Real Rights Research Articles

Glamour and gripes of community forestry: impact on income distribution

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The Characteristics of an Abstract System for the Transfer of Property in South African Law as Distinguished from a Causal System

Two divergent systems are usually differentiated between when it comes to the way in which real rights are transferred from one person to another, namely abstract and causal systems. In this article the features of each system, the respect in which they differ from each other, and the practical implications of the distinction are established. It appears that in a causal system real rights are transferred by conclusion of the obligatory agreement, which should be valid and enforceable. The mutual intention to transfer and to receive real rights is not construed as an independent real agreement as it is contained in the obligatory agreement. In a causal system the transferor finds himself in a favourable position in relation to other parties while bona fide third parties undoubtedly get the worst of the deal since they have no protection against the disadvantageous consequences of delivery owing to a void obligation. In an abstract system the obligatory agreement is not sufficient for the transfer of real rights, the thing should also be delivered and there should be a valid real agreement which consists merely of the mutual intention to transfer and to receive real rights. The real agreement is a characteristic of an abstract system which distinguishes it from a causal system. Compared with the position of those in the causal system, the transferee and third parties find themselves in a favourable position vis-à-vis the transferor. In a causal system the concept iusta causa refers to a valid and enforceable obligatory agreement or other juridical fact which obliges the transferee to deliver the thing. In an abstract system it serves no purpose to describe the causa with reference to the obligatory agreement, since it is not a substantive law requirement for the transfer of real rights. The causa concept refers rather to the mutual intention to transfer and to receive real rights, which is nothing less than the real agreement. Since the causa is contained in the real agreement it is no longer of any use in an abstract system and should be abandoned. The Dutch system displays the characteristics of an abstract system in that a separate act of delivery should exist and a valid real agreement is a requirement for the transfer of real rights. On the other hand it also displays characteristics of a causal system, since a valid obligatory agreement is a requirement for the transfer of real rights.

A Usucapião Extrajudicial: A Contradição do Silêncio como Discordância

O presente trabalho objetivou analisar a possibilidade do reconhecimento da usucapião pela via extrajudicial. Utilizou-se do método de pesquisa teórico-dogmático, exploratório e explicativo, adotando-se uma pesquisa jurídica e social, com técnica de coleta e análise documental e bibliográfica. Concluiu-se pela sua ineficácia como disposta pela lei, por retirar do registrador a possibilidade do reconhecimento da usucapião diante da ausência expressa de concordância de qualquer um dos titulares de direitos reais ou de outros direitos registrados ou averbados na matrícula do imóvel usucapiendo ou nas matrículas dos imóveis confrontantes.

Matrimonial Property and (or) Common Property of the Spouses: the Analysis of Modern Family and Civil Law

The question of the relationship between the concepts of "matrimonial property" and "the common property of the spouses" in national family law is one of the most discussed. The current edition of Art. 34 of the Family Code of the Russian Federation and Art. 256 of the Civil Code of the Russian Federation use the concept of "matrimonial property" and "the common property of the spouses" as identical and equivalent. The author of the article, analyzing legislative and law enforcement practices, concludes that at the present stage of the development the spouses may receive income from not only labour and entrepreneurship, income from intellectual property, but also income from participation in corporate relations. The broad interpretation of the concept of "property" allows you to include in the common property of the spouses not only property provided by Ch. 2 Art. 34 of the Family Code of the Russian Federation, but also other assets, including certain kinds of limited real rights, property rights, as well as the general requirements of the debentures that are an integral part of married life. As a result, based on current legislation and judicial practice, the author of the article defends the view that with regard to the legal regulation of property relations of spouses it is advisable to use the term "common property of the spouses" as it most accurately and fully reflects the essence and the content of property acquired by spouses during their marriage.

