Везде
Ficti Possessores in the Modern Civil Law
Table of contents
Annotation Estimate Publication content
References Comments
Share
QR
Metrics
Ficti Possessores in the Modern Civil Law
Annotation
PII
S1605-65900000622-5-1
DOI
10.12737/jrp.2023.007
Publication type
Article
Status
Published
Authors
Dmitrii Malbin 
ORCID: 0000-0001-7764-2499
Occupation: Leading Expert, Institute of Problems of Administrative and Legal Regulation
Affiliation: National Research University “Higher School of Economics”
Address: Moscow, Russia
Edition
Volume 27 No. 1
Pages
78-92
Abstract

Modern civil science bypasses the study of fictitious possession of a thing and the responsibility of a person who introduced himself as the owner in a dispute over a vindication claim. Roman law was aware of the fictitious owner, who was responsible for the deception committed by him in a claim for the recovery of property in the amount of the value of the thing. Despite the fact that in modern law a person who does not own a thing cannot act as a defendant in a vindication claim, it is impossible to exclude the occurrence of situations when a person who does not actually own a thing becomes a defendant in a claim for the recovery of property, including for reasons related to this person, such as, for example, when recognizing himself the owner in a legal dispute. This issue has not been investigated in civil law science, and therefore a comprehensive study of the phenomenon of fictitious possession of a thing and the responsibility of a fictitious owner in modern civil law is necessary.

Goals and objectives of the study: to determine the grounds and conditions for bringing to civil liability a person who presented himself as the owner in a dispute over the claim of the owner for the benefit of the present owner.

Research methods: general methods of cognition, historical, formal and legal.

Research results: by itself, the deception of a fictitious owner does not entail the possibility of bringing him to civil liability, since the owner does not suffer losses from such an illegal action. However, losses arise for the owner as a result of the loss of a thing, for example, when, due to a long-term legal dispute with a fictitious owner, the actual owner manages to acquire the thing according to the statute of limitations of ownership. In this case, there are conditions for bringing the fictitious owner to civil liability (illegality, the presence of harm (loss), guilt, causal relationship). In addition, there are political and legal reasons for bringing a fictitious owner to civil liability, since with such an opportunity, the prevention of a civil offense and the protection of the rights of the owner are ensured.

Keywords
ownership, ownership right, vindication claim, civil liability, damages
Date of publication
26.01.2023
Number of purchasers
12
Views
167
Readers community rating
0.0 (0 votes)
Cite Download pdf
1

References



Additional sources and materials

1.	Abushenko D. B. Problems of mutual influence of judicial acts and legal facts of substantive law in the civil process. Dr. diss. thesis. Ekaterinburg, 2014. 29 p. (In Russ.)
2.	Abushenko D. B. Problems of mutual influence of judicial acts and legal facts of substantive law in the civil process. Tver', 2013. 319 p. (In Russ.)
3.	Afanas'ev S. F. On the Legal Meaning of Decree of the Constitutional Court of the Russian Federation No. 30-P for the Civil Procedure Institution of Reconsideration of Court Rulings upon Newly Discovered or New Evidence. Arbitrazhnyy i grazhdanskiy protsess, 2021, no. 6, pp. 35—38. (In Russ.)
4.	Barkov A. V. Contract as a means of legal regulation of the social services market. Moscow, 2008. 291 p. (In Russ.)
5.	Braginskiy M. I., Vitryanskiy V. V. Contract law. Book One: General provisions. Moscow, 2005. 847 p. (In Russ.)
6.	Digests of Justinian. Ed. by L. L. Kofanov. Vol. II. Moscow, 2008. 622 p. (In Russ.)
7.	Ilyushina M. N. Limits on Notary Public's Verifying Actions concerned with Transactions and Contracts under the Amended Civil Code of the Russian Federation. Zakony Rossii: opyt, analiz, praktika, 2013, no. 6, pp. 29—35. (In Russ.)
8.	Ioffe O. S. Law of obligations. Moscow, 1975. 880 p. (In Russ.)
9.	Ioffe O. S. Responsibility under Soviet civil law. Leningrad, 1955. 310 p. (In Russ.)
10.	Kolodub G. V. Problem of a ratio of legal categories (phenomena) “execution civil duty”, “execution of the civil obligation” and “performance of the contract”. Yurist, 2013, no. 24, pp. 38—43. (In Russ.)
11.	Mikhaylov V. S. Theories of Causation and Establishing the Limits of Liability. Vestnik grazhdanskogo prava, 2019, no. 4, pp. 82—144. (In Russ.)
12.	Mousourakis G. Fundamentals of Roman Private Law. Springer Science & Business Media, 2012. 384 p.
13.	Novitskiy I. B., Lunts L. A. The general doctrine of commitment. Moscow, 1950. 416 p. (In Russ.)
14.	Pokrovskiy I. A. History of Roman Law. Moscow, 2004. 540 p. (In Russ.)
15.	Razd'yakonov E. S. The Established Character of Redress Sought by the Claimant in Insolvency (Bankruptcy) Cases. Arbitrazhnyy i grazhdanskiy protsess, 2018, no. 12, pp. 36—38. (In Russ.)
16.	Roman Private law: textbook. Ed. by I. B. Novitskiy, I. S. Pereterskiy. Moscow, 2004. 544 p. (In Russ.)
17.	Russian Civil Law: textbook. Vol. I: The general part. Property law. Inheritance law. Intellectual property rights. Personal non-property rights. Ed. by E. A. Sukhanov. Moscow, 2009. 958 p. (In Russ.)
18.	Shershenevich G. F. Selected works. Vol. 4. Ed. by P. V. Krasheninnikov. Moscow, 2016. 752 p. (In Russ.)
19.	Sinitsyn S. A. Claim protection of property rights in Russian and foreign civil law: current issues. Moscow, 2015. 340 p. (In Russ.)
20.	Sinitsyn S. A. Vindication, restitution and conditioning: problems of correlation. Zakonodatel'stvo, 2003, no. 8, pp. 18—27. (In Russ.)
21.	Tarkhov V. A. Responsibility under Soviet civil law. Saratov, 1973. 456 p. (In Russ.)
22.	Volkov A. V. The Ratio of Good Faith and the Principle of Non-abuse of the Law. Yurist, 2013, no. 8, pp. 3—7. (In Russ.)
23.	Yakovlev V. F. Selected works. Vol. 2: Civil law: History and modernity. Book 1. Moscow, 2012. 976 p. (In Russ.)

Comments

No posts found

Write a review
Translate