain segments of this solution, starting with the question of origin, expediency, content, effect and legal nature. The final goal of the paper is to evaluate the adequacy of the compared solutions, as well as formulate proposals for regulating fiduciary property de lege ferenda, as part of the planned reform of the Serbian civil law, as well as of the harmonization of national solutions at regional level.