Založno pravo u rimskom pravu

THE legal institutes of the ancient Rome, particularly those referring to the Law of Things and Law of Contract, have had a great influence on the solutions which are nowadays still used. Up to this very day, there have been preserved some institutes of Roman law such as: the protection of property, the divisions of things, the right to the property, the right of servitude and the classification of contracts. IN Roman law, in a group of real rights to someone else`s property (jus in re alien), there were, among the others, included the pledge rights. The pledge right is the right of security. Among the pledge rights, the Romans included fiducia, pignus and mortgage.

ДО ПИТАННЯ ПРО ПРАВОВУ ПРИРОДУ ДЕРЖАВНОЇ РЕЄСТРАЦІЇ ПРАВ НА НЕРУХОМЕ МАЙНО

The article examines different views on the state registration of real property rights, in particular, indicates that such a process is interpreted by scholars in terms of administrative law as: a type of administrative proceedings or as an institution of law and legislation, or as an administrative service, and in some cases as the way the state performs administrative functions. It is noted that the state registration of rights to real estate especially ownership rights, can be an institution of administrative and civil law or be considered an interdisciplinary institution. In the part in which it is an institution of administrative law, the question arises, to the substantive, ie specifically administrative law or procedural, ie administrative procedural law, this institution can be attributed? Public - legal direction, as well as the legal properties that are endowed with state registration of rights allow us to speak about a certain uniqueness of its public law essence. It plays a special role in private legal relations as a legal mechanism for the emergence, transfer and termination of rights. It is noted that while civil law uses the main dispositive method of legal regulation of civil relations, the studied relations are regulated by the method of imperative prescriptions, in particular imperative are the rules of civil law, which establish the need for state registration, as well as administrative law of procedural nature. It is stated that as part of administrative law the institute under study belongs to its special part, which contains normative material and theoretical provisions governing a particular type of homogeneous social relations, including subsectors and legal institutions, service law, municipal law, administrative law, administrative procedural law.

Građevinsko zemljište kao predmet vraćanja u postupku restitucije

Ownership right on building land is one of the property rights which had been deprived from citizens by state authorities in the period after the Second World War, while there were a lot of legal bases for deprivation. Restitution of the deprived property is the obligation of each country which stipulates the rule of law as one of its constitutional principles and in order to achieve that goal two laws regulating this issue were passed in our country, one general, and the other referring only to churches and religious communities. However, there are some differences between these two laws, such as differences in terms of regulating rights of third persons on deprived building land and other real estates, especially rights of holders of real and personal services and rights of lessees of real estates. The possibility of restitution of ownership rights on building land is limited by several factors, whereby a balance between interests of former owners of building land, interests of individuals and legal entities having ownership rights on objects built on that land after deprivation as well as public interests need to be achieved. Therefore, the principle of natural restitution, although it is envisaged as the basic principle of restitution of property rights, as well as ownership rights on construction land, is in practice implemented with many exceptions.

“The Real rights of Man” : Thomas Spence, Paine and Chartism

Le mouvement Chartiste s’enracine dans la pensee de Thomas Spence. Si la quete de reforme parlementaire radicale des Chartistes s’inscrit dans leur interpretation de l’œuvre de Paine, c’est chez Spence qu’il convient de rechercher la source de leur projet de reforme agraire. Paine a souvent suscite une deference sans nuance qui a tendu a rejeter dans l’ombre certains de ses contemporains pourtant egalement influents en matiere de pensee politique radicale. En matiere de reforme agraire, c’est l’influence de Spence, et non celle de Paine, qui s’est averee la plus pertinente. Cela se manifeste meme dans les ecrits de Richard Carlile, le disciple le plus zele de Paine. Quatre elements sous-tendaient la pensee Chartiste en matiere de propriete fonciere–quatre elements egalement au cœur des idees de Spence. 1] La conviction que la petite propriete fonciere permettait de maximiser la production du sol. 2] L’hostilite aux grands domaines de propriete fonciere, quelle qu’en soit la forme legale. 3] La defiance envers le gouvernement en tant que proprietaire ou gestionnaire potentiel du domaine national. 4] La propriete fonciere s’inscrivait dans une attaque plus large des citadelles du pouvoir economique et politique. Cet article se propose d’etudier chacun de ces quatre aspects.

