Real Rights Research Articles

Equity Transfer Guarantee under the Civil Code

Equity transfer guarantee is the frustration cost generated by the principle of numerus clausus of real rights. Because the legal types of guarantees cannot meet the needs of the parties, it is a product generated by practice. Before the promulgation of the Civil Code, scholars believed that "transfer guarantee" was invalid because it violated the "principle of numerus clausus of real rights" and the "principle of prohibition of liquidation". However, Article 388 of the Civil Code provides a "new life" for (equity) transfer guarantee. Whether adopting the "ownership structure theory" or the "guarantee right structure theory", the exercise of the rights of the transferee in equity transfer guarantee should be restricted by the parties' agreement and the purpose of guarantee. When the debtor is unable to pay off the debt, the creditor can realize the guarantee by adopting the “attribution liquidation type” method.

환경침해에 대한 유지청구의 인정 근거로서 민법 제217조에 대한 고찰

As society develops and becomes more complex, damage caused by environmental infringement activities such as soil pollution and waste pollution is increasing. Environmental issues are considered an important key to determining our future. In the case of damage caused by environmental infringement, the first and foremost remedy is to claim compensation for damages afterwards. However, once damage caused by environmental infringement occurs, it is difficult to recover to its original state, and even if it is recovered, it is bound to take a lot of time and money. For this reason, proactive prevention is more important than follow-up relief in environmental infringement problems. Generally, an “injunction” is presented as a preventive remedy against environmental infringement. An injunction is the right to demand a certain action or inaction from the perpetrator when damage is occurring or is likely to occur due to environmental infringement. However, since it entails the prohibition of certain acts, it can excessively restrict the property rights of the perpetrator. Therefore, a clear legal basis is necessary to recognize an injunction. There are various conflicting views on the legal basis for recognizing an injunction, including the perspective that it is based on right to claim real rights, the perspective that it is based on environmental rights, and the perspective that it is based on personal rights. Supreme Court considers right to claim real rights as the basis for an injunction. The prevailing view also considers right to claim real rights as the basis for an injunction. It is a general interpretation of civil law that Article 217 of the Civil Code cannot serve as the basis for an injunction against environmental infringement, given that it is a regulation established with reference to Article 906 of the German Civil Code and pertains to neighborly relations. Article 217 of the Civil Code imposes an active duty on landowners to prevent infringing activities. Therefore, the interpretation of Article 906 of the German Civil Code, which is structured to limit the scope of the victim’s right to demand the removal of interference, should not be directly applied. Article 217 of the Civil Code provides a limited description of types of environmental infringement and imposes a duty on landowners to prevent infringing activities. Therefore, this paper aims to examine Article 217 of the Civil Code from a new perspective, departing from the traditional interpretation.

ABOUT THE ESSENCE OF LEGAL CATEGORIES "LEGAL STATUS" AND "LEGAL POSITION"

The article examines the essence of the legal categories "legal status" and "legal position", the meaning of which has not yet received precise regulatory regulation, and therefore disagreements arise between scientists about the application of such concepts in scientific circulation. To determine the meaning and correlation of these categories, it is proposed to resort to the philosophy of law and, in particular, to the comprehensive theory of law, which allows, on the basis of a universal method, to obtain objective and complete knowledge, without idealizing legal phenomena and without allowing the superiority of any legal theory. In its context, the essence of the legal status and legal position is revealed, according to which the legal position reflects the set of real rights, duties and responsibilities of the subject established by the rules of law, associated with specific legal facts that arise in the process of legal relations in everyday life, while the legal status is stable, legally enshrined character, representing a stable, static legal state and at the same time being the initial level of development of the legal position. In conclusion, the author comes to the conclusion that knowledge of the essence of a number of legal phenomena goes beyond the narrow legal understanding of it, therefore, to obtain complete and objective knowledge it is necessary to use a philosophical and legal approach.

