Acquisitive Prescription Research Articles

ТЕМПОРАЛЬНІ ВИМІРИ НАБУТТЯ ВЛАСНОСТІ ВІД НЕПОВНОВАЖНОГО ПРОДАВЦЯ

This scientific work is dedicated to the research of the topical issue of the procedure and time of acquisition of the right of ownership in the case of acquiring a thing by purchasing it from an unauthorized seller. Such cases are not uncommon in property circulation in society, but without proper legal regulation of their mechanisms and consequences, a significant part of things will be withdrawn from property circulation. Of course, a certain role is played here by the revived institution of acquisitive prescription, but also important importance is attached to the tools of obtaining ownership at the time of occupation of the thing in accordance with the mechanism of Art. 330 of the Central Committee of Ukraine. However, this article is in significant conflict with Art. 388 of the Civil Code of Ukraine, which regulates the procedure and grounds for vindication protection of property, which is a shortcoming of the current legislation. Therefore, the work analyzes theoretical developments in the commented direction and compares them with the practical course of concrete relations when a bona fide purchaser receives an item from a person who was not supposed to alienate the property, but did so voluntarily or involuntarily. Doctrinal approaches to the consequences of such an occupation have been studied. It was established that the good faith of the illegal expropriator does not matter, the legal consequences of such a transaction are determined based on the identity of the acquirer. If he is in good faith, which is presumed, then the acquisition of the right of ownership by acquisitive prescription can occur for a person in good faith only in the case when he owns a thing that was lost, stolen or otherwise removed from authorized subjects. In all other cases, the property is immediately acquired by a bona fide person at the time of receiving the property from an unauthorized seller. However, the author does not support the indicated approach to the acquisition of property at the moment when a bona fide subject receives property from an unauthorized seller, not as a readymade recipe, but only as a starting material for further theoretical construction. Such work was carried out in this article, specific proposals were made regarding the improvement of the current regulatory framework.

The Content of Acquisitive Prescription Criteria in the Doctrine and Law Enforcement Practice

The author analyzed the practice of general jurisdiction courts and commercial (arbitrazh) procedure courts in cases related to acquiring property rights by way of acquisitive prescription heard in 2020–2021. The aim of the study is to determine the degree of influence of legal positions that have been developed in domestic judicial practice on the project of reforming the institution of acquisitive prescription in Russia. The analysis of the array of court decisions resulted in the determination of the content of the acquisitive prescription criteria in law enforcement practice of Russian courts, identification of the problems related to the procedure for recognizing the right of ownership of real estate in the order of acquisitive prescription in court, and proposals for solving them. The author makes conclusions about the preparation of a draft Russian reform of the institution of acquisitive prescription without taking into account the legal positions developed in the practice of courts of general jurisdiction and commercial (arbitrazh) courts in cases of acquiring property rights by way of acquisitive prescription.

Prescription of transmission service easement

The topic of this study is the possibility of acquisitive prescription of transmission easement, an institution that was implemented into Polish law on 3 August 2008. On the basis of the analysis of the legal literature and the Supreme Court jurisprudence it has been concluded that it is possible to acquire the transmission easement by using legal references to other legal regulations defined in the civil code. Another conclusion that can be drawn from this work is that it is possible to reconstruct the prerequisites for the power of way easement acquisitions, within the scope of which reference is made to the provisions on the acquisitions of real estate and land easement. As a result, three prerequisites should be distinguished as the basis for the power of way easement acquisitions, specifically: the possession of the easement, the use of a permanent and visible facility and the passage of time. The last conclusion is the view that, despite the dispute in legal doctrine, it is possible to include the period of possession of the easement before August 3, 2008, to the period of possession of the transmission easement following that date and consequently to reduce the term of the transmission easement prescription by that period. The subject of this paper deserves special attention because many legal solutions applicable to the preservation of the easement of land, the preservation of the easement of land with the content corresponding to the transmission easement or the preservation of real estate are reflected in the legal considerations developed by the legal doctrine and the jurisprudence and referring to the possibility of the preservation of the transmission easement while omitting such a possibility by the legislator in the provisions of civil law.

Acquisitive Prescription of Moveable Property under Russian Law

Amid the welcome increase in comparative property law scholarship of recent times, particularly in Europe, Russia has been somewhat neglected. This article seeks to provide a start in bringing the rules and policy choices of Russian property law to the attention of an English-language readership. Its subject is acquisitive prescription of moveable property. Here the law as set out in the Russian Civil Code has been the subject of a series of court decisions. The principal analytical instrument chosen to act as a comparator is the Scottish Law Commission’s Report on Prescription and Title to Moveable Property of 2012. The recommendations made in that as yet unimplemented report were significantly influenced by the laws of other jurisdictions, although not Russian law. The article while unsurprisingly discovering commonalities given the shared Roman heritage also finds striking differences. These deserve consideration by legislators in both countries.