О квалификации вещных прав

О квалификации вещных прав

REVIEW AND CRITIQUE THE MEDICAL LAW WITH EXPLANATION PHILOSOPHICAL FOUNDATIONS OF ISLAMIC SCHOLARS (FARABI, IBN SINA, MULLA SADRA)

Medical science as a science is considered important in the history of science and the wisdom. The importance of this science in a way that even in Islamic traditions as one of the basic science is mentioned. The aim of this study is to review and critique patients' rights by using theories of philosophers (Farabi, Avicenna and Mulla Sadra). In this study we use the the principles of Islamic philosophers ancient psychology such as two-dimensional human being, emphasizing the primacy of the spiritual dimension, explaining various aspects of the the human spirits and physical dimension as a single whole, to critique of various areas of modern medicine will discussed in the field of ontological, epistemological methodology. Outcome of this research can be due to lack of disease diagnosis by doctors. Analysis that was done with the fields of psychologythe most fundamental right of a patient to be extracted. The method used in this study is analytical - descriptive which uses philosophical texts, are studied comments Islamic scholars. Insist on medical current method, the rejection of the two-dimensional of human in practice areas, denial of the connection between soul and body and interaction effects between these two and also medical specialization that result the review is to replace the entire review nothing more than real rights abuses patients and is ignoring medical ethics. Insists on such a procedure will lead to lack of diagnose diseases and provides prescribing the destructive drugs. This article a descriptive analytical research method. It seams to be achieved Patient Rights only with regard to the two-dimensionality of human. Please cite this article as: Shiravand M, Ranjkesh M. Review and critique the Medical law With Explanation Philosophical Foundations of Islamic Scholars (Farabi, Ibn Sina, Mulla Sadra). Iran J Bioethics 2016; 6(20): 167-182.

METHODS OF PROPERTY ACQUISITION WITH DERIVATIVE TITLE AND LEGAL-LAW POSITION OF LAWSUITS FOR THE PROTECTION OF THE REAL RIGHTS IN THE ROMAN LAW AND CONTEMPORARY SYSTEMS OF LAW

Through ownership are expressed and born those socio-economic relations, which are called property relations. Like all social relation-ships with legal character and property relations are governed by the norms of law. The norms of law regulating property relations, forms the right with the same name. As a real right, property right represents those characteristics embodied even in the first: It is the full or complete right that allows the holder any legitimate power over the use of the item. It is elastic right, as right when it limits the powers of the owner due to other real right limited over item, automatically turn once again to its previous state, if that suppressed state, ceases or changes. It is autonomous and independent right, because does not exists, because of the existence of another parallel right with greater importance, but exclude it. It is absolute or eternal right that continues without interruption, to the extent till that the right does not become obsolete. In this case also born property disputes seeking court settlement and appeared the right of lawsuits and claims for protection of real rights for which will be spoken ongoing in this scientific work.

PRINCIPLE ON THE LAND REGISTER IN THE INTERPRETATION OF JURISPRUDENCE

For a longer period of time land registers in Bosnia and Herzegovina do not reflect the actual situation regarding property rights. The reasons should be sought in the poor quality of and inconsistent legislation that allowed non-registered acquisition of real property rights. On the basis of such legislation earlier Yugoslav jurisprudence had permanently denied the acquisition of property rights based on the principle of trust in the land registry. A new definition of the principle of trust, which implies the protection of the rights acquired on the basis of incorrect and incomplete land registry status, was introduced with the entry into force of the new entity laws on land registry. The main intention of the legislature is reaffirmation of the land registry and its basic principles, which is a precondition for faster and easier real estate transactions. However, the new law provides for real solutions that prevent the full application of the principle of trust, which results in the adoption of different and unequal judicial decisions. The paper presents analysis of such legal solutions, also defects that generate the emergence of different concepts of law are detected, and proposals de lege ferenda are listed in order to create the legal conditions for uniform jurisprudence.

