What is the concept of ownership? - Civil-law ways...

What is the concept of ownership?

In the previous subsections, it was a question of the concept and general characteristic of the property right. It was pointed out that possession is one of the powers of the owner. Then why separate ownership from ownership? In fact, there is a need for this. It is due to the fact that the circle of owners does not coincide with the circle of owners. The owner can be considered everyone who has a thing. They will be a tenant, a keeper, and even a thief. One of them owns lawfully, the possession of another is based on wrongful conduct, but all of them can be considered to be owners, since they exercise actual dominance over the thing. Then the next question arises: can possession as actual dominance generate legal relations, and if so, why?

Difficulties in finding the answer to this question begin with an attempt to give a full and comprehensive definition of the term "possession". The problem is that there is neither legal nor uniform scientific definition. In civilization, there are two basic approaches to determining ownership. Supporters of the first approach (the most ancient, originating from Roman private law), for example GF Shershenevich, saw in the possession of a combination of fact and will. The obligatory presence of the will was justified by the following examples: the sleeper is putting into the hand some thing; captive bind with ropes, etc. All these persons are in connection with the thing, but do not express the will to possess it. Can I call them owners? - No. This point of view was also followed by the developers of the Civil Code project, including Art. 878, according to which possession is acquired by the receipt of property in the power of a person in conjunction with the intention of owning property for himself.

Adherents of the second approach, in particular IA Pokrovsky, did not take into account the will as an element of possession, believing sufficient existence of the fact of possession is sufficient. They believed that the examples cited by their opponents are rarely found in practice, do not reflect the true state of affairs. Conversely, the often occurring cases when the property is owned by minors and incompetent persons are without protection, as the will of these persons is not given legal significance, and therefore the possibility of considering them as subjects of possession is denied. In addition, the possession must be protected not by law or fact, but by personality.

The current legislation does not contain norms similar to Art. 878 draft Civil Code. Hence, in the judicial process, it is not necessary to ascertain the owner's will.

There was no unanimity in science on the issue of whether the possession is a right or a fact. "The discussion about - is written by GA Hajiyev - is the possession of law or fact, has been going on for many centuries. As a result, there were two principal and one compromise points of view. Polar poles are the opinion of Paul and Papiniani in Roman law, Dernburg and Windsheed in German law, DI Meyer and GF Shershenevich in United States civil law. A compromise point of view belongs to VM Khvostov, who believed that legal possession is a right, but the right with rather scant content. "

We believe that in possession it is necessary to see the fact and the right at the same time. The fact we see in the essence of ownership as a real and objective possession of a thing. The right - in the legislatively fixed opportunity to own a thing as a non-proprietor. By the way, modern science is increasingly moving towards recognition in the possession of fact, rather than rights. Thus, the authors of the Concept of the Development of Civil Legislation of the United States believe that possession should be regulated as an actual relation, otherwise it will intersect with other proprietary rights. However, in this case the proposal of the authors of the Concept remains unclear, according to which the possession is preserved, while the owner who lost possession takes measures to protect him. It is also unclear their opinion on the possibility of the existence of possession as a right, which is part of a number of real rights, because it is difficult to imagine a right that is not part of the law.

By combining possession as a legally significant fact, not necessarily having a strong-willed basis, and possession as a right, and not simply a circumstance of objective reality, we get a definition of possession. So, possession - is the actual state that generates legal relationships primarily for protection. Defining possession as an actual state, we intentionally do not include a reservation on the basis of possession and foresee the question of whether an illegal possession, for example the possession of a thief, can be protected? And if so, why does legislation allow it?

thematic pictures

Also We Can Offer!

Other services that we offer

If you don’t see the necessary subject, paper type, or topic in our list of available services and examples, don’t worry! We have a number of other academic disciplines to suit the needs of anyone who visits this website looking for help.

How to ...

We made your life easier with putting together a big number of articles and guidelines on how to plan and write different types of assignments (Essay, Research Paper, Dissertation etc)