Acquisitive Prescription in Early Modern International Law

Abstract This article examines the role of Roman acquisitive prescription in early modern international law debates. The ubiquity of prescription demonstrates the importance of Roman private law in the development of international law. Yet, although it was a widely-used juristic concept, there was no consensus about its legitimacy in international relations from 1500 to 1800. Debates raged over whether it was a product of the natural law, the law of nations, or the Roman civil law. There was a crucial tension between prescription’s utility in confirming the political status quo and its tendency to justify ownership based on prior injustice or violence. In assessing the place of prescription in international law, this article examines its use by Grotius, Vázquez, Freitas, Boecler, Conring, Bellarmine, Solórzano, and others in debates over freedom of the seas, imperial possessions in the Americas, Dutch independence, papal temporal power, and the aftermath of the Thirty Years War.

Legal protection of public money in the UAE legislations and Islamic law

The study aims to assess the legal regulation and institutional framework for protecting and controlling public money in the United Arab Emirates, as well as comparing it with the provisions of Islamic sharia. The study begins with the concept of protecting public money, its importance, images, and types, and then analyzes the legal texts for the protection of public money in the UAE legislation and Islamic law. Then it identifies the challenges facing the protection and control of public money in the United Arab Emirates. The researcher relies in his study on the descriptive and analytical approach. The study reaches several results, the most important of which are: the UAE legislator protects the public money from any violation through a set of laws that forbid to dispose public money, its seize, or its acquisitive prescription. The study also reaches several recommendations, the most important of which are: the legislator has permitted to dispose public money in accordance with legal conditions and regulations. Thus, any disposal violation will be invalid. The study also recommends the necessity of continuous work on developing legislations that regulate and control the protection of public money in the UAE.

ВОПРОС ПРИМЕНЕНИЯ ПОЛОЖЕНИЙ О ПРИОБРЕТАТЕЛЬНОЙ ДАВНОСТИ: ТЕОРЕТИЧЕСКИЙ И ПРАКТИЧЕСКИЙ АСПЕКТЫ

The authors of the article consider the issue of practical interpretation and application of provisions on the emergence of property rights by virtue of acquisitive prescription. The Resolutions of the Plenums of the Supreme and Supreme Arbitration Courts and the Resolution of the Constitutional Court of the Russian Federation were selected as the provisions under consideration. The main problems are seen as non-compliance with legislation in the field of the fundamental principle of equality of participants in civil relations and free interpretation of Article 234 of the Civil Code of the Russian Federation. The authors expressed an opinion on the specification of the provisions of the legislation that could legalize the provisions that are currently controversial.

The premise for the acquisition by acquisitive prescription of a road easement in the form of the existence of a permanent and visible device.

The institution of acquisition of land easement by acquisitive prescription has been widely discussed in recent years both in the science of law and in judicature. The statements generally concerned the broadly understood issues of land easements with the content corresponding to the transmission easement. Despite these numerous positions, it turned out that there were still several issues related to the interpretation of Art. 292 of the Civil Code causes a lot of controversy. The article attempts to explain one of them. The point is to examine whether the premise of the use of a permanent and visible device also requires a preliminary determination of the group of people who made this device. The conducted analysis leads to the conclusion that from the point of view of the premises of usucapion of the easement, it is indifferent to who erected the permanent and visible devices.

Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.

Current Issues in Reforming the Institution of Acquisitive Prescription in Russia, England, Hong Kong and Australia

The author examines the problems of reforming the institution of acquisitive prescription in Russia, England, Hong Kong and Australia, and suggests some ways to solve them. The study was conducted with the aim of a detailed study of the institution of acquisitive prescription in continental and Anglo-American legal families. In addition, the author sets the goal of establishing the influence of foreign experience of changing the provisions on acquisitive prescription on the Russian reform of prescription ownership based on a comparative legal analysis of the already carried out legislative reform in England and the proposed changes in the real law of Russia, Hong Kong and Australia. The author makes conclusions on the controversial nature of the alleged provision on the rejection of the criterion of good faith of prescription ownership in Russia, on the narrowness of the declared goal of the Russian reform of the institution of acquisitive prescription; the indirect influence of the foreign experience of reforms in the jurisdictions of the Anglo-American legal system on the Russian reform of property law has been established.