Contract of Sale of Agricultural Land under the Provisions of the Civil Code

The contract is the most widespread juristic instrument in the civil circulation of a market economy. The main juristic and commercial acts of different subjects in the conditions of the market economy are embodied in a contract. The contract is one of the ways how to gain ownership and other real rights by being an instrument of circulation of the goods realized by the contracts of sales, donation, exchange etc. The sales contract of sales was recognized as such since the times of the Roman Right and it continued to be elaborated until the present days. In its early origin, the most ancient form of sales consisted in the exchange of goods with other goods. The sales contract used to be also one of the most common agreement in the Albanian traditional right. The contracts which were more diligently protected and better known, were related to the sales. According to the traditional right, object of the sales contract could be the mobile and immobile goods. The definition of the contract according to the present Albanian legislation, is provided in the Civil Code in the article 659, according which the contract is a juristic act through which one or more parties create, change or terminate a juristic relation. The contract is one of the forms of gaining the ownership and other real rights by being an instrument for the circulation of goods realized by the contracts of sales, donation, exchange etc. The contract is also one of the sources of obligation, in other words, an instrument through which one gains the right to the others` obligations. Depending on the sales object, the contract has some specifics. The sale is a mutual beneficial contract. It is consensual, which means valid from the moment of achievement of the parties` agreement. In some cases, the law demands that the sales contract is formal and registered. The contract of sale in many cases has caused many problems which stand at the roots of conflicts that should be dealt with and that require solutions in different legal ways. Therefore, it is important to study and treat these contracts and the problems that associated to them with regard to the institutions of the right and the national and/or international transactions. DOI: 10.5901/ajis.2016.v5n1p277

New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law

This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.

New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law

This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.

(Re) Positioning Socio-Economic Rights as Real Rights: A Response to Sceptics

In place of a unitary international bill of rights, there are two international covenants. This has given rise to the misleading impression that some rights may be less important than other rights and that certain rights are justiciable while others are statements of political principle. This paper tries to respond to the critics of socio-economic rights by (re)-addressing the concerns raised and re-asserting the indivisibility and inter-dependence of human rights across regions and societies. Specifically, this paper addresses issues of justiciability, lack of minimum standards, resource constraint, monitoring and implementation.

From Registration of Deeds to Registration of Title: A History of Land Registration in Scotland

The origins of land registration in Scotland lie in a series of statutes of the sixteenth century. A later Act of 1617, still in force today, set up a national system of deeds registration. There was a choice between registration in a local register or in a central register in Edinburgh (the General Register of Sasines); and registration was constitutive of the real rights which the deeds sought to create. From the beginning the registers were open to the public. These early developments were a source of national pride. Towards the end of the seventeenth century, for example, Sir George Mackenzie commented that ‘Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers’. By the end of the nineteenth century, however, the pioneer country seemed in danger of being left behind. Beginning in South Australia in 1858, the ‘Torrens’ system of registration of title spread throughout the Australian colonies and then to many other parts of the British Empire. And in England, too, which had no national land register until the nineteenth century, the first hesitant steps were being taken for the introduction of registration of title. In the light of these developments, a Royal Commission was appointed in Scotland in 1906 to consider a switch from registration of deeds to registration of title but its members were unable to reach agreement. It was left to a second government committee, chaired by Lord Reid and reporting in 1963, to recommend the introduction of registration of title. The clinching argument was an expected reduction in transaction costs, and hence the prospect of cheaper conveyancing. Legislation to implement the Reid Committee’s recommendations was eventually passed in 1979. This paper explores the evolution of land registration in Scotland, analyses the key legal developments, and offers an evaluation of the move from registration of deeds to registration of title.

