Роль владения в вопросе активной легитимации по негаторному иску

Арбитражный и гражданский процесс. 2022. № 11. С. 12–16.

Malbin D.

Possession traditionally plays an essential role in determining the choice of a proprietary method of protection. At the same time, a negatory claim in legal science is defined as a claim of the owning owner, it is noted that only the owning owner has the right to a negatory claim, which is not fully accurate, since the method of protecting the violated property right is determined based on the nature of the violation. When the owner is deprived of possession, a vindication claim is applied, in other cases - negatory. In itself, the absence of the owner of the thing in possession does not indicate the absence of the right to protection from a violation not related to the deprivation of possession, including in the case when the thing is in the illegal possession of a third party.

Keywords: право собственности, ownership, защита права, негаторный иск, possession, negatory claim, владение