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О реформе Гражданского кодекса: приобретательная давность и защита вещных прав
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.