Establishment of the Right of Habitation Through Wills: Impact on Real Rights

Establishment of the Right of Habitation Through Wills: Impact on Real Rights

무효등기유용의 효력 - 대전지방법원 2016. 12. 13. 선고 2016나105785 판결(대법원 2022. 7. 28. 선고 2017다204629 판결의 원심판결), 대법원 2009. 5. 28. 선고 2009다4787 판결 -

Traditional precedents and the prevailing view hold that regarding the usefulness of invalid registrations, if there is a third party with an interest in the registration before the agreement on its usefulness, the agreement is not effective in relation to that third party, and within that scope, the registration made useful is considered invalid as it does not correspond to the actual legal relationships.
 The decisions in question judged that in cases where a provisional registration, which is invalid, has been utilized to complete a final registration or a provisional transfer registration, (a) the utilization of the registration cannot be claimed against a third party with an interest in the registration, such as a provisional seizure creditor, but (b) among the parties to the agreement of utilization, the validity of the utilization agreement and the registration made useful can still be claimed. However, in the situations addressed by these decisions, the provisional seizure creditor, who is a third party with an interest in the registration, can only request the cancellation of such provisional registrations on behalf of the debtor (one of the parties to the utilization agreement) and therefore, cannot claim the invalidity of the utilization agreement and the registration made useful against the parties to the invalid registration utilization who cannot oppose them.
 However, the conclusion of (b) is incorrect, and therefore, the conclusions of the decisions in question cannot be considered correct. That is, the conclusion that in the presence of a third party with an interest in the registration, the agreement of utilization and the registration made useful are invalid only in relation to that third party, and the validity of the utilization agreement and the registration made useful can still be claimed among the parties to the utilization is not acceptable as it acknowledges the relative effect of real rights. When there is a third party with an interest in the registration, the utilization of an invalid registration should not be recognized. It is not that the validity of the agreement of utilization and the useful registration “cannot be claimed only against the third party with an interest in the registration” and “within that scope,” but rather, “in cases where there is a third party with an interest in the registration,” the agreement of utilization and the useful registration, not corresponding to the actual legal relationships, should be considered “invalid against everyone.” Here, “everyone” includes the parties to the agreement of utilization (the counterpart).

2023년 민법(물권법 및 채권법) 중요 판례 평석

In this paper, among the major precedents of the Supreme Court on civil matters in the year of 2023, I analyzed the meaning and contents of 7 important decisions (focused on the law of real rights and claims). The Supreme Court explicitly ruled for the first time that in the so-called ‘mutual deprivation of the possession of his/her property,’ the claim for recovery of possession by the preceding encroacher could not be allowed. The Supreme Court repeatedly has held that claims by road site owners to local governments for land handover, road demolition, and traffic closures are, in principle, an abuse of rights. With respect to the claims of unjust enrichment, the Supreme Court also repeatedly states the legal principles of abandoning the exclusive right to use and profit. Although the legal principle is controversial in academia, in practice, it is firmly established as a useful legal principle in determining whether a claim for return of unjust enrichment is accept or not between the road site owners and the local governments. The Supreme Court explicitly ruled for the first time that a third party who acquired ownership after the unauthorized rental act by a person having a right of retention can also exercise the right to demand the extinction of the right of retention. In the past three years, there have been three Supreme Court rulings, including the target judgment in 2023, on issues that have been mainly disputed in academic fields regarding the right to demand the extinction of the right of retention, and it seems that many of the major issues regarding the right to demand the extinction of the right of retention have been settled through precedents. For the second time since 2017, the Supreme Court applied the ‘high probability theory with respect to obligee’s right of revocation’ to determine whether a claim based on continuous product supply contract arising after a fraudulent transfer is a claim protected by the law of revocation of the fraudulent transfer.

