After reading the content of the judicial acts in the case that is the subject of this article, you are once again convinced of the wisdom of the old saying "what is good for a German, then death for a Russian" (well, and Vice versa, too). We believe that direct references to the fact that "we have such a mentality, such a tradition, such a psychology, such traditions" are an easy but extremely unreliable refuge for explaining, but rather justifying, many social and legal problems of our state and society. However, when it comes to comparative methods of research or reception of foreign rules and regulations, it is necessary to take into account all the differences in the compared States, since any rule and principle do not exist in a vacuum and operate in the system of other rules of law and the entire legal machinery. And one of its most important elements, of course, is the judicial system, its structure, its modus operandi. The same procedural and substantive rules in their application by different courts are implemented not just differently, but sometimes in the opposite way. The degree of maturity of the legal culture is also of great importance. When everything is aimed at finding subtle places, lacunae, gaps, shortcomings of the legal fabric, circumventing and gross violation of the law, then the court should function in a completely different setting and modality.
In Russia, attempts are currently being made to adjust the institutions of corporate law and insolvency, but this is sometimes too hasty and even vain, without a system, without a conceptual understanding of where we are going and what we want to achieve as a result. How not to remember the classic: "Rus, where are you going? give an answer. Doesn't give an answer." And we, together with the Parliament and the Supreme Court, fly like sails, often and sporadically changing the rules of the game, but the main thing is that many law enforcement acts rely on rather flexible vague norms, and any attempt to nuance and be guided by justice and common sense often leads to terrible arbitrariness and lawlessness. To a greater extent, this concerns issues of bringing to justice: both General civil and subsidiary in bankruptcy. And this is where many dangers and threats lie, both for the stability of civil turnover and for confidence in justice. This is truly thin ice even for such established legal systems as the UK, let alone Russia.
In the article, the author analyzes the proposed amendments to the chapter of the Civil Code on property rights, namely the novels about acquisitive prescription and the protection of property rights.
The institution of acquisitive prescription has existed in domestic law since 1833 (with its "shutdown" in the Soviet period) with certain modifications and problems of law enforcement at the present stage. The developers of the amendments to the section on property rights propose to exclude the requisite of good faith for acquisitive prescription. The author supports the amendments, but subject to the introduction of monetary compensation from an unscrupulous acquirer in favor of the previous owner, and considers it necessary to reflect in the Draft the moment when ownership of real estate arises due to acquisitive prescription. In the author's opinion, this is the moment when the right entry is entered into the Register.
The proposed changes in the system of protection of property rights - a new section on the concept of ownership, protection of any possession without examining the grounds for its occurrence and the introduction of a claim for recognition of property rights - the author, on the contrary, evaluates critically, believing that the protection of ownership makes sense only if among the requisites of acquisitive prescription there is conscientiousness. Acquisitive prescription without good faith and the right to property claims of the owner for prescription are the protection of the possession of any person.
The author critically evaluates the submission of a claim for the recognition of property rights into an independent category, since this can lead to a legal deadlock associated with the statute of limitations: at present, the courts do not apply the statute of limitations to the claim for recognition of the right, qualifying this requirement as a kind of negative claim, but the statement the independent nature of the claim for recognition means the extension of the statute of limitations to it. As a result, the owner of real estate will be able to skip the statute of limitations on a claim for recognition of the right aimed at making an entry about his right in the Register, and the one who is registered as the copyright holder will not be able to vindicate again due to missing the statute of limitations.