The Effect of the Original Acquisition of Ownership of Immovable Property on Existing Limited Real Rights

It is an accepted principle in South African law that movable property acquired in an original way (by operation of law) is not burdened by any limited real rights, as previous limited real rights are extinguished on the vesting of ownership (mobilia non habent sequelam). It is assumed by some South African writers that the same principles are applicable to the original acquisition of immovable property and that all existing limited real rights fall away on original acquisition of ownership. In this article the nature of limited real rights to immovable property is examined, and the notion that ownership is the "mother" right on which all limited real rights are based is scrutinised critically. The nature and establishment of limited real rights are used to distinguish between the essence and effect of limited real rights in the case of immovable property. The recognition of limited real rights as constitutional property is used as a further argument that limited real rights cannot be extinguished automatically by the original acquisition of immovable property, as such common law or statutory measures will constitute an arbitrary deprivation of property in terms of section 25 of the Constitution. The statutory provisions regarding limited real rights in the case of prescription and expropriation are then analysed as an indication that it is not a general principle that limited real rights are extinguished automatically on the original acquisition of ownership of immovable property.

Re-Appraising the Significance of 'Third-Generation' Rights in a Globalized World

Some forty years after they were initially proposed, many so-called “third-generation” rights — including rights to development and a healthy environment — are either languishing or have been left for dead. In the global North in particular, such rights have been met with a degree of hostility and derision, generating more controversy and contentiousness than consensus. Meanwhile, the gap between the mainstream human rights regime and some of the most pressing humanitarian issues of the twenty-first century appears to be growing. Problems of crushing poverty, radical inequality, pervasive economic and structural violence, climate change and ecological collapse often seem to elude protections of earlier generations of rights, rooted as they are in paradigms of a state-based and mercantilist world that has long been eclipsed by the forces of globalization. Given the suffering inflicted by radical poverty, inequality and environmental devastation, it would not be going too far to say that rights to development and a healthy environment are true survival rights that likely would have long been understood as preemptory norms of international law were the guardians at the international legal temple forced to walk a mile of the shoes of those deprived of them. In this chapter, I will argue that if further development of and acceptance of these rights as “real rights” is not without challenges, their effective dismissal in many quarters during previous decades represented a wrong turn for the international human rights regime and movement as a whole. Renewed engagement with third-generation rights is critical to the future of human rights because: (1) they can help to address grave threats to human security in the changing landscape of the twenty-first century; (2) they challenge traditional conceptual boundaries of human rights law that may help push the field forward in ways better adapted to a globalized world; and (3) forging greater consensus around the meaning and significance of third-generation rights would help further a sense of human rights as a shared global project. While taming power in times of globalization is a task with many dimensions, revitalizing the debate around third-generation rights should be an important part of the landscape.

A Historical Perspective on the Unification of Private Law and the Future of the Civil Code

China has a long tradition of legal codification. In looking at the unification of private law, we need to follow three historical threads: the historicity of law, the rationality of private law and the rules governing the growth of private rights. Following on from and amending the Draft Civil Law of 2002, we can use restorative methods to formulate a nine-part civil code suited to China’s national circumstances. The nine parts comprise the General Principles of Civil Law; Marriage and Family Law; the Law of Succession; Real Rights Law; Intellectual Property Law; Contract Law; Employment Contract Law; Tort Liability Law; and the Law of the Application of Law for Foreign-related Civil Relations. With this goal in mind, we can adopt a four-step legislative process: firstly, integrate the Marriage Law and the Adoption Law to form a unified Marriage and Family Law; secondly, include Employment Contract Law as a separate section of the civil code; thirdly, include Intellectual Property Rights Law as a separate section of the civil code; and fourthly, amend the General Principles of Civil Law so as to integrate Personal Rights, the General Principles of Property Rights (the General Principles of Obligation), the General Principles of Commercial Law, etc. The civil code formed on this basis possesses historicity, flexibility and contemporaneity, and would become an important constituent in the restatement of Chinese civil life and the remolding of the Chinese system of law.