Controversial aspects of the modern national doctrine of property law

The article examines the basic controversial aspects of modern property law in the context of an overview of the Ukrainian legislation and highlights the main ideas of national civil law scholars on certain controversial issues. They consist in identifying the debatable components in the spectrum of research in the field of national property law, assessing further effective areas of scientific research and reviewing the main provisions of civil law on property rights. The author presents the main scientific views and contradictions, as well as the legislator’s views on the concept and features of real rights; reviews the points of view of understanding the grounds for the emergence of real rights and their generalisation and systematisation in the context of current legislation; demonstrates the problems of classification of objects of real rights; considers the problem of classification of real rights; reviews the content of basic legal categories related to the term “protection of real rights” and briefly highlights the approaches to classification of methods and forms of protection of real rights.
 It is noted that in general, the issues of property law of Ukraine are well studied, and only some issues need to be investigated in the context of detailing already known studies or solving specific practical legal problems, in particular, legal conflicts and selection of effective methods and forms of property rights protection in a particular case under a particular set of factors or parameters. The main core of the discussions on property law is whether the notion of “thing” belongs to a particular concept and whether a wide range of property relations exists in modern social, economic and legal relations. Therefore, first of all, there are discussions about the need to enshrine in the legislation a clear definition of the content of the category “real right”, to create a detailed classification of both real rights and their objects, as well as to select an effective remedy for violated rights in accordance with the existing parameters (components) of the legal situation, etc.

DIGITAL INHERITANCE: TRANSFER OF REAL RIGHTS ACCORDING TO THE PROCEDURE OF UNIVERSAL SUCCESSION

Digital inheritance, encompassing the transfer of digital assets after death, presents a multifaceted challenge in today's interconnected world. This article explores the concept of digital inheritance, focusing on the transfer of real rights through the procedure of universal succession. Beginning with an examination of the diverse nature of digital assets, the article navigates the legal landscape surrounding digital inheritance and the potential application of universal succession. Challenges and considerations in digital inheritance, including legal recognition, privacy concerns, technological complexity, and cross-border considerations, are addressed. The role of estate planning and technology in facilitating digital inheritance is also discussed. Through proactive collaboration between policymakers, legal experts, technology developers, and individuals, effective solutions can be developed to ensure the orderly transfer of digital assets in the digital age.

Causal and Abstract Systems for the Transfer of Corporeal Movable Property – The (Un-)Importance of the Distinction in Light of Other Legal Mechanisms to Protect Transferees in Good Faith

Abstract 280The article rejects the (possible) assumption that what is important instead of the distinction between causal and abstract systems for the transfer of corporeal movable property is (only) the protection of transferees in good faith. Its analysis takes five existing abstract jurisdictions (Germany, Estonia, Greece, Scotland and South Africa) into account. It identifies and examines three legal mechanisms (other than the principle of abstraction) to shield parties in good faith from the invalidity of preceding contractual agreements, that is, firstly, bona fide acquisition, secondly, relative effects of invalidity, and thirdly, (instant) acquisitive prescription. The article demonstrates that the (practical) relevance of adhering to the principle of causality or abstraction almost exclusively depends on the rules of other areas of law (delict or tort, unjustified enrichment, compulsory enforcement and insolvency law) as well as the three legal mechanisms protecting bona fide parties analysed – hence, the distinction between causal and abstract jurisdictions is indeed of limited significance. However, the protection an abstract legal system is able to offer goes in three respects beyond safeguarding transferees in good faith: firstly, for parties in bad faith, secondly, in two-party situations, and thirdly, for third-party holders of limited/subordinate real (security) rights, which is why the (possible) assumption raised above is rejected.281

Bridging the Divide between Rights In Personam and Rights In Rem in Land Transactions: A Comparative Perspective of Australian and South African Law

In transactions relating to land a distinction is made between the creation of personal or contractual rights (rights in personam) by contract, and real rights (rights in rem) via the registration process. Historically, additional, or special rights or interests have been conferred upon the vendor and purchaser to provide protection for the time period between the creation of rights in personam and the creation of rights in rem. The focus of this article is to identify and examine the nature and operation of these protective rights and compare their application in Australia and South Africa. These protective rights are recognised in different ways in both Australia and South Africa via common law, equity and legislation. It is concluded that interim protective equitable rights in Australia and a special category of personal rights under South African law provide a bridge to the creation of full in rem rights.

