Владение как условие пассивной легитимации по виндикационному иску

Актуальные проблемы российского права. 2022. Т. 17. № 9. С. 83–94.

Malbin D.

a vindication suit is one of the classic ways to protect property rights. Taking into account that according to the construction of the vindication claim, the property is being destroyed from someone else's illegal possession, then passive legitimization of the claim is associated with the possession. At the same time, the question of who is the owner of the thing for the purposes of the claim is controversial. In the legal literature, the opinion has been confirmed about the applicability of the theory of possession (possessio civilis) to possession in the institute of vindication claim, which gives grounds to believe that not only the actual owner of the thing as the direct owner of the thing, but also the person who transferred the thing into temporary possession, as an indirect owner, is passively legitimized by the claim. This approach should be criticized, since the possession of a vindication claim in the institute should be understood as the actual possession of a thing, and therefore the theory of direct and indirect is not applicable. Passive legitimized by a vindication claim is only the actual owner of the thing as a person who does not fulfill a subjective duty towards the owner

Keywords: право собственности, property, виндикационный иск, Владение, possession, иск о признании, actio vindicatio, direct possession, indirect possession, непосредственное владение, опосредованное владение