RAZGRANIČENjE IZMEĐU REGISTROVANE ZALOGE I FIDUCIJARNOG PRENOSA SVOJINE KAO REALNE GARANCIJE

Abstract

The subject of the paper is an analysis of the physiognomy of two institutes with the role of real security of claims, which exist in modern comparative law, namely - registered pledge and fiduciary transfer of property for the purpose of real security of claims. Unlike the registered (stateless) pledge on movable property, which is known by all modern regulations, including domestic law, the fiduciary transfer of property is an unusual real guarantee, which is not regulated in positive Serbian law (nor has it ever been). Nevertheless, this institute has long been familiar with European, and especially German, business (banking) practice, as well as numerous newer regulations. Since the introduction of this institute was proposed by one of the two legal projects drafted so far, which embody the future Serbian civil law (Draft Code of Property and Other Real Rights of Serbia from 2011), the author locates the similarities and differences between the two mentioned institutes, with with the aim of formulating a final assessment on the expediency of introducing this institute into Serbian law de lege ferenda. After the analysis, the author concludes that the fiduciary transfer of property: in terms of content, effect, object, flexibility, multifunctionality and non-accessibility exceeds the purpose of a registered pledge, and with its physiognomy and internal logic embodies a guarantee sui generis, the introduction of which would enrich the range of real guarantees in Serbian law. After all, it is the course of modern European national legislators, but also of supranational EU law, which is significant due to the need to harmonize domestic law with European law.