What is the rationale for protecting property that is not part of the content of ownership?
The simplest explanation is that any property is protected as a visibility, an external expression of the property right. Well, if the presumption is "overturned", as reliable evidence confirms that the owner is not the owner, will the owner be protected? - Yes, it will. Why does the law allow the opposition of the owner and owner, sometimes even with a preponderance in favor of the second?
Trying to find an excuse for this state of affairs, the science of civil law developed two basic approaches, described by IA Pokrovsky. The first approach is based on the assumption of ownership, the second - on the principle of respect for the individual. Supporters of the first theory, for example R. Yering, say that the protection of possession is a simplified means of protecting property, since possession is an assumption (appearance) of property rights. It may be that deceptive visibility can be used by non-proprietors, but this is already a necessary evil. "As the sun shines on the right and the guilty, so does the proprietary defense spread its benefits to the persons entitled and offended". Adherents of the second theory - the theory of "civil peace" justified the protection of possession by the need to ensure public peace, respect for the human person, the existing order or, as they would say now, the stability of civil circulation. Here is what IA Pokrovsky writes: "Let the current owner of a thing be a thief and a robber, but (with rare exceptions of self-defense and the so-called necessary arbitrariness), even with respect to him, no violence or self-will on the part of private individuals can be tolerated; even a thief for them must remain a man. " Considering that proprietary protection is an element of cultural civil law aimed at protecting the human person, IA Pokrovsky believed that she would receive an extension. The forecast was confirmed, which we can observe on the example of the Decision of the Constitutional Court of the USA of April 21, 2003 No. 6-P "On the case on the verification of constitutionality of the provisions of paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation in connection with complaints of citizens OM Marinicheva , A. N. Nemirovskaya, 3. A. Sklyanova, RM Sklyanova and V. M. Shiryaeva, "which distributed certain rules that protect bona fide owners in vindication, to the rules that apply to the consequences of invalidity of transactions.
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What does it mean to get possession?
In civil law, there is a problem of determining the legal nature of obtaining possession (transfer of property, introduction to property, etc.), which we already mentioned in passing when separating real legal relationships and obligations. The crux of the problem is to see whether the act of obtaining possession is factual or legal. If we recognize the act of taking possession of a legal one, we must attribute it to signs of a transaction with all the ensuing consequences, including its invalidation. On the contrary, considering the act of transfer as an actual action, we must deny any possibility of its evaluation from the point of view of reality, etc.
Supporters of the approach, according to which the act of transfer is a transaction, justify it by the fact that the transfer of possession entails the emergence of the right apart from the right that arose the basis for the transfer. In particular, under the contract of sale and purchase, only the right to claim the transfer of the thing arises. The very right of ownership arises from the general rule from the moment of the transfer of the thing. Therefore, the transfer of a thing is an act that creates the right. And if so, then it corresponds to the sign of the transaction and can be recognized as invalid. For example, if the seller has changed his mind about transferring a thing, and the buyer has seized it by force, the transfer act may be declared invalid on the grounds provided for in Art. 179 of the US Civil Code.
Supporters of another approach, according to which the act of transfer is not a legal act, base their argument on the nature of possession as a fact that does not require legal action for its occurrence. In particular, the authors of the draft Concept for the development of legislation on proprietary rights believed that the idea of an ownership agreement should be abandoned, which would inevitably lead to the notion that a transaction is necessary to obtain possession and, as a consequence, to challenge ownership as a right, to recognize it as invalid etc., and this seems completely unacceptable.
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They also proposed to indicate in a specially introduced rule (this provision was not included in the final version of the Concept, - Note, author), that the act of acceptance-transfer or another act, indicating the transfer of the thing, has evidentiary value and introduces a presumption of possession by the person specified in the act.
It should be accepted that the act of taking possession, known in practice as an act of acceptance-transfer, can not be challenged by the rules of the transaction. However, we deny this possibility, rather, for the reasons that the act of transfer is, as a rule, the way of execution of the transaction (contract), and not an independent transaction.
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