“Law” 9

Spesivtsev D.

National law academy of Ukraine

named after Yaroslav the Wise

tel.: 80501051142

To the question of recognition the right

as one of the effective methods of the protection of right of property

One of the universal method of right protection which is very useful in practice of law enforcement and therefore is significant enough is the recognition of a right.

The substance of recognition of the right in general form is in a proof of existence of a certain right. T. Abova admitted that this mean of defence is a propper instrument in the situations when it necessary to settle the doubts of having the right by this factory (enterprise) or to determine the absence of such a right fo counteragents. The distinctive characteristic of recognition the right is that this method doesn’t create the new proper legal relationships. In this way only existing rights and obligations confirmed.

To bring such a suit is possible only if:

a) a person is an owner of the property, but his or her right is contested or not recognized by the other person;

b) a person has lost the sertificate that confirms his or her right of property (article 392 of Civil code of Ukraine – hereafter CC);

c) a person is not the owner but wants to get the right to ownerless property (art. 335 CC), to the object of unauthorized building (art. 376 CC), to thing, property right on which can be obtain by usucapio (art. 344 CC);

Reasons for the bringing the claims to recongnizing the right arise when the availiability or substance of rights are interpreted in different ways and contested by the subjects of proprietary relationships O. Vershinin admits. In some jurisprudents opinion, the suit of recognition the right could be brought only in the case when the right isn’t broken yet. The possibility to be brought for the protection of not broken but contesting subjective rights is a distinctive characteristic of obtaining the right that distinguish it from other means of defending the right. Some more reasons (wider circle of reasons describes) gives V. Yarotsky. He admits the necessity of bringing claims to obtain the right may arise in accordence with breaking, contesting or disclaiming the right by others.

In the case of satisfaction by the court, economic court or court of arbitration claims of requirements contesting or disclaiming or some other similar claims the legal dispute considered to be settled and the right, to be definitely, restored only, when such a claims are compulsary beyond enforcement and enforcement of a judgement assumes no active actions. In this case the moment of finishing the activity for protection the right and of settling the dispute are coincidet.

Among the bodies who have the right to exercise such a method of protection as recognition of the right in V. Yarotsky’s opinion are states bodies (court, economic court, court of arbitration). O. Vershinin thinks that recognition the right is a prerogative of autoritative bodies. Obtaining the right by the subjects themselves, in his opinion, is a normal exercising their rights and duties and is not a defence of the right.

T. Abova, on the contrary, asserts that the defence with the help of recognition the right is conducted not only in the way of making a decision by the appropriate body about obtaining the availability or absence the right of the firm or organization but in claiming way – in the way of admitting the availability or absence of appropriate rights by the debtor.

O. Brintsev substantiates the acurracy of T. Abova’s point of view in the following: first, attaching provisions in art. 16 CC that the court exercise the defence of the rights in the way of obtaining the right doesn’t mean that obtaining the right or exercising other methods of protection can be administrated exclusively by the court. This list shows the power of the court for exercising of the universal methods of protecting the right not limiting the powers of other individuals. Second, we can’t agree with a statement that obtaining the law by the debtor in a claiming way is a demonstration of a normal realization of rights. The apperance of claim is the element of mechanism of defending the right that is the evidence of legal dispute availability of bars in exercising the right (real or supposed) and thus at an absence of “normal exercising the rights” and need it protection.

I completly support O. Brintsev’s position as I think the defence provides by the active activity of the owner of the property in the case of breaking or existing of the real possibility of breaking his right of property. So owner in case of disclaiming contesting his right of property by the other persons can use different pre trial or extratrial methods of protection (such as claim) including the selfdefence for proving the legality of his posession or right of property. The other side in it’s turn has the right to admit the right of property on some things that belongs to other person. The transmissing of the prerogative of recognition the rights to the court or other state body, I think, can limit the rights of subjects of legal relationships and break the principle of permissiveness of legal regulations of civil legal relationships.

So, the suit of recognizing the right is a special or an additional proprietory mean of protection of the right of property. Law literature contains different views on legal nature of this claim. So it’s conserned that claim of recognizing the right is:

1) a claim that attending vindication claim (on conditions if demands about recognition the right of property are presuppositions for the achievements the final aim by the plaintiff – to get back property to his possesion);

2) the kind of negatorium claim (if demands of recognition of the right of property are the presuppositions for removing the bars in right of user or disposal the property and so on);

3) an independent claim (when the subjuctive right of property isn’t broken yet by other person but the claim is directed on recognition the right of property from infinity circle of persons);