The action of rights in rem on the relations of merchant shipping

Abstract

The article explores the legal nature and analyzes the relationship of property, obligation and public law relations arising in the field of merchant shipping. The conclusion about the leading role of civil law in the regulation of these relations is substantiated. At the same time, the basis for the construction of both obligations and public marine legal relations are proprietary relations and rights ("rights in rem"), that establish the affiliation of material objects which are used for merchant shipping. Considering the inconsistency of the current real law regulation with existing socio-economic needs, the author analyzes the content of the bills prepared in the process of reforming civil legislation. In author`s opinion, these bills do not fully solve the tasks of establishing in the Civil Code of the Russian Federation a closed list of rights in rem («numerus clausus») and proper regulation of possession. In particular, the unresolved problems of regulating proprietary rights on natural resources, the controversial approach of the legislator and the authors of the reform to determining the legal status of a sea vessel are noted. The author does not agree with the exclusivity of the principle of a single real estate object and justifies the need to preserve the status of a sea vessel as a real thing. The article defends the position of a consistent distinction between real and obligation, absolute and relative, as well as private law and public law relations. However, the author does not agree with the self-removal of civilists from the tasks of coordinating civil and administrative legislation. The right of ownership and other absolute proprietary rights (rights in rem) are regulated exclusively by civil law. Their connection with such public law obligations as obligations to ensure the safety and environmental friendliness of merchant shipping is realized by concretizing in relative public legal relations the general passive legal obligation of the owner not to violate the subjective rights of other persons. This obligation is enshrined in the provisions of the Civil Code of the Russian Federation and is characterized in modern civil science as a general regulatory and protective obligation of a public law nature. The author of the article substantiates that such an obligation may arise not only from the owner, but also in cases where a person owns a material object on other titles (bareboat charter, possession of cargo, etc.). The above justifies the need to formulate the general provisions of rights in rem not only considering the tasks of ensuring civil circulation, but also taking into account the needs of public law regulation of such areas as merchant shipping.