Real Rights Research Articles

Analysis of the Issue of Real Rights for Security in the Perspective of Bankruptcy Law

Objectives: China’s opening to the outside world is getting higher and higher, which effectively promotes China’s economic development. Under such economic development background, more and more different kinds of economic situations appear in the market. Methods: The continuous progress and development of society has provided good conditions for the perfection of bankruptcy law and guarantee law. In the process of dealing with collateral in bankruptcy law, the complexity of its environment leads to the interaction between bankruptcy law and guarantee law. Results: From the perspective of law enforcement, there are still some incompatibilities between China’s guarantee law and bankruptcy law to be solved. This paper discusses the real right for security from the perspective of bankruptcy law, and analyzes the issues related to the development of bankruptcy law and security law that affect the real right for security, aiming at providing assistance for the healthy and orderly development of the industry. Conclusion: In the research, we need to pay close attention to the various processes of bankruptcy procedure and the implementation methods of real right for security, so as to ensure the responsibility system of real right protection.

On the legitimacy of restoring the institution of an annuity right in rem on real estate

The article presents the basic solutions to be applied in the so-called annuity real rights. These are limited real rights (iura in rem), which permit obtaining certain revenues from real property on a regular basis. Their essential purpose is to secure specified periodical benefits, primarily those of a pecuniary nature. These rights show some similarities, on the one hand, to pledge-type rights (especially mortgage) and, on the other hand, to easements. Currently, no annuity real charges of any kind have been regulated under the Polish civil law (since the entry of the Civil Code into force in 1965), as they were perceived, albeit incorrectly, as a reminiscence of the epoch of feudalism. However, they are still popular in other European civil law legislations, for example in the German, Swiss, Austrian, Spanish, Czech, Estonian, Slovenian or Croatian laws. The prototype for this category of rights is the real burden (German: Reallast). This paper presents various solutions for the latter institution as well as related institutions, such as the Swiss “annuity letter” (German: Gült, French: lettre de rente) and the German annuity land charge (German: Rentengrundschuld). Different concepts for the legal nature of the annuity rights have been presented, in particular the German real burden, which formed the basis for proposals of solutions in the work of the Polish Civil Law Codification Committee at the beginning of the 21st century. The potential usefulness of the real burden rights indicated in this article confirms the legitimacy of introducing this type of legal institution into the Polish law.

КОНЦЕПЦІЯ «ПОЛІГРАФА ШАРІКОВА»: ПРОБЛЕМНІ ПИТАННЯ ОНОВЛЕННЯ ЦИВІЛЬНОГО ЗАКОНОДАВСТВА УКРАЇНИ

The article substantiated that by its legal nature the Concept of updating the Civil Code of Ukraine reflects exclusively the personal views of a small group of scientists, the authenticity of which is not confirmed by the results of scientific research; the document does not have the status of a scientific publication and has not passed the procedure for discussion in the professional environment. The private nature of the Concept preparation excludes its use as a basis for legislative work of the Verkhovna Rada of Ukraine. It has been proved that the Concept has methodological problems, and the proposals formulated in it contradict the Constitution of Ukraine, violate social guarantees and do not agree with the norms of the current legislation, in particular: the Law of Ukraine “On Local Self-Government in Ukraine”, the Tax Code of Ukraine, the Land Code of Ukraine, the Law of Ukraine “On Education”, the Law of Ukraine “On Protection of Economic Competition” etc. It was emphasized that the implementation of certain provisions of the Concept for updating civil legislation of Ukraine will lead to the impossibility of practical implementation by local self-government bodies of functions in the field of housing and communal services, consumer services; in the field of culture, health, education, physical education and sports and the commercialization of these services. This will lead to a rapid increase in the level of prices for housing and communal services, the complete destruction of the system of free medical care, as well as free preschool, complete general secondary and professional (vocational) education. Since more than 60% of the population of Ukraine is currently below the poverty line, a significant increase in prices for utilities, the transfer of healthcare institutions, as well as preschool, general secondary and vocational (vocational) education exclusively on the commercial basis of management will deprive the vast majority of the population of the financial opportunity to pay their market value, which will lead to a further decrease in living standards and deterioration of the demographic situation in Ukraine, which is already unsatisfactory. In addition, the population of Ukraine will be limited in access to the services of cultural, physical education and sports institutions. It was concluded that the refusal of the real right of economic management and the right of operational management will create preconditions for depriving territorial communities of communal property and the impossibility of fulfilling their constitutional powers, as well as to enrich a small group of persons of private law and the final impoverishment of the rest of the population of Ukraine.