Aspects of The European Jurisprudence regarding the Legal Nature of some Legal Acts that Have as their Object Real Rights over some Immovable Property

In the context of the interest in the development of real estate projects on land privately owned by the state or territorial administrative units, I wanted to identify how to ensure adequate protection of the developer's rights, namely what real rights can be established in their favor and which is their correct qualification. In this sense, a recent Decision of the CJEU drew my attention. Corroborated with other cases from the CJEU jurisprudence, but not only, I wanted to clarify the nature of the relations that arise between the owner and the developer, and, indirectly, the nature of the rights constituted in favor of the developers.

’n Perdepaspoort, logboek, mantel of die invecta et illata in huureiendom is geen objekte van ’n retensiereg van die besitter nie

A retentor derives no real security right from either an obligatory agreement or a real agreement with the owner of the thing he is retaining under his lien. Therefore he is not on the same footing as the holder of a right of hypothec, mortgage or pledge who is in possession of the thing of another as holder of a limited right of real security. With the exception of the pledgee with an additional entitlement agreed to by the pledgor to use the object of the pledge (pactum antichreseos), it is common to all the said limited real security figures that the retainer derives no entitlement to take advantage of the property of another in his possession. However, notwithstanding the fact that he may derive no benefit from his withholding of the object, he is responsible for preserving the object against damage or risk at his own expense as the de facto custodian of the object, although no agreement of bailment came about. It would be wrong to assume randomly that all examples of rightful retention of another’s goods are examples of liens. It may also be the entitlement of a limited real security right such as the tacit hypothec of a landlord or patron of a restaurant. The ius retentionis of the holder of a lien is merely the limited entitlement of the creditor without any preceding agreement between the owner of the object being retained and the creditor entitling the latter to retain it as long as the owner as debtor is in default of paying his dues to the holder of the lien for costs incurred by the latter regarding the object of the lien. No lien comes into play unless the required nexus exists regarding the parties involved and the object retained. In contrast, in the cases of a tacit hypothec of a landlord or innkeeper, there is no question of any coherence or nexus between the claim of the landlord to the invecta et illata or hotel-keeper to the coat of the guest as creditor and the object being retained. Subject to special statutory regulation, no limited real security right can be established on an integral part of a thing. Only a thing that meets all the requirements as an object of a real right can be the object of a real right and this also applies to a limited real right. Possession of a thing requires exclusive control over it and not simply possession of an integral part or symbol of the object of the debtor’s real right of ownership if the object is classified as a movable. Possession is, however, no requirement for a derivative mode of acquisition of a real right on immovable property. It is submitted that mere possession of the passport of a horse or the logbook of an aeroplane does not suffice as symbolic possession of the horse or the aeroplane. Withholding part of the due performance under a reciprocal agreement until the counterparty has fully performed or because by agreement the debtor wishes eg to occupy the new house for three months to see what defects in the construction comes to light before delivering the agreed retention money to the builder, is no example of a lien. The retaining of the agreed portion of the final performance by the mandator is neither an entitlement of a limited real right nor a lien. This is part of the agreed terms of the building contract and any attempt by the creditor to compel performance before the condition had been met can be averted with the exceptio non adimpleti contractus.

PRAVNI OKVIR O NAKNADI KOD PRAVA GRAĐENJA – REFLEKSIJE NA INVESTICIONE PROJEKTE

The Law on Real Rights, in the frame of legal inovations is regulated by new instutute the Right to build. As an institute it was introduced in legal order with a basic intention on the way of implementation the greater level of cooperation between different legal entities. Unfortunately since 2014 until today it has been shown that Right to build, as a new institute of Real Rights, still has not achieved expected role. The present work aims to analize causes of that condition, with an intention how to improve implementation of Right to build in legal order in Bosnia and Herzegovina. Among everyting else, the practice has shown that the obligatory compensation in the case where the property owner legal subject of public law, is one of the main reasons why the Right to build is not implemented enough in Bosnia and Herzegovina. Our future goals are to detect the causes, and propose precise solution in order to increase implementation of this very important legal institute of Real rights. Keywords: Right to build, compensation, investments

Aantekeninge: Afgeleide wyse van eiendomsverkryging op ’n onroerende saak gehou in mede-eiendom vereis steeds ’n saaklike ooreenkoms met álle mede-eienaars

