Problems of Transfering Property Rights and Ways to Solve Them

Abstract

The analysis of modern law enforcement practice on the issues of determining the legal nature of property rights and the possibility of their transfer shows that the activity of the judiciary does not contribute to the effective development of civil turnover. The purpose of the research is to identify the legal nature of the transfer of property rights and the applicability of this legal category to various objects of civil rights. Based on the analysis of the transfer of things and property rights, the idea is proved that the transfer of a thing is a legal fact while the transfer of a right is not such a fact. In this regard, the necessity of linking the transfer of the right with some independent legal fact is justified. The attention is focused on various legal ways of things and property rights and on the inadmissibility of the extension of the norms of property law to property rights. The principles of separation and abstraction characteristic of the laws of the German legal family, as well as the possibility of their application in Russian civil law, are investigated. The conclusions that the division of transactions in accordance with the principle of separation into mandatory and administrative is impractical and does not meet the needs of civil turnover in Russia are drawn. The provision on the consideration of the administrative transaction as a legal fiction is substantiated. The idea that only one binding transaction is needed for the turnover of property rights is defended. A way to strengthen civil turnover by introducing mandatory notarization of transactions with property rights is suggested.