Legal fact as the grounds of real rights termination to someone else's things

The article is devoted to the study of the grounds for the cessation of real rights to foreign things in order to further develop the theoretical foundations for the settlement of the transition of real rights. The foundations of the emergence of legal relations are analyzed, the elements of which are real rights to foreign things, and the legal facts of their termination are compared. The article describes the will of the subjects of real relations on termination of real rights as a dispositive factor, as well as comparative orders relating to circumstances that are not based on a contractual basis. The contract may be a legal fact that is the basis of the emergence of obligatory and real legal relations. The grounds for the emergence and termination of real relations are largely dependent on the peculiarities of the object, the real relations and the purposes of their use, where depending on the type of real rights to foreign things will be determined by their legal regime. The legal relationship that arises on the basis of the contract is mixed in nature, covering the obligatory and real legal nature of its components. Investigated that the administrative act of the authority of power can not act as a direct basis for the termination of real relations that arose on the basis of the contract without its termination. Therefore, the administrative act recognize the element of the legal composition, which ends with the termination of contractual relations. The refusal to use someone else's property should be considered as a subjective real right of any subject of real rights, which is given this civil law. The author came to the conclusion that in the event of the occurrence of the circumstance provided for a hypothesis of the legal norm, it can be considered as a legal fact, which is associated with the termination of real relations. The legal consequences of the mechanism of law accession are the appointment of certain rights and responsibilities of participants in civil legal relations or legal relations as a whole. In view of this, in the work it is proposed to improve the classification division of the grounds of termination of legal relations with strangers.

The Right to Property and Property Rights as Objects of Possession, which is Committed by the Abuse of an Official by his Official Position (Part 2 of Article 191 of the Criminal Code of Ukraine)

The article analyzes the criminal and civil understanding of the concepts of "foreign property", "right to property" and "property law". Different meanings of these concepts are considered. Differences in criminal and civil law understanding of these concepts and their relationship are established.
 It is substantiated that the subject of possession provided for in p. 2 art. 191 of the Criminal Code is only someone else's property, not the right to property and property rights.
 It is substantiated that the concept of "property" in the relevant compositions of criminal offenses against property performs other functions than the concept of "property" in civil law, and that the criminal law understanding of property and civil law definition of property in p. 1 of art. 190 of the Civil Code are unequal (different).
 On this basis and taking into account the legal positions of the Supreme Court and the Supreme Court of Ukraine, the conclusion is formulated that the subject of possession in the relevant composition of criminal offenses against property can be only someone else's property, not the right to it or not a property actions.
 The concepts of “property right” and “right to property” are not identical, and the concepts of “property right”, the term "right to property" constitute real rights on the property, but no other rights that are not property.
 In view of this, the possession by an official by abusing his official position the right to property or, in other words, the possession by an official by abusing of the right to property cannot be qualified under the relevant part of art. 191 of the Criminal Code.
 In addition, the article analyzes the definition of "right to property", which affect the recognition of the right to property as a kind of "subject" of the so-called "selfish abuses" under art. 364, 364-1 of the Criminal Code.
 It is emphasized that when an official possession the right to property committed by abusing his official position, he cannot qualify under the relevant part of art. 191 of the Criminal Code, as there is no such mandatory feature of p. 2 of art. 191 of the Criminal Code of abuse as someone else's property that is the subject of abuse.

