Legal nature of possession as a category

The article explores the features of possession as a legal category that is inherent in real and compulsory relations. It is noted that today world trends in the development of legal systems encourage the emergence of various legal tenure models. First, the institution of possession can combine both legal and legal states. Secondly, possession may be recorded in civil law at the level of the relevant variety of property rights and/or be a separate entitlement in the content of other property rights.

An analysis of the norms of the Civil Code of Ukraine does not make it possible to talk about the compliance of the developers of the code with the unified criterion of coverage in the legal norms of possession relations. The article also clarifies the legal aspects of possession used to characterize the acquisition statute of limitations. The legal consequences of actual domination of a thing are described. The positions on the protection of the right of possession over acquisition time in the judicial procedure are justified. The owner of the tangible object has a real right of possession prior to the creation of the right of possession over the acquisition period. The legal fact on the basis of which the real property right is transformed into a subjective property right is a court decision for real estate objects. The right to own property in civil law is considered as the subjective right of the owner and as a separate real right to own someone else's property. The concept of integrity of possession is analyzed. In the case of acquisition of possession, it must be assumed that if the owner openly and conscientiously uses the property whose owner has died and his heirs do not object to the possession of such property, then such possession should be considered bona fide, which may be the basis for the acquisition of possession after acquisition.

Keywords: right of possession, property right, rights, acquisitive prescription.

Аннотация

Правова природа володіння як юридичної категорії

В статті досліджуються ознаки права володіння як юридичної категорії яка притаманна речовим та зобов'язальним відносинам. Зауважується, що на сьогодні світові тенденції розвитку правових систем спонукають виникнення різних правових моделей володіння. По-перше, інститут володіння може поєднувати в собі як правовий, так і неправовий стани. По-друге, володіння може фіксуватися у цивільному праві на рівні відповідного різновиду речових прав та/або бути окремою правомочністю у складі змісту інших речових прав.

Аналіз норм Цивільного кодексу України не дає можливості говорити про додержання розробниками кодексу єдиного критерію висвітлення у правових нормах відносин володіння. У статті також з'ясовуються правові аспекти володіння, що використовується для характеристики набувальної давності. Описуються правові наслідки фактичного панування над річчю. Обґрунтовуються позиції щодо захисту права власності за набувальною давністю в судовому порядку. До виникнення права власності за набувальною давністю володілець матеріального об'єкту має речове право володіння.

Юридичним фактом, на підставі якого відбувається трансформація речового права володіння в суб'єктивне право власності є рішення суду для об'єктів нерухомості. Право володіння в цивільному праві розглядається як суб'єктивне право власника та як окреме речове право володіння чужим майном. Аналізується поняття добросовісності володіння. При розгляді справ про набуття права власності за набувальною давністю необхідно виходити з того, що якщо володілець відкрито та добросовісно користується майном, власник якого помер, а його спадкоємці не заперечують проти володіння таким майном, то таке володіння слід вважати добросовісним, яке може бути підставою для набуття права власності за набувальною давністю.

Ключові слова: право володіння, право власності, речові права, набувальна давність.

The right of possession is one of the most famous legal constructions that has come down to us since the days of Ancient Rome. The concept of `possession' (possessio), being one of the oldest institutions of Roman law, is defined as the actual domination of a person over a thing, combined with the intention to have the object of possession entirely for himself. As noted by the famous Roman jurist Paul, possession is the unity of two elements - corpus and animus. [1] In the actual composition of the relationship of possession there were two elements - subjective (animus possidendi) and objective (corpus possessionis). If the first presupposed the presence of possessive will, ie the intention to own the thing for themselves, the second - the real domination of the object, the ability at any time to exercise a certain desired subject to influence the thing.

The right of possession is defined as an independent type of property rights, or as one of the powers of property rights. However, the emphasis is often on the absolute nature of the right of possession in the form of domination over the thing. Modern civilians consider the domination of a thing in factual and legal aspects. Thus, the famous scientist J. Pokrovsky, characterizing possession, determined the great importance in society, along with the rights to things, and the actual distribution of things, which enjoys protection from any encroachment by individuals. [2]

De facto domination is the possession of a material object regardless of the legal title, ie it can be combined with or without legal possession. In the case of actual possession without a legal basis, the owner receives the status of a bona fide or dishonest purchaser, depending on the subjective factor - the attitude of such owner to the thing as his own. In view of the above, the right of possession can be considered as an independent property right and as an integral element of property rights.

