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DOI 10.37749/2308-9636-2021-5(221)-4

Tsiura V. V. Peculiarities of the relationship of concepts «use» and «hold» in civil law.

The issues of legal correlation between the terms of «holding» and «usage» according to the national legislation of Ukraine is analyzed in the article. The historical preconditions of formation and legal regulation of the appropriate terms in the legislations of foreign countries in particular such as: Germany, France, the Netherlands, Italy, etc. are researched. At the same time, the European case law in property cases, which characterize the researched terms, is analyzed. It is set that considering applications for violation of Art. 1 of the Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the court faced not only cases in which the applicants were in fact deprived of their property by expropriation and / or nationalization, but also cases in which such deprivation was deemed to be de facto. The legal nature of the term of «usage» based on the legal regulation of this term in various legal acts of Ukraine, is researched additionally. It is identified that resolving disputes arising from the acquisition of ownership of fruits, produces, income, sowings and plantings, the courts must proceed from the fact that the emergence of ownership of fruits, products, income derived from the use of the thing, the current legislation connects with the use of the thing (Article 775 of the Civil Code of Ukraine), and for sowings and plantings of agricultural and other crops — with the use of land (Article 95 of the Land Code of Ukraine). It is identified that the term «holding a thing» is more common in the countries of the German legal system. In Ukraine, the term «usage of a thing» is used. The ECtHR uses an analogous term, as usage is enshrined in Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Also, a significant difference between holding the thing and using the thing is that according to the approach of the legislators of the German legal system and Roman law, the ability of holder to protect the thing is not always enshrined on the normative level. Instead, in Ukraine, the protection of the right to use a thing can be exercised by a person who legally uses it.

Key words: civil law, use, possession, Convention for the Protection of Human Rights and Fundamental Freedoms.

 

References

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