The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part One: Statutory and Theoretical Distinction between Real Rights and Personal Rights

Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights.

Property Rights to Land Plots in the Russian Federation and Great Britain: Dogmatic Approach against Pragmatism

Comparison of the phenomenon of property rights in two unrelated legal systems is an interesting task from the point of view of methodology. A simplifying factor is that English law in its origins was strongly influenced by Roman law, but developed apart from continental legal systems. As a result, using the same terminology in the field of property rights in the Russian Federation and Great Britain, different views have been formed on the nature of property rights to land plots. The paper analyzes the legal structures of real law in both countries and achieves the goal of clarifying the content of controversial terms and classifications existing in the real law of the Russian Federation; taking into account foreign experience the author determines the prospects for the development of domestic concepts of real and absolute rights. The admissibility of comparing property rights to land plots is predetermined by the use of similar legal techniques in both countries, as well as terminology borrowed from Roman law. The paper substantiates the thesis on the admissibility of using the analytical concept of law of W. N. Hochfeld as a comparative legal method of research. Fundamental differences in both legal systems will be in the idea of the object of property rights to land plots, the place of property rights in the classification of rights, in the structure and content of the corresponding legal relationship. Taking into account the analysis of the legal regulation of property rights to land plots in the two countries, theoretical provisions substantiate the conclusion about the need to preserve the idea of the absolute nature of property rights in domestic law.

Peran Gender Dalam Mempertahankan Tradisi Merarik (Kawin) Adat Suku Sasak Dusun Sade Nusa Tenggara Barat

This study aims to determine the background of the tradition of drawing sasak sade tradition, gender roles and the reasons and efforts made by the Sasak Sade tribe community with the tradition of eloping or attracting Sade sas tribes in preserving it. The research method used in this research is the descriptive qualitative research method. The results of the study found that. Elopement or eloping in the background of the tradition of eloping or eloping in the village of Sasak Sade is the Customary Law of Sasak Sade, the legend of the princess Mandalika (princess nyale), to respect women. The tendencies in society and family to distinguish between gender roles include the positioning of the different roles of boys and girls, both in status, inherent roles, or in the real rights. Efforts to maintain the tradition of drawing or eloping in the village of Sade, the community holds a meeting once a month and the family also plays an important role in providing an understanding of the meaning contained in the tradition of eloping. As well as the reasons for maintaining draw or eloping can cause a sense of togetherness among all-female families. As a sense of respect for the dignity and dignity of a large family of women, as well as maintaining and respecting the customs and culture of ancestors

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.

Il diritto all’identità dei figli in due recenti pronunce della Corte Costituzionale e della Corte di Cassazione

The identity of the person is an essential and distinctive element of his individual heritage and constitutes a real right. Two recent decisions, one of the Constitutional Court of May 2020 n. 127 and one of the Supreme Court, of September 2020 n. 19824, provided an opportunity to reflect on the issue of protecting the identity of children. In the first case of the child born from insemination heterologous and, in the second, of the child born of an anonymous mother, because, in both cases, there are significant problems of balancing the right of identity with other relevant rights or interests.