On the Possibility of Acquisitive Prescription by the State of Real Properties Unlawfully Seized under the Provisions of the 1944 Agrarian Reform Decree

<p>The subject of this paper are those factual states that occurred on the basis of the agrarian reform decree and concerned the unlawful seizure by the State of palace-park complexes. It was only after the collapse of real socialism in 1989 that the owners or their legal successors obtained an annulment of the decision to seize the property. However, this was, and is, only the beginning of the struggle, as the State Treasury or its legal successors are claiming before the common courts the acquisitive prescription of the property being the subject to the recovery claim. The divergence of at least 20 years in jurisprudence as to the date of commencement of the period required for acquisitive prescription (1980–1991) is an undesirable phenomenon, requiring the adoption of a coherent approach of the courts. Consequently, the authors of this text represent the view that the period of validity of both the Agrarian Reform Decree and the subsequent legal acts, with particular emphasis on the period of validity of the Decree of 1945 (Journal of Laws no. 28, item 321) and then Article 9 (16) of the Act of 1958 excluded the course of the acquisitive prescription in favour of the State Treasury of the agricultural and forestry properties unlawfully seized by the State. This period lasted until 31 December 1991, i.e. until the final date when Article 9 (16) was in force.</p>

Trends in Supreme Court jurisprudence in real property cases in 2020. (Part I). Review

The review includes presentation of the theses and motives from the Polish Supreme Court’s jurisprudence of 2021 regarding real estate property law, including in particular the encumbrance and dispositions of real rights (iura in rem). The most important issues concerning the content and performance, the acquisition and loss of ownership of real estates, the current problems concerning the acquisitive prescription of easements (so called transmission servitudes) and the relationship between the ownership rights of buildings or other equipment, as well as the ownership of the premises (flats) being separate real estates and perpetual usufruct (emphyteusis), are presented. The review includes also the new judgments of the Supreme Court concerning the development agreement and relating to the institution of fiduciary ownership.

A Short Examination of Legal Principles of Acquiring the Real Estate Ownership through Completion of Acquisitive Prescription by Possession: in Terms of Justice and Economic Efficiency

어떤 사람이 20년간 소유의 의사를 가지고 타인의 부동산을 평온 및 공연하게 점유하면 그는 등기청구권을 취득하게 되고 이 등기청구권을 원소유자에게 행사해서 등기까지 경료하게 되면 그는 해당 부동산의 소유권을 취득하게 된다. 이것이 우리 민법 제245조가 규정하고 있는 점유취득시효 제도이다. 점유취득시효 제도의 존재이유는 무엇보다 ⅰ) 사회질서의 유지 및 ⅱ) 증거보전곤란으로부터의 구제를 들 수 있을 것이다. 1950년대 전쟁의 소용돌이 속에서 많은 사람들이 자신의 소유권을 입증할 수 있는 부동산 관련 자료를 분실한 상태에서 1960년 현행 민법은 법률행위에 의한 부동산물권 변동에 있어 등기를 그 성립요건으로 하는 입법주의를 채택하면서 아울러 1960년 이전에 있었던 법률행위에 의한 부동산물권 변동의 경우도 1960년 1월1일부터 3년내에 등기하지 않으면 그 효력을 상실하는 것으로 부칙에 규정하였다. 그 결과 자신이 소유권자임을 증명하기 어려운 많은 미등기 부동산 소유자들로 하여금 해당 부동산의 소유권을 상실할지도 모른다는 우려를 낳았고 사회혼란을 야기하였다. 이와 같은 시대적 상황하에서 점유취득시효 제도는 진정한 소유자들을 입증곤란으로부터 구제하고 사회질서를 유지하는데 분명 일조하였다. 그러나 등기를 법률행위에 의한 부동산물권 변동의 성립요건으로 하는 현행 민법이 시행된지도 어언 60년 이상이 지났다. 따라서 진정한 소유자가 누구인지를 가려야만 하는 사회혼란으로부터 사회질서를 유지한다든지, 진정한 소유자로 하여금 자신의 소유권을 입증하기 어려운 상황으로부터 구제한다든지 하는 측면에서는 점유취득시효 제도의 존재의미가 분명 퇴색된 것은 사실이다. 그러나 점유취득시효 제도는 경제적 효율성 측면에서는 분명 의미있는 제도이다. 원소유자에 의해 방치되어 있는 토지에서는 생산량은 전무하다. 하지만 점유취득시효 제도를 인정하게 되면 사람들은 해당 토지의 점유를 통해 생산량을 산출하고자 할 것이기 때문이다. 어떻게 하면 주어진 자원을 갖고 더 많이 생산하여 더 많은 사람을 만족시킬 것인지는 어느 시대 어느 사회를 막론하고 중요한 문제이다. 그렇다고 점유자가 점유를 개시한 시점부터 아예 해당 토지의 소유권을 원시취득한 것으로 보게 되면 이는 명백히 교환적 정의에 반하는 것이다. 해당 토지의 원소유자는 소유권을 상실하게 되고 제한물권자는 제한물권을 상실하게 되기 때문이다. 각자의 재산권을 엄격하게 보장해 주는 것은 교환적 정의의 문제이다. 다음으로 새로운 재산권 창출 시 누구에게 귀속시킬 것인지를 결정함에 있어 그 결정기준과 원칙을 무엇으로 할 것인지는 배분적 정의의 문제인데, 현재 우리 사회의 보편적 가치관은 기여도에 따라 각자의 몫을 정하는 것이라고 보여진다. 어차피 방치되어 있는 토지이므로 원소유자는 아무런 손실도 없다. 하지만 점유자가 자신의 노력과 비용을 들여 식재한 수목은 권원없이 식재한 것이므로 해당 토지의 일부로서 수목과 과실 모두 해당 토지의 원소유자에게 귀속되는데 이는 배분적 정의에 반하는 것이다. 따라서 점유자에게 해당 토지에 대한 사용권원을 인정할 필요가 있는데 소유권을 인정하는 것은 명백히 교환적 정의에 반하므로 법정지상권 정도를 인정하는 것이 합리적이라 여겨진다. 향후 점유취득시효 제도 개정 시 이러한 방향으로의 개정을 제안하는 바이다.