Aantekeninge: Afgeleide wyse van eiendomsverkryging op ’n onroerende saak gehou in mede-eiendom vereis steeds ’n saaklike ooreenkoms met álle mede-eienaars

The fate of an easement in the transformation of a dominant land parcel

The article is dedicated to the detailed analysis of the Ruling of the Third Cassation Court of General Jurisdiction dated February 16, 2022, No. 88-3377/2022, as well as several additional acts of courts related to this Ruling. In this case courts discuss the essence of an easement, real nature of an easement, fate of an easement in the transformation of a dominant land parcel or a servient land parcel, protection of an easement, termination of an easement. The author of the article critically evaluates these reasonings, referring to the norms of operative Russian and foreign legislation, current courts practice, doctrinal sources, historical materials, projects for reforming Russian legislation. The case under discussion is remarkable because several courts in support of their positions refer among others to the Model Act “On Limited Real Rights”, approved by the Inter-Parliamentary Assembly of the CIS Member States on November 27, 2015. The author of the article states the question: is it permissible to use the Model Act to resolve a particular case on the territory of the Russian Federation? And the author of the article gives the positive answer to the question, as far as the courts do not apply the Model Act directly, but resolve the case based on the general principles and meaning of civil law, requirements of good faith, reasonableness, fairness. Therefore, the Model Act is applied by the courts as the act that reflects such principles and meaning, for this reason the reference to the Model Act has a completely acceptable and even welcomed illustrative character. The analyzed case also confirms the idea that the modern regulation of easement relations in Russia indicates the existence of numerous theoretical and practical problems in this area. The multiple recommitment of the case to the appellate court, enormous controversy about the fate of the case in the legal community — are clear confirmation of this.

Правовые основы применения цифровых технологий при регистрации прав на природные ресурсы

Currently, digital technologies and artificial intelligence are increasingly being used in our country to solve public administration issues. One of the tasks of public administration is to control registration activities in the registration of ownership and use rights to natural resources. The current registration procedure is characterized by time costs, paper turnover, corruption risks, and the possibility of falsification of documents. The purpose of this article is to analyze the registration process of registration of real rights to natural resources and formulate proposals for improving this process through the prism of digital transformation. In this study, we have determined that electronic registration is a positive phenomenon that solves many negative issues of the current registration process, simplifying it and making it more open and accessible; however it does not fully satisfy the current needs of society in the field of legal rights registration. The authors of the article substantiate the need to use digital technologies in the registration process through the use of the block chain process. The importance of this study lies in the fact that it formulates the idea of moving from "electronic registration" to "digital registration", with specific proposals for changing legislation in this area.

Правовые основы применения цифровых технологий при регистрации прав на природные ресурсы

Currently, digital technologies and artificial intelligence are increasingly being used in our country to solve public administration issues. One of the tasks of public administration is to control registration activities in the registration of ownership and use rights to natural resources. The current registration procedure is characterized by time costs, paper turnover, corruption risks, and the possibility of falsification of documents. The purpose of this article is to analyze the registration process of registration of real rights to natural resources and formulate proposals for improving this process through the prism of digital transformation. In this study, we have determined that electronic registration is a positive phenomenon that solves many negative issues of the current registration process, simplifying it and making it more open and accessible; however it does not fully satisfy the current needs of society in the field of legal rights registration. The authors of the article substantiate the need to use digital technologies in the registration process through the use of the block chain process. The importance of this study lies in the fact that it formulates the idea of moving from "electronic registration" to "digital registration", with specific proposals for changing legislation in this area.