조합의 재산귀속에 관한 연구 - 공동이행방식 공동수급체를 중심으로 -

After Enforcement Rules on the Operation of Joint Contracts was amended by Ministry of Strategy and Finance in Jan. 8, 1996, judicial opinions on how claims of construction costs shall belong to the partners of joint venture changed, but it was not clear. That is, if the parties express their intention to exclude the application of civil code provisions on the partnership-ownership, the claims of construction costs may belong to each partners separately. Subsequent judicial precedents did not come to a unified conclusion. In some cases it was concluded that the claims belonged to all the partners jointly, but in others it was not. In other cases of similar issues, while admitting that a joint venture is a civil partnership, obligations to return advance payment was settled separately by each partners. Contradictory precedents left the following questions: Is a joint venture a civil partnership? Is the legal nature of the civil code provisions on the partnership-ownership of partnerships compulsory or optional? In conclusion, can the claims for construction costs of joint ventures belong to each of the partners?<BR> Supreme Court en banc Decision 2009Da105406 decided May 17, 2012 made decisions that a joint venture is a civil partnership under civil code, and that the claims for construction costs of the joint ventures belong to each of its partners separately under special agreements of a contract for a construction work. But the Supreme Court Decision was not clear and still left the following problems; Which of the provision on partnership-ownership under civil code is interpreted as optional? Are these opinions generally applicable to a civil partnership? What does it mean that the attribution method on claims of a civil partnership can be laid down under special agreements of a contract for construction work?<BR> Experts in favor of the Supreme Court Decision say that it is based on the principle of freedom of contract. Opposite views, on the other hand, presuppose that the provisions of civil code, which define the method of belonging to the property of civil partnership, are compulsory. However, the specific solutions proposed by each opinion are various.<BR> The property of a civil partnership include everything with value as property. How this is attributed to partners is defined in § 271 (1) in part of Real Rights and § 704 in part of Claims. With regard to the relationship between the two articles, it is generally considered either that they duplicate one another or that § 704 is unnecessary. However, contrary to the opinion of the above theory, if § 271 (1) and § 704 can be assumed to have different meanings, § 271 could have the meaning of forcing only real right property to belong to partners, not all property of a civil partnership. So the attribution of claims of a civil partnership is determined by § 704. In short, the property of civil partnership as real rights is ruled by compulsory provisions on Partnership-ownership in Real Rights, the property of civil partnership as claims is ruled by a optional provision on Partnership-ownership in Claims.<BR> If such assumptions are allowed, the claims of a civil partnership, in principle, belong to the partners in accordance with § 704. However, if there are special agreements in the partnership contract that divide the claims of the civil partnership into partners, this implies the exclusion of § 704, so the attribution of the claims becomes as agreed by the partners. However, even if the special agreements exist in the agreement between the partnership and the third party, they do not define how the property of the partnership belongs. This is because matters related to the internal relationship of partnerships can be determined only by the terms of the partnership contract. These special agreements, in some cases, can only mean how third parties can implement their contracts.<BR> In conclusion, the meanings of Supreme Court en banc Decision in 2012 could be found as follows. First, as before, § 271 (1) is a compulsory provision. Second, § 704 is an optional provision. One of the cases where § 704 is applied is the construction costs of the joint venture. Third, the property of a civil partnership where § 704 is applied is different from that where § 271 (1) is applied. In addition, an opinion that makes clear that the legal nature of the joint venture is a civil partnership means the above conclusions are generally applicable to civil partnerships. However, care should be taken when reading the expression, “The claims for construction costs of the joint ventures belong to each of its partners separately under special agreements of a contract for construction work.” It means that partners own the claims for construction costs separately, not

Civil law consequences of object construction on a land provided for construction (superficies)

The article is devoted to the analysis of civil consequences of superfidence as a legal category of the Institute of Rights in Ukraine. The right to build a foreign land should be considered as a legally secured opportunity and ability of a person to carry out all kinds of urban planning activities on a land plot or acquired for such purposes. For construction, the person must have an appropriate legal title (superficies agreement) on the basis of which state registration and determine the boundaries of the area in nature in the terrain. Superficies rights to the land should be recorded in licensing documents for construction or declarations on the start of construction. Investigated that a new superficies acquirer and the owner of the land have the same rights and responsibilities that were provided for by the conditions of the previous supervisory superfiction. In this case, there is a succession of rights and obligations for a new superfidence, which accounted for the content of the previous agreement between the owner and the user (superficies). It has been found that the transmission of a land that is the subject of a superficies agreement between the owner and the user on the basis of a new agreement to another person should be carried out with the consent of the owner. Transfer without the consent of the owner of the land, which is subject to a superficial agreement to another person contradicts the basic principles of ownership, regarding the disposal of the object of real rights. A disadvantage is the fact that in the norms governing the legal consequences of termination of the right to use the land are not regulated by their onset in case of failure to reach an agreement between them, giving a solution to this issue to solve the court taking into account the circumstances of the case. During the study by the author, it is proposed to complement the norms of civil law on the transition of the right to use a land for construction from the Superficielity, after the start of construction, it is possible to provide permits to the acquirer for the construction of the relevant construction object. Key words: superficies, ownership, real rights, land, building object.

