Academic journal article Review of European Studies

Some Issues on Limited Proprietary Rights in the Project of New Edition of the Civil Code of Russian Federation

Academic journal article Review of European Studies

Some Issues on Limited Proprietary Rights in the Project of New Edition of the Civil Code of Russian Federation

Article excerpt


This paper delves into effective legislation and practice of using it in the sphere of limited proprietary rights. The study describes history of such notions as property, estate, and servitudes in the Roman law, the legislation of Russian Empire, the documents of the USSR, and Civil Code of Russian Federation. The effective Civil Code of Russia, as well as of most of the Western European countries, does not explain the notion of the laws of property. It may cause many misunderstandings, so the Code has to be improved. The paper emphasizes the need of designing the criteria for laws of property. The article describes what kind of scientific work needs to be done for construction of the accurate proprietary rights system. The weak and strong points of the laws in force are highlighted. They are compared to the ones proposed in the project. Also the author analyzes advantages and disadvantages of the new edition of the Russian Civil Code.

Keywords: law of property, property, estate, servitude, civil code, Russia

1. Introduction

The issues of property right limitation in all times attracted attention of the scientists and practitioners: V. I. Kurdinovskii yet agreed that the civil experts should "historically trace until now the limitation in land and immovable property usage according to the Russian legislation" (Kurdinovskii, 1899). In Russia this issue has not been solved yet, that was intensively caused by the peculiarities of historical development of our country, which comparatively recently recognized the existence of the private property.

Meanwhile, as V. P. Kamyshanskii truly stated that only in the era of Great French Revolution the right of property received the "sacrosanct" status. Presently its sacred character is not spoken about, although its inherence and inviolability are not denied. On the opposite, in the course of time the public consciousness recognized the necessity of enhancement of the social role of the property right (Kamyushankii, 2000), and necessity of its limitation.

1.1 The History ofRegulation of Proprietary Right Limitation

In the scientific literature the limited proprietary right is usually understood in the order established by law as registered absolute civil right, lying in the possibility of that or another limited relation distinctly determined by the law to use the other's immovable property, as a rule, for own benefits without intermediary actions of its owner (including against his will) (Sukhanov, 2002).

The proprietary rights were developed by the Roman lawyers. The pandect study, in its turn, basing itself on the legal material of Roman law, executed the theoretical argumentation of the rights on the others' items (specified as the limited proprietary rights by it) as the independent civil-legal category, implemented their systematization (Emelkina, 2010).

The first written artefacts of the Russian law didn't include distinct legislative differentiation of such notions, as "property" and "possession", instead only separate elements, which can be related to the proprietary right with certain part of conditionality, were met (Danilova, 2008). Correspondingly, there was no any strict system of limited proprietary rights on the property, and couldn't be.

The appeal to the proprietary right category in Russia took place only in the second half of XIX century. In the Legal civil code of the Russian Empire Section II of book II of volume X was called as "About the essence and space of different property rights" and in the rank with property right considered the right of participation in usage and benefits of other's property (in essence, the right of servitude type, established for passing and driving cattle etc.); the right of lands in other's properties (usage of forests according to the "entry right" and hunting right); the right of possession and usage, separate from the property right (life possession of family estate, separate usage of movable property, e. …

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