The Reform of Legislation on Property Rights and their Protection: Contradictions, Problems and Development Tendencies

The article analyzes the provisions concerning ownership, property rights and their protection in the Draft Federal Law on Property Rights. It is concluded that the draft law does not provide for significant differences between the concepts of "possession" and "ownership" although ownership is regarded as an actual state. Analyzing the norms of the German Civil Code (GGU) on Possession, the author comes to the conclusion that a possession-fact under the property contract becomes a possession-right, therefore, it is the legal fact with which the German law-maker associates the occurrence of certain legal consequences. This means that protection of possession provided by the German Civil Code (GGU) is based on parity in its nature and that in Germany there is no possessory protection in its classical form as it was applied during the early periods of statehood development. The conclusion is made that the mechanism of protection of possession in the draft law is not settled. The author substantiates the conclusion that the concept of a property contract is not envisaged either by the Civil Code of the Russian Federation or by a draft law. Any limited property right created by the property contract as the means of contractual obligation contradicts the meaning of the concept of separation of property rights and rights under obligations, in practice, may create the problem of the choice of causes of action typical for the Anglo-American, rather than the continental European legal order. Our civil legislation does not provide for an opportunity to choose cause of action and, thus, does not admit choosing the cause of action. This approach enshrined in the Civil Code of the Russian Federation deals with the differences in the grounds and conditions for the application of proprietary remedies and remedies based on obligation and applied to protect subjective civil rights. Therefore, establishment by law of both limited proprietary rights and rights based on obligations will practically mean a departure from this rule, and will create problems related to the choice of the cause of action.

property right, possession, protection of possession, subjective right, possessory claim (action), property claim, remedies under property law, protection of property rights, limited proprietary rights, contract, property agreement, objects to be protected under property law, choice of causes of action

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