Perpetual usufruct as an instrument for strengthening socialist state property and contemporary legal effects in property law

The first part of this study presents historical reasons for introducing perpetual usufruct by the Management of Urban Areas Act 1961 and the Civil Code 1964. It begins with the general analysis that focuses on the changes of laws from the initial introducing development right and perpetual lease to ownership divided into periods and then usufruct of the state residential property. The author explains the mechanism of influence of the factors arising from communist ideology (Marxism-Leninism) on the proposed legal solutions particularly attributing a prominent role to socialist state property in the People’s Republic of Poland. Next, the official version of the perpetual usufruct’s role is also presented. The perpetual usufruct was introduced as a new real right which was to be attractive for citizens and enabled the state to administer areas in towns and settlements in accordance with a legal town development plan. The aim of the study is the explanation of the real function of the perpetual usufruct of residential lands in towns. The construction of perpetual usufruct was a result of referring to models of Soviet law. It was an instrument which was to protect socialist state property as well as to counteract a depletion of the accumulated state lands through a transfer of those lands for private persons. The perpetual usufruct also was to enable the socialist state to control how urban land was used. The perpetual usufruct was a result of the ideological and political principles of the socialist system in the People’s Republic of Poland, particularly strengthening socialist state property of lands. The perpetual usufruct was really a semblance of ownership of land. This was indirectly explained in the resolutions of the Supreme Court of 1968 and 1969. Therefore, in our times there are difficult legal problems also connected with the issue of granting property rights to perpetual usufructuary. The legal proposals of replacing perpetual usufruct with different rights still haven’t been introduced. The last part of this study expresses in a concise way the contemporary legal acts which were aimed at reducing the accumulation of lands which were let on a perpetual usufruct. Nevertheless, these acts weren’t always effective. The Act of 2018 on Transformation Perpetual Usufruct of Built-up Residential Lands into Ownership of those Lands is the last legal act concerning the discussed issues. In principle this act introduced the enfranchisement in accordance with the law for every perpetual usufructuary of built-up residential land. However, it didn’t eliminate the perpetual usufruct in Polish property law. The analysis in this paper proposes the thesis that the perpetual usufruct of residential lands (on a large scale) was never justified in an economy, but was only determined by ideological and political reasons in the People’s Republic of Poland.

Limited Proprietary Rights to Residential Premises in Russian and Foreign Civil Law

The right to housing is important and universally recognized. In foreign countries, in order to ensure the realization of the right to housing, in addition to the right of ownership, other limited proprietary rights are provided granting citizens with the right to own and use residential premises. The paper considers the limited proprietary rights to residential premises in France, Italy, Germany, Switzerland, Austria and Russia. It is established that the legislation of the abovementioned foreign countries enshrines real rights to use the residential premise, which, being a kind of usufruct (personal servitude), possesses specific features. They are facility feature (which includes residential premises), the authorized entity (which allows for a natural person) only, as well as the purposive character (this sets the right to stay in the residential premises for personal needs and the needs of his family). In Russia, there are problems of legal regulation of relations between the use of residential premises by members of the owner’s family and former members of the owner’s family who gave consent to privatization, which cause difficulties in practice and numerous disputes in the doctrine. The outcomes of the analysis of the proposed changes in civil and housing legislation make it possible to conclude that the discussed innovations are not able to solve the existing problems and contradictions.The author proposes to consolidate in civil legislation such a limited real right as the right to use residential premises, which is a kind of usufruct, which will combine all existing real rights to residential premises. The legal structure of the right to use residential premises is formulated, its content, the grounds for its occurrence and termination are set out.

