Роль владения в активной легитимации по виндикационному иску

Хозяйство и право. 2022. № 11. С. 29–38.

Malbin D.

