Some controversial aspects of the grounds for the emergence of private property rights

Abstract

The article analyzes the existing positions on the correlation between the concepts of "methods" and "grounds" for the acquisition or termination of property rights. It is maintained that the grounds and methods of acquiring property rights are united by the same goal, as they are aimed at achieving the same result - the acquisition of property rights by a person. However, if the very fact of a persons legally significant action is important for the basis for the emergence of property right, then the form of committing such an action is the main one for the method.

The article also analyzes the criteria for classifying the grounds for the emergence of property rights. Arguments in favor of the use of the criterion of will and the criterion of succession to classify the grounds for the emergence of property rights are studied. It is concluded that none of the above criteria is optimal for the grounds for the emergence of private property rights. Therefore, it is expedient to agree with the position according to which the primary or derivative nature of the grounds for the emergence of the right of ownership is made dependent on the presence of the previous owner of the acquired property. It is noted that this approach is right, because, for example, it removes the debate on such a basis for the emergence of property rights as nationalization. First of all, it should be noted that considering nationalization through the prism of the right of private property, this ground is not the basis of emergence, but on the contrary - the basis of termination of private property rights. Second, proponents of the criterion of freedom attribute nationalization to the primary grounds for the emergence of property rights, because in this case the property right of the state arises against the will of the previous owner. On the other hand, proponents of the criterion of succession consider nationalization a derivative way of ownership, because in this case there is a succession of rights.

The article also concludes that it is necessary to consider Chapter 24 of the Civil Code of Ukraine in conjunction with Art. 11 of the Civil Code of Ukraine. It is noted that, as a general rule, a court decision is not a ground for the emergence of property rights. As follows from Part 5 of Art. 11 of the Civil Code of Ukraine, civil rights may arise from a court decision only in cases established by acts of civil law (in particular, this is provided in Articles 335, 376 of the Civil Code of Ukraine). In other cases, the court decision cannot be considered as a ground for acquiring the right of ownership.