Efectele partajului în noul Cod civil român: o (r)evoluție?

Joint possession and settlement needed revival in 2011, yet the Legislator did not do much about it. It took from jurisprudence the regulations regarding joint possession (in the broad sense) and simply built a legal regime that in no way can satisfy the economic and social needs of joint holders. And the possibility to enter a management agreement remains in a very theoretical level that is far from practical reality, where such an agreement between joint owners does not exist. Settlement – the place where joint owners end their joint possession – was the second item that required modifications. In 1864, the Legislator took the declarative effect of settlement from French law without an analysis of its consequences on the economic level. Families were protected, but third parties, holders of real rights on the joint goods were sacrificed. This made settlement unattractive and unwanted. In 2011 the Legislator correctly identified the problem and offered the solution – that had been adopted by the French legislator since 2006, even under the rule of the declarative effect – a real subrogation with a particular title: resettlement of the guarantee on the assigned goods. This is sufficient for the rights of guaranteed creditors to be maintained in all cases. With this, the right of each joint owner to fully and efficiently use his joint ownership right was insured. Was another change in this area needed? Apparently not. Nevertheless the Legislator unexpectedly decided in 2011 to renounce the fiction of the declarative effect. What did it replace it with? The translative effect of Roman law? No! It imagined a new effect of settlement: the constitutive effect. The shock of the change was mainly felt psychologically. At that time, the fiction of the declarative effect corresponded to a psychological perception according to which the heir held the goods directly from the decreased, perception that was well grounded after more than 140 years of existence. Just as the fiction of the declarative effect – in fact a rule born out of conjunction –generated numerous debates over centuries, the new constitutive effect of settlement was had to accept in notary practice. The cause? The fear that the new consequences of the constitutive effect will conflict with the imperative rules of the community of goods in the case of settlement parties who were married on the settlement date. Indeed, any community matrimony regime is able to absorb in the settlement estate any goods purchased or obtained with onerous title by any of the spouses. But, the joint ownership right of settlement was that of an own goods. Moreover, the whole settlement was disputing own rights of the married settlement party. The doctrine limited itself to announcing the introduction of the constitutive effect without building a detailed analysis of its effects on the matrimony regimens. On our part, we suggested, at first an exhaustive analysis of the consequences of the translative and declarative effect of settlement. The purpose was to identify a ‛natural’ legal side of settlement that is its constants. Then we proved that the constitutive effect should be unitarily interpreted and applied. First of all, settlement produces a replacing effect. The share is replaced with an exclusive ownership right. It is natural that the exclusive ownership right obtained by each settlement party has the legal nature of the share it replaces. In the marital community field, this is an own goods of the married settlement party. Then, in case of settlement with allowance – that is expected to generate even more controversies – we have shown that is division does not degenerate settlement in two legal acts: settlement and sale. The settlement party who paid the allowance does not purchase anything; the settlement party receiving the allowance does not sell anything. The Legislators does not authorize such an idea, especially now that we are on the realm of the constitutive effect, where the idea of an exchange between settlement parties is excluded. The constitutive effect of settlement with allowance should be unitarily applied. For the married settlement party, the payment of the allowance represents an obligation to give that has the legal nature of an own obligation. Only its execution is carried out by using common funds of the spouses. And the increase acquiring of the goods is not a purchase in itself as it is made in the same spirit of the replacement effect of the share.