권원 중심의 취득시효 법리와 자주점유 판단 - 성립요건주의, 등기의 추정력과 관련하여 -

본 논문에서는 부동산 점유취득시효제도의 운영에 있어서 지배적 견해인 기성사실존중주의(장기간 점유가 있으면 이를 존중하여 취득시효를 인정해야 한다는 주의)를 비판적으로 고찰하고 성립요건주의를 취하면서 등기의 추정력을 인정하는 우리 법제에서는 권원 중심의 취득시효 법리를 전개하는 것이 타당하다는 점을 논증하였다. 본 논문의 내용을 요약하면 다음과 같다.<BR> 첫째, 우리 취득시효 입법에 영향을 준 프랑스 민법, 일본 민법을 살펴보면 프랑스에서는 취득시효가 진정한 소유자의 소유권 증명에 대한 부담을 덜어주는 기능을 하는 반면, 일본에서는 취득시효가 기성사실존중주의에 의해 진정한 소유자의 소유권을 빼앗는 기능을 하고 있다. 우리 취득시효의 운영에 있어서 일본의 기성사실존중주의가 상당한 영향을 미쳤는바 이에 대한 재검토가 필요하다.<BR> 둘째, 성립요건주의와 등기의 추정력을 인정하는 우리 법제에서는 등기 중심으로 물권법 질서가 구축되어야 하는바, 등기보다 점유를 우선시하는 기성사실존중주의는 정당성을 인정받기 어렵다. 우리 법상 취득시효는 제한적으로만 인정되어야 하는바, 소유자를 희생하면서까지 점유자를 보호할 예외적 정당성이 인정되는 경우, 즉 해당 점유자가 소유권 취득의 원인이 되는 권원을 갖춘 경우에 한하여 취득시효가 인정된다고 보아야 한다(권원 중심의 취득시효 법리). ‘소유의 의사’에 대한 정의에 있어서도 우리 법제에 기초한 규범적 관점을 투영해야 하는바, ‘소유의 의사에 기한 점유’는 ‘소유권을 이전할 수 있는 권원에 기한 점유’로 정의할 수 있다.<BR> 셋째, 취득시효 제도가 본래의 취지에서 벗어나 운영되어 온 이유는 민법 제197조 제1항의 자주점유 추정 규정 때문이다. 자주점유 추정 규정은 의사주의하에서 점유자가 소유자로 점유하는 경우가 많다는 경험칙에 근거한 입법인바, 성립요건주의를 취하는 우리 법에는 타당하지 않으므로 삭제되어야 한다. 다만, 삭제되기 전까지는 위 추정 규정의 영향력을 제한하는 해석론이 요구되는바 이에 대한 논의를 전개하였다. 한편, 타주점유를 자주점유로 전환하기 위한 요건, 오상권원에서 취득시효가 인정되는 범위와 관련하여서도 필자가 주장하는 권원 중심의 취득시효 법리가 관철되어야 한다.

