Право прохода (проезда) к общественной дороге как ограничение права собственности в интересах соседа в российском и зарубежном праве

Право. Журнал Высшей школы экономики. 2020. № 2. С. 84–104.

Emelkina I.

The article discusses the construction of the right of the necessary road as a restriction of ownership in the interests of a neighbor. This right is not known to the Russian law. Proposals for its introduction were made in the last century in the process of discussing the draft of the Civil Code of the Russian Empire. The construction of the necessary road law is widely used in many foreign law and order as neighborly law along with a private easement. Foreign doctrine and judicial practice distinguish between a private easement and the right of the necessary road as neighboring law. The relevance of introducing the construction of the necessary road law into the domestic law and order is due to 103 Irina Emelkina. The Right of Access to Public Road as a Restriction of Property... Р. 84–104 the modern reform of Russian property law. An extensive judicial practice testifies to the practical need of this institution in our country, which shows the insufficient design of private and public easements to regulate relations between neighbors when establishing the right of passage (thoroughfare) to a public road. The article reveals the concept of the law of the necessary road as neighborly law, its essence, the conditions for establishing, delimiting from the property easement, determining the fee and exemption from it. The prerequisites for the introduction of this design into current Russian law are justified. The purpose of the article is to justify the need to develop the institution of the necessary road as a restriction of ownership in the interests of a neighbor (neighborly law) in Russian civil law. Based on the study of Russian doctrine and jurisprudence, a number of conclusions and proposals are prepared regarding the essence of the right of the necessary road as a neighbor’s law and the need to separate it into a separate civil law category. The methodology of the paper is based upon general research ways and means (analysis and synthesis, induction and deduction, a system analysis method) and upon methods of legal science (including comparative law, systematic, teleological and historical interpretation of legal norms).

Keywords: недвижимость, частный сервитут, право собственности на земельный участок, публичный сервитут, land ownership, land property, соседское право, public easement, land Registry