The The Legal Operation of Liens: Theory and Practice

The legal operation of liens has been the source of academic debates for many years. Liens are traditionally classified as enrichment liens and debtor-and-creditor liens (contractual liens). In the instance of an enrichment lien the creditor (lienholder) has a contract with a non-owner and not with the owner (debtor) himself. Consequently, the creditor can vest a lien against the owner of the thing only on the grounds of unjustified enrichment. Enrichment liens are classified as real rights. In the instance of a debtor-and-creditor lien (contractual lien) the creditor (lienholder) has a contract with the owner of the thing and the contract is the basis for the liability of the owner (debtor) towards the creditor. Debtor-and-creditor liens are generally classified as personal rights. This classification causes confusion regarding the legal operation on the one hand of an enrichment lien as a real right and on the other hand of a debtor-and-creditor lien (contractual lien) as a personal right. This paper proposes that the origin of the legal claim for which the lien serves as security (unjustified enrichment or contractual) merely determines the debt (expenses) for which a lienholder can vest his lien and does not determine the classification of a lien as either a real right or a personal right. A lien can be described as a defence against the owner's rei vindicatio and is, in principle, enforceable only against the owner of the thing (security object). A lien can, however, also be enforced against parties other than the owner, including the creditors (who, for example, want to attach the thing subject to the lien) of the owner (debtor) and other real claimants. The enforcement of a lien against these parties is referred to as the real operation (third-party action) of a lien. This paper analyses the legal operation of a lien with specific reference to the debt (expenses incurred) secured by the lien, the vesting (existence) of a lien, the real operation (third-party action) of a lien and the preferential position of a lienholder in the case of the debtor' insolvency.

К вопросу отказа от ограниченных вещных прав на земельные участки

The features and legal consequences of the refusal of limited property rights to land plots are considered. The question of the formation and composition of property rights is investigated. The distinctive features of real rights to land plots have been determined from the standpoint of their influence on the authorities from them.

Узуфруктное право: истоки, сравнительно-правовой анализ и перспективы развития в России

Introduction: the reform of modern civil legislation cannot be completed without the adoption of a package of amendments to the section of the Civil Code of the Russian Federation devoted to real rights. Moreover, the lack of a developed and consistent concept of real rights has a negative impact on the development of all related areas. Real rights are designed to solve strategic problems of state development, among which social issues are currently coming to the fore. In this regard, it is important to study individual real rights proposed for introduction into civil legislation in terms of their potential to promote not only the economic but also the social development of the country. This paper focuses on usufruct in the aspect of its historical identity, powerful functional message, and internationality. Purpose: the research aims to clarify the significance of real law[1] regulation in solving nationally significant problems. Based on the achievements of foreign doctrine and legislation, we attempt to show the prospects of the introduction of usufruct in the Russian system of real rights. Methods: general (philosophical), general scientific, special scientific (including special legal) methods of cognition: dialectical, logical, historical, sociological, comparative-legal and formal-legal. Results: we have studied civil legislation of thirty countries of the world. The study has shown that the introduction of usufruct can have a positive social and economic effect, but only provided that the legislator does not deviate from the historically established concept of usufruct embodied in foreign law. Conclusions:the Draft of Section II of the Civil Code of the Russian Federation ‘Real Rights’ needs revision, with the initial social function of usufruct taken into consideration. It is necessary to work out a system of grounds for the emergence and termination of usufructuary rights, to introduce a mandatory notarial form of a contract for the establishment of usufruct, to provide for the possibility of establishing usufruct by virtue of law in relation to socially significant objects and on the basis of a court decision, to enshrine non-use of the right among the grounds for termination; to allow the establishment of usufruct in relation to citizens and legal entities, and not only non-profit organizations; to allow multiple usufructuaries; to describe in detail the rights and obligations of the owner and the usufructuary, including the duties of treating the property with care, and to indicate the possible limits of the disposal of the property by the usufructuary, including via transactions; to work out the rules for the exercise of the right of usufruct in relation to certain categories of objects, for example: property of minors, inheritance, agricultural land, forests, minerals, etc.