Family law and property law questions in connection with the state of emergency, declared in Bulgaria (13 th March 2020 – 13 th May 2020)

The article analyzes some family law and property law questions, arising in connection with the declared state of emergency from 13.3.2020 to 13.5.2020 on the territory of the Republic of Bulgaria due to the epidemic of COVID-19. Answers are given to the following questions: can the court consider a divorce claim or an application for divorce by mutual consent during the state of emergency; whether it is possible to attain judicial protection in cases of domestic violence in the state of emergency and under what conditions; as well as whether the acquisitive prescription is suspended during that period of time.

Conditions for the acquisition of ownership by acquisitive prescription

Conditions for the acquisition of ownership by acquisitive prescription

ПРОБЛЕМА ТОЛКОВАНИЯ КРИТЕРИЯ ДОБРОСОВЕСТНОСТИ, ОГРАНИЧИВАЮЩЕГО СФЕРУ ДЕЙСТВИЯ МЕХАНИЗМА ПРИОБРЕТАТЕЛЬНОЙ ДАВНОСТИ

Based on the analysis of the current civil law, judicial practice and scientific literature, this article explores some of the problems of interpreting good faith as the requisite for acquiring ownership by prescription. The authors draw attention to the limited situations to which the rule on acquisitive prescription may apply, due to the existing official regulatory clarification of the good faith criterion. The work examines the latest practice of the judicial board for civil cases of the Supreme Court of the Russian Federation, which formed a position on the interpretation of good faith, which seems to contradict the legitimate understanding of this condition. In this regard, some situations of life are examined, namely, the seizure of property by moving into an empty abandoned house, as well as the situation when the cohabitant (actual spouse) becomes an independent owner of the property of the owner. Using these examples, the authors show how the problems of interpreting the criterion of “good conscience” as part of acquisitive prescription investigated in the article affect the formation of ambiguous, and in some cases, illegal judicial practice.

Some aspects of the acquisition of ownership of land in virtue of acquisitive prescription

Some aspects of the acquisition of ownership of land in virtue of acquisitive prescription

Оwnership as a legal category

The article is devoted to the analysis of ownership in Ukraine. Features of ownership as a legal category that is inherent in real and compulsory relations are investigated. The legal aspects of ownership used to characterize the acquisition period are clarified. The legal consequences of actual domination of a thing are described. Thus, ownership in civil law is considered as the subjective right of the owner and as a separate real right to own someone else’s property. In civil law, ownership is considered as a subjective right of the owner or other persons, and not as an object of subjective rights. The actual content of a thing without a legal basis should not be identified with the right of ownership in the legal aspect. The stay of the find in fact with a person who has found a thing for six months while the unknown owner of it should not be interpreted as a right of ownership, since in the Civil Code of Ukraine the right of ownership is considered among the types of real rights to someone else’s property. The latter in turn arise on the basis of the will of the owner or the law, and in the case of a dispute — on the basis of a court decision. The positions on the protection of the right of ownership over acquisition time in the judicial procedure are justified. Real ownership is one of the oldest known under Roman law. It covered two aspects: the independent type of property rights and one of the powers that constitute ownership. Since the time of Roman law, attention has been focused on the absolute nature of ownership in the form of domination of things. Dominance can be seen in the factual and legal aspects. The establishment by the courts of the fact of bona fide possession of a thing for a period determined by law can be carried out in a separate proceeding. But it cannot recognize the ownership of a thing in order to consider cases of separate fact-finding proceedings of legal importance. Key words: right of possession, property right, rights, acquisitive prescription.

Court proceedings in cases regarding ascertaining acquisitive prescription of real estate

In the article, the author presents the characteristics of the proceedings for ascertaining acquisitive prescription of real estate. Acquisitive prescription is a way to gain property rights. The legislator established non-litigious proceedings in this respect, and at the same time regulated its differences only to a very narrow extent. In this study, the author attempts to comprehensively characterize the proceedings by interpreting legal provisions, discussing views of doctrine and jurisprudence and their critical analysis. The study discusses both the issues of subjects of proceedings as well as the dynamics of proceedings and the characteristics of judgments issued in them. Of particular importance are issues that give rise to doubts, such as the circle of subjects interested in the case, references to the provisions regarding the confirmation of the acquisition of an inheritance and the problem of not binding the court with an application request.