What is the freedom to choose a civil-law way of protecting...

What is the freedom to choose a civil law way of protecting the right of ownership of immovable property?

Freedom to choose a civil law protection means that no one can be forced to choose one or another way of protection. This fully corresponds to the rule that civil law is based on the need for unimpeded implementation of civil rights, ensuring the restoration of violated rights, their judicial protection; citizens (individuals) and legal entities acquire and exercise their civil rights by their own will and in their interests (Article 1, 9 of the Civil Code of the United States).

Freedom of choice is also expressed in the ability to combine several non-mutually exclusive ways of protecting. In practice, for example, a vindication claim against a real estate object is often presented in combination with the requirement to recognize the right of ownership. Most often, such a combination is used to overcome state registration of the defendant's property right to real estate, thereby fitting into the formula of the vindication claim as a claim of the non-possessory owner to the owner of the non-owner. Often the vindication lawsuit is combined with the requirement to declare the transaction void. This is done to justify the illegality of possession of the defendant. And sometimes you can meet all three organically combined with each other requirements at the same time: the recognition of the transaction as invalid, the recognition of property rights and the demand for property from someone else's illegal possession. Let's take the following example.

P. appealed to the Abakan City Court with a lawsuit against A. and LLC "SSC" on the recognition of the purchase and sale transaction between A. and OOO CCK from November 10, 2006 regarding the sale of the transformer substation invalid, the recognition of the ownership of the disputed transformer substation behind the plaintiff, and the demand for the property from the defendant OOO "SKK". During the consideration of the case by the court it was established that on April 29, 2004 between OOO "F." (seller) and P. (buyer) signed a contract for the sale and purchase of a transformer substation. The specified object is transferred to the buyer and paid for by him, which is confirmed by the act of acceptance-transfer dated April 29, 2004 and payment documents. By the decision of the Abakan City Court of March 1, 2006, A. recognized the ownership of the production base for deep processing of wood and wood, including a disputable transformer substation. In accordance with the contract of sale dated November 10, 2006, concluded between A. (seller) and LLC "SSC" (the buyer), the seller sold the buyer a number of real estate assets, including a controversial substation. At the same time, the buyer was given a certificate of ownership of the transformer substation as an object of immovable property. On May 7, 2007, by the decision of the Presidium of the Supreme Court of the Republic of Khakassia, the decision of the Abakan City Court of March 1, 2006 on the case of A.'s claim against the administration of Abakan about the recognition of the ownership of the unauthorized construction was canceled, the case was sent for new consideration. During the new examination of the case, A. abandoned the claims made to the administration of Abakan about recognizing her ownership of the unauthorized construction - the production base, including a transformer substation. Having heard the explanations of the parties, having examined and evaluated the presented evidence in their totality, the court concluded that the transformer substation is not an object of real estate, and therefore the conclusion of the contract of sale between OOO "F." and P., as well as the transfer of this thing was enough to transfer ownership to P. (the buyer). At the same time, the court rejected the arguments of OOO CCK that the right of ownership belongs to him, because his right LLC "SSC" justified by the agreement of November 10, 2006 between him and A. In turn, A. referred to the fact that the disputed property belonged to her on the right of ownership by virtue of the court decision of March 1, 2006. However, the court decision by the decision of the Presidium of the Supreme Court of the Republic of Khakassia May 7, 2007 was canceled. Consequently, the ownership of A. did not arise. Since the ownership of A. did not arise, it could not go under the contract of sale as a derivative way of acquiring property rights (Article 218 of the Civil Code of the United States) to LLC "SSC".

In addition, at the time of alienation, i.e. as of November 10, 2006, the transformer substation already owned the owner - P. And only he could dispose of the disputed property. In such circumstances, as the court pointed out, the transaction between A. and OOO "SCC" is invalid due to the reason provided for in Art. 168 of the US Civil Code. Also from the materials of the case it was evident that the transformer substation is in the actual possession of OOO "SCC". In this case, the plaintiff is deprived of possession of his thing. This circumstance became the basis for applying Art. 301 of the US Civil Code and the satisfaction of the plaintiff's claim to reclaim property from someone else's unlawful possession (OOO SKK ),

Mentioning the freedom to choose the method of protection, we must make a reservation that the choice can be made among the ways provided by law for the protection of civil rights (Article 12 of the Civil Code of the United States). Often in practice, you have to deal with claims for recognizing the transaction as valid (outside Article 26, 165, 171, 172 of the Civil Code of the United States), on invalidation of information, registered law, the obligation to include in the technical passport of real estate objects, etc., are used as a way to protect property rights.

Indeed, in the judicial practice there are ways of protection that are not directly specified in art. 12 of the US Civil Code, nor in other legal norms, but nevertheless their existence can be confirmed by other provisions of the US Civil Code. For example, a claim for recognition of property rights, which has become very widespread in practice, can be withdrawn from such a method of protection as the recognition of the right (para 2 of Article 12 of the Civil Code of the United States). Another, no less common way of protecting the law - the recognition of a contract as non-concluded can be justified by the existence of non-concluded contracts (Article 432, 433 of the Civil Code of the United States), and therefore the need to recognize them as such.

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