Regspraak: Géén teenprestasie vir ’n serwituut van parkering oor eiendom van ’n aandeleblokskema – bedenklik – ook wat kompetensie betref

The consequence of encumbering property with a perpetual praedial servitude is to burden all subsequent rightful holders of the servient tenement with the encompassing restriction to their entitlements as holders of the real right to the property. Such an encumbrance results in a severe subtraction from the dominium of the servient property. It would be deemed proof of prodigality if an owner were to consider such encumbrance unless a reasonable quid pro quo is received in lieu of the encumbrance, and this may take the form of damages payable to the owner of the servient property. The competencies of prodigals are restricted in their own interest and any perceived unassisted disposals of their assets are deemed a nullity. The same applies to any perceived disposal of valuable assets if the law limits the competency of the party to the disposal. In light of the premise that when in doubt any presumed servitude should be interpreted restrictively it is submitted that a court should be sceptical when claim is laid to a perpetual servitude encumbering 250 out of a total of 311 parking spaces in a housing development scheme for retired persons for the benefit of unspecified generations of clients frequenting businesses housed on the neighbouring property if no meaningful quid pro quo was paid by the owner of the neighbouring property and the competence of the directors who mandated a lawyer to register the servitude may be doubted. In order to protect the interest of holders of an interest in a share block scheme or a housing development scheme for retired persons the legislature enacted that any subtraction from the dominium of such schemes as owners of immovable property may only be agreed to when mandated by a special resolution. In the Olive Marketing case no special resolution was minuted where the required decision had been taken. On account of a stipulatio alteri the first defendant acquired the property from the eThekwini Municipality in terms of an agreement of sale to which it was not a party. The sale agreement provided that a parking servitude over the subject property would be created in favour of the adjoining property as dominant tenement. The court held that: it was the clear intention of the municipality and the buyer to create a praedial servitude, and the agreement of sale accurately reflected this intention. This judgement regarding the obligatory agreement may be sound but it is submitted that the court failed to consider whether any valid real agreement could be concluded to transfer the limited real right of the servitude unless the statutory requirements were met. By its signature to the sale agreement, the buyer had bound itself to grant and register the servitude, but the buyer never acquired ownership of the property. The plaintiff only acquired ownership of the perceived dominant property fourteen years later and was not a party to the original sale. Therefore, it is doubtful whether he was entitled to compel the first defendant to cooperate in registration and the utilisation of the so-called praedial servitude. If a servitude was involved, it is submitted that at most a personal servitude could have been considered, because the utilisation of the parking spaces does not meet the requirement that the entitlement of the servitude must benefit the dominant property and not the drivers of the vehicles seeking parking. It is comparable to the well-known examples of a personal servitude to play tennis on the servient property or the walk on that property, but such a personal servitude is not transferable and is extinguished by the death of the holder. It does not burden the servient property in perpetuity. The court’s finding that the special resolution requirement under section 4B of the Housing Development Schemes for Retired Persons Act 65 of 1988 was not applicable because the registration of the servitude did not impact on a right of occupation under the act cannot be supported. The special resolution requirement prohibits not merely the alienation of land intended to be used for occupational purposes in the narrow sense but also aspects that impact on the quality of the housing of the residents including the parking facilities. It is submitted that any subtraction from the dominium is included under the restriction and requires a special resolution and the transfer of such a perpetual praedial servitude does subtract from the dominium.

Право застройки как вещное право: проблемы правового регулирования

This article is devoted to the analysis of the history of legal regulation, legislation and the scientific doctrine of the right of building as a real right. The main methods for achieving results are historical and legal, formal and legal, systemic, comparative legal, individual logical techniques, methods of interpreting regulatory documents. The article is of a scientific and practical nature and explores certain aspects of the right to build someone else's land.This right, also referred to as a superficiency, has a special proprietary nature, and the history of its origin and development as a legal institution is also specific. The author made an attempt to investigate the history of formation, the concept and features of the right to build as a real right, the peculiarities of its legal regulation in certain foreign countries and in modern Russia. The specifics of consolidating this institution in the Concept of reforming civil legislation and in the Draft Federal Law on amendments to section 2 of the Civil Code of the Russian Federation are considered.The main conclusions were the characteristics of the signs of the right to build, the content of the rights and obligations of the owner of this right, the formulation of the main shortcomings of its legal regulation in the current legislation and in regulatory acts planned for adoption