МІЖМУНІЦИПАЛЬНЕ СПІВРОБІТНИЦТВО ЯК ІНСТРУМЕНТ ЗМІЦНЕННЯ СИСТЕМИ НАДАННЯ МЕДИЧНИХ ПОСЛУГ НА МІСЦЕВОМУ РІВНІ

Background . The article examines the advantages and problematic aspects of intermunicipal cooperation in the field of health care, which should become a powerful tool for improving the quality of the provision of medical services at the local level. Methods . To achieve the goal of the research, a number of general and special scientific methods were used, namely: methods of analysis and synthesis, abstract-logical method – for studying scientific sources, forming conclusions and defining debatable positions; empirical method – for describing the experience of inter-municipal cooperation; statistical method – to highlight dynamic and structural changes in the process of implementing inter-municipal cooperation in the field of providing medical services. Results . It is proven that the reform of public administration in the direction of decentralization allowed territorial communities to obtain real rights to independently solve issues of local importance. Sectoral changes, including in the field of health care, became an important basis for the deployment of decentralization processes. At the same time, the increase in rights and responsibilities became a real challenge for many local self-government bodies, which lacked resources, experience, and human resources. Therefore, inter-municipal cooperation, when material and financial resources and management experience are combined, becomes a necessity to provide the population with quality services. The need for consolidation of efforts is especially relevant in the modern conditions of martial law. People's need for medical services is growing, and the real capabilities of territorial communities, on the contrary, are decreasing due to the direct destruction of medical infrastructure, the impact of economic shocks, a decrease in revenues to local budgets, a shortage of medical workers, etc. It was determined that cooperation between municipalities is an ancient tradition of European countries. Currently, this provision is enshrined in the regulatory and legal documents of Ukraine. The legislator regulated the essence of community cooperation, the basic principles and main forms of its implementation, and defined the procedure for initiating cooperation. The main factors of the deployment of inter-municipal cooperation, advantages and problems of inter-municipal cooperation in the field of providing medical services are highlighted. Conclusions . The current situation with the conclusion of inter-municipal cooperation agreements in the medical field has been studied. Insufficient activity of local self-government bodies in this area was identified and proposals were developed that would contribute to strengthening the cooperation of territorial communities in the provision of health care services.

Помилки при формування масиву інформації реєстру речових прав на нерухоме майно

Помилки при формування масиву інформації реєстру речових прав на нерухоме майно

ALGORITHMS FOR OBTAINING A RESIDENCE PERMIT AND PURCHASING REAL ESTATE FOR UKRAINIANS UNDER SPECIAL MARTIAL LAW CONDITIONS

Approximately a quarter of the surveyed Ukrainian refugees and IDPs said that they plan to stay in their new places of residence, in the countries of their choice, obtain a residence permit, and purchase real estate. The legislation of Ukraine, like that of other countries, provides that ownership and other real rights to real estate, encumbrances, as well as their creation, transfer and termination, are subject to state registration. Rights to real estate subject to state registration arise from the moment of such registration. In essence, state registration is the fact of public recognition by the state of a person's right to real estate by entering information about it into the State Register of Real Property Rights. However, each country has its own regulatory requirements. Therefore, research into real estate registration procedures and algorithms for obtaining a residence permit is relevant. The study is aimed at identifying the peculiarities and algorithms for obtaining a permanent or temporary residence permit by investing in real estate or business in the country of study. real estate registration for Ukrainian citizens who went abroad during the military operations and intend not to return home but to integrate into other countries. The research objects are 9 countries of the world, namely: Turkey, Greece, Montenegro, the United Kingdom, Cyprus, the United Arab Emirates, the United States, Portugal, and Hungary. These countries are characterized by: attractiveness in terms of residence, democratic development, improvement of the quality of service provision and strengthening of trust in the government by the population, the public and the private sector. The information base of the study was based on collections of scientific papers, periodicals, and Internet resources. Summarizing the results of the study, we have constructed a diagram of the cost of investment real estate for permanent residence for the selected countries. The largest investment is required in the UK, while Montenegro has no requirements for real estate investment at all. 
 It is determined that the procedure for obtaining the right to temporary or permanent residence through investment and registration of real estate may vary, and the package of documents required for registration also differs depending on the specific object and the circumstances of the rights to it. However, there are simple general recommendations that can help protect real estate rights and save time and money: compliance with the country's legislation; creation and proper operation of a unified registration system. This analysis will help to identify ways to implement foreign experience in Ukraine's activities in the future. The practical content is indicated by the target orientation of this study for Ukrainian citizens who are forced to stay abroad, urban planning and cadastre specialists.