In the modern science of civil law there is no clear definition of the term «right of possession». Chapter 31 of the Civil Code of Ukraine [3] (hereinafter the Civil Code of Ukraine) «The right to own someone else's property» lists the subjects of origin and termination of the right of possession, provides for the obligation of the unscrupulous owner to return the property to the owner or bona fide owner. Of Ukraine). This chapter of the Central Committee of Ukraine is based on the idea of the existence of two types of possession - actual possession and the right of possession. The subject of actual possession is the owner of another's property, who actually holds it. And the subject of the right to own someone else's property is in fact any person who owns someone else's property on a certain legal title. In accordance with Part 1 of Article 397 of the Civil Code of Ukraine, the possession of another's property is the actual retention of another's property. According to Part 3 of Article 397 of the Civil Code of Ukraine, the actual possession of property is considered lawful, unless otherwise provided by law or established by a court decision. The actual owner is provided with possessory protection, as such a factual condition may be protected from the owner or other subject of property rights in accordance with Part 3 of Article 344 of the Civil Code of Ukraine. The right to own someone else's property, according to Part 2 of Article 397 of the Civil Code of Ukraine may belong simultaneously to two or more persons. [4; p.54]

In the outlined sense, in our opinion, it is impossible to avoid the fact that the content of the category «right of possession» includes a description of its independent form of appropriation of property rights and domination over the thing. This is extremely important because the current state of socio-economic relations requires a clear regulatory regulation of this type of property law.

It is worth recalling that the place of possession in the system of property rights depends on determining the legal nature of possession. The legal doctrine has formed three main approaches to clarifying the legal nature of the right of possession, namely:

* possession as a factual condition

* possession as a right

* possession as a factual situation that generates legal consequences [5; p.197]

In view of the above, possession as a legal term is mainly considered through the prism of the actual state, which allows the actual owner to act as the titular owner of the thing. This position is explained by the fact that the emergence of a de jure right of possession is necessarily combined with the actual domination of the thing. Therefore, a person may be the actual owner without having a legal basis for the acquisition of property rights as a legitimate legal fact.

It is clear that the actual possession does not give rise to any legal consequences inherent in the right of possession. These are the powers of the owner, established by law or contract. The transfer of the object of possession to another person will be a de facto act, which is not a ground for the emergence, change or termination of civil rights and obligations in property law. But this does not mean a change in the content of the protected legal relationship, as the owner of the thing may claim the thing from the new beneficial owner.

In addition, it should be borne in mind that the right of possession as a legal category is inherent in the binding relationship. Thus, under the property management agreement, one party (management founder) transfers the property to the other party (manager) for a certain period of time, and the other party undertakes to manage this property on its own behalf for the benefit of the management founder or the person specified by him (beneficiary). ). (Article 1029 of the Civil Code of Ukraine)

The definition of this agreement formulated in the Central Committee of Ukraine allows to draw a conclusion that at implementation of powers on actual and legal management of property, it is in possession of the manager. This is confirmed by Part 2 of Article 1038 of the Civil Code of Ukraine, according to which, the manager performing factual and legal actions related to property management must notify the persons with whom he makes transactions that he is a manager, not property owner. It follows that the right of possession is an element of the content of the binding legal relationship for the transfer of property for rent.

In this case, the founder of the management (owner of the property) and the manager are at the same time authorized persons who have the right of possession. But the founder has a legal right of possession, and the manager has the actual and legal right of possession defined by the management agreement and the provisions of the trust property law, as the property management agreement may certify the manager's trust possession of the property received for management. Thus, several entities can have subjective possession rights to the same object at the same time.

Meanwhile, we emphasize that the powers of the owner are determined by law and individual legal acts or legal composition, an element of which may also be a contract. By their nature, they tend to property law. Powers are based on subjective rights, the object of which are things (material goods). Therefore, any change or cancellation of the grounds for the occurrence of the commented subjective civil law can be considered in the context of violation of the right of the authorized person.

We believe that clarifying the legal nature of subjective civil law is relevant to the application of methods of its protection. At the same time, determining the legal nature of the right of possession is important for establishing and specifying the subjective powers of the subject of these relations. If they are built on the basis of legal composition or the primary legal fact is a contract on the right of possession, the provisions of the law of obligations have a decisive influence. This applies to the moment of acquisition of the right of possession, the characteristics of the subject of binding legal relations, the rights and obligations of the parties, the grounds for termination of the binding relationship, the limits of the rights arising under the contract. However, the issues of application of the provisions of property law to these relations remain urgent.

In our view, the transfer of possession on the basis of a contract or legal structure, an element of which is a contract, does not preclude the application of the provisions of property law in the part not regulated by the contract. However, this is not the same as substituting property law for contractual regulation. In particular, property rights should not be used to protect subjective possession. Based on the pandect system of construction of the Central Committee of Ukraine, priority will be given to the provisions of the law of obligations in this case. However, this does not preclude the application of the provisions of property law in the event of certain gaps in the binding regulatory mechanism.

In this sense, it should be borne in mind that the legal aspect of possession is present both in the actual domination of the thing, and in the absence of the thing in the actual possession of the owner. Instead, the right of possession of the titular owner covers the legal and factual aspects. Otherwise, such owner will be considered an unscrupulous purchaser.

In fact, the latter position is inherent in Ukrainian civil law, according to which the owner is a person who actually holds the material object and exercises dominion over the thing. The criterion for determining the legal status of such owners is the good faith or bad faith of the grounds for acquiring possession of the thing. Related to this are the legal consequences of actual domination of a thing.

We believe that the actual maintenance of the thing without legal grounds should not be equated with the right of possession in the legal aspect. The fact that the property was found by a person who found the thing within six months while its owner is still unknown should not be interpreted as a right of possession, as the Central Committee of Ukraine considers the right of possession among the types of property rights to another's property. The latter, in turn, arise on the basis of the will of the owner or the law, and in case of dispute - on the basis of a court decision.

It follows that the presence of a found thing in the person who found it is the actual possession of the thing, not domination over it. Because at any time within six months, the owner can claim their rights to an individually- defined thing. In addition, Part 3 of Article 337 of the Civil Code of Ukraine provides that a person who has found a lost item has the right to keep it or deposit it with the police or local authorities, or transfer the find to the person they indicated. The person who found the lost thing is liable for its loss, damage or destruction within its value only in case of his intent or gross negligence.

So, there is no question of any domination over the found thing. On the contrary, the person who found the thing has a number of responsibilities under the law. Therefore, in our opinion, the phrase «has the right to keep the found thing in itself» is not quite correct. After all, in this case, such a person is responsible for its safety.

At the same time, the person who found the lost thing has the right to demand from the person to whom it was returned or from the person who acquired the right of possession, reimbursement of necessary expenses related to the find (storage, search for the owner, sale, etc.). In addition, it may also demand from the owner of the lost thing (its owner) a reward for the discovery of up to twenty percent of the value of the thing. Thus, the legislator within six months does not consider the person who found the lost thing in the status of its owner. And only after the expiration of six months from the moment of application for the find to the National Police or to local self¬government bodies can a person acquire the right of possession. Thus for emergence of the property right in such order two conditions are necessary, in particular if:

* the owner or other person who has the right to demand the return of the lost item will not be identified;

* the owner or other person who has the right to demand the return of the lost thing will not declare his right to the thing to the person who found it, law enforcement or local government.

Thus, the person who found the thing is endowed with certain rights and responsibilities. But among them there is no legal right of possession, which should be understood as domination, domination over a thing. In this situation it is a question of actual receipt of a thing by such person. Only after the expiration of six months from the date of the statement of discovery, under the circumstances provided by law, the person who found the lost thing can acquire it in the property, the content of which will be the subjective right of possession.

In the context of this, it is necessary to point out another gap in the legal regulation of the research issue. Thus, to describe the legal regime of stray pets, the legislator also does not use the term «right of possession» to determine the legal status of the person in which the stray pet is. The terms «detention of a stray pet» and «keeping an animal» are used.

A person who has detained a stray pet may, at the time of the owner's search, keep it in his possession and use or transfer it to another person, if this person can provide care and care for the animal in compliance with veterinary rules or transfer it to local authorities.

If, within six months of the application for the detention of stray livestock or cattle within two months, no owner is identified for the other domestic animals or he declares his right to them, the possession of those animals passes to the person in whom they were maintained and in use.

Thus, the legal consequences in both cases of the expiration of the six-month period for the acquisition of property rights are similar. But, as in the first case, so in the second - the legislator does not use the term «possession». The terms «keeping» and «use» are used to describe the legal regime of stray pets.

We consider it appropriate to note that the term «possession» is used to describe the acquisitive prescription. According to Part 1 of Article 344 of the Civil Code of Ukraine, a person who in good faith took possession of another's property and continues to openly, continuously own real estate for ten years or movable property for five years, acquires possession of this property (acquisition statute of limitations), if otherwise not established by this Code.

In this case, the legislator uses the term «bona fide owner» to describe the status of the subject of these relations. In this case, the person who declares the statute of limitations of possession may attach to the total time of such possession the entire period of time during which the testator whose successor it is owned.

In the commented situation it is a question of the right of possession which has arisen without the legal basis defined by the law which would confirm existence at such person of the property right to the thing which component of maintenance would be possession.

Today, the statute of limitations is the basis for the acquisition of possession of movable and immovable property in the circumstances provided by law. All the features related to the legal regime of the thing to which the right of possession is acquired depend on whether it belongs to movable or immovable property. The conditions for acquiring possession of such property are reduced to good faith, open and peaceful rule. Of course, the term of possession of this property has legal consequences.

However, there is a question about the legal nature of the relationship, the object of which is the thing that is in the possession of the subject of the acquired rights. If the thing belongs to real estate, it must be registered by a specific owner in the register of real estate rights. In particular, the land plot must be recorded in the land cadastre. The legal consequences of owning someone else's property will depend on the owner of such property having the relevant supporting documents.

If the objects are not entered in the state registers, it is, together with the continuity and openness of possession, a confirmation of the good faith of the subject of the acquiring relationship. In the case of a formally de jure registered real estate owner who has not exercised the powers that constitute the content of his property right during the statute of limitations, the statute of limitations should be interpreted as a real right to own someone else's property.

In this case, the transformation of the right of possession into the subjective right of possession of a person who in good faith continuously owned someone else's property for a period established by law.

However, a certain legal fact is required for the emergence of property rights. From the content of Article 344 of the Civil Code of Ukraine it follows that the legislator clearly defines only the category of the term of possession of property, using along with the evaluation concepts: continuity of possession, good faith, openness. In general, this is enough to characterize the possession as a real right to another's property, but not enough for the automatic transition (transformation) of the real right into the subjective property right of the acquirer.

From our point of view, for the emergence of material relations of possession in the context of the acquisitive prescription, the conditions listed in Article 344 of the Civil Code of Ukraine are sufficient. The law even protects the rights of the subject of property relations. In particular, the unintentional loss of property by its owner does not interrupt the statute of limitations in the case of return of the property within one year or the filing of a claim for its recovery within this period.

The right of possession under the statute of limitations for real estate, vehicles or securities is acquired only by a court decision. That is, the legal fact of transformation of the real right of possession into the right of possession under the acquisitive prescription for the listed objects is a court decision, which generally corresponds to the provisions of Article 11 of the Civil Code,

However, it cannot be agreed that in the context of acquiring the right of possession under the acquisitive prescription, all objects listed in Part 4 of Article 344 of the Civil Code of Ukraine must be based on a court decision.

Prior to the acquisition of the right of possession under the acquisitive prescription, the owner of the material object has a real right of possession. The legal fact on the basis of which the transformation of property rights into subjective property rights is a court decision for real estate. In view of the above, it is necessary to analyze the procedural aspect of establishing the existence of the fact of bona fide, open, continuous possession of real estate for ten years. It is necessary to determine the nature of the requirements of the owner of property rights. One of the grounds for acquiring possession is the above conditions listed in Article 344 of the Civil Code of Ukraine. The emergence of property rights under the statute of limitations depends on their establishment in court.

The norms of the Civil Procedure Code of Ukraine [6] (hereinafter the CPC of Ukraine) provide for cases of establishing facts that have legal significance. Part two of Article 315 of the CPC of Ukraine stipulates that other facts may be established in court, on which the emergence, change or termination of personal or property rights of individuals depends, unless otherwise provided by law.

In our case, it is a question of establishing the fact of open, continuous, conscientious possession of a thing, which is the basis for acquiring the right of possession under the acquisitive prescription. But the owner of the thing aims to acquire possession of it. Therefore, in the commented situation, the establishment in court of the fact of bona fide possession of a thing within the time specified by law can be carried out in a separate proceeding.

But it cannot recognize the right of possession of a thing in the order of consideration of cases of separate proceedings on establishment of the facts having legal value. According to the Resolution of the Plenum of the Supreme Court of Ukraine «On Judicial Practice in Cases of Establishing Facts of Legal Significance» [7] of March 31, 1995, the court refuses to open proceedings if the application for establishing a fact of legal significance , the dispute about the right is seen, and if the dispute about the right will be revealed during consideration of business - leaves the statement without consideration. Therefore, the acquisition of possession by the owner of the thing under the acquisitive prescription must be carried out in the claim proceedings, because it is a right.

Thus, the right of possession in civil law is considered as a subjective right of the owner and as a separate real right of possession of another's property. In civil law, possession is seen as a subjective right of the owner or other persons, and not as an object of subjective rights, so it is necessary to eliminate existing inconsistencies. When considering cases of acquisition of property rights under the statute of limitations, it is necessary to proceed from the fact that if the owner openly and conscientiously uses the property whose owner died, and his heirs do not object to possession of such property, such possession should be considered bona fide. acquisition of property rights under the acquisitive prescription.