DOI 10.37749/2308-9636-2020-11(215)-4
Ilkiv O. V. Оwnership as a legal category
The article is devoted to the analysis of ownership in Ukraine. Features of ownership as a legal category that is inherent in real and compulsory relations are investigated. The legal aspects of ownership used to characterize the acquisition period are clarified. The legal consequences of actual domination of a thing are described. Thus, ownership in civil law is considered as the subjective right of the owner and as a separate real right to own someone else’s property. In civil law, ownership is considered as a subjective right of the owner or other persons, and not as an object of subjective rights. The actual content of a thing without a legal basis should not be identified with the right of ownership in the legal aspect. The stay of the find in fact with a person who has found a thing for six months while the unknown owner of it should not be interpreted as a right of ownership, since in the Civil Code of Ukraine the right of ownership is considered among the types of real rights to someone else’s property. The latter in turn arise on the basis of the will of the owner or the law, and in the case of a dispute — on the basis of a court decision. The positions on the protection of the right of ownership over acquisition time in the judicial procedure are justified.
Real ownership is one of the oldest known under Roman law. It covered two aspects: the independent type of property rights and one of the powers that constitute ownership. Since the time of Roman law, attention has been focused on the absolute nature of ownership in the form of domination of things. Dominance can be seen in the factual and legal aspects.
The establishment by the courts of the fact of bona fide possession of a thing for a period determined by law can be carried out in a separate proceeding. But it cannot recognize the ownership of a thing in order to consider cases of separate fact-finding proceedings of legal importance.
Key words: right of possession, property right, rights, acquisitive prescription.
References
1. Roman jurists on ownership and property (Digests. XLI. 1-2) / trans. A. D. Rudokvas, O. A. Akhterova // Ancient law. ANCIENT JESUS. 2002. № 1 (9). P. 265.
2. Pokrovsky I. A. History of Roman law. M .: Statut, 2004. Pp. 358–359.
3. Civil Code of Ukraine № 435-IV of 16.01.2003. URL: http://zakon2.rada.gov.ua/laws/show/435-15/conv/page.
4. Maidanyk R. A. Modernization of ownership in the law of Ukraine: basis and directions. Problems of civil law and process: theses add. participants of scientific-practical. conf., dedicated. bright memory of O. A. Pushkin, Kharkiv, May 24, 2019. Kharkiv: KhNUVS, 2019. Pp. 53–59.
5. Beeshu S. Legal nature of possession. Law of Ukraine. 2019. № 2. Pp. 196–206.
6. Civil Procedure Code of Ukraine: Law of Ukraine № 1618-IV of March 18, 2004. URL: http://zakon.rada.gov.ua/laws/show/1618-15/ed20040318.
7. On judicial practice in cases of establishing facts of legal significance. Resolution of the Plenum of the Supreme Court of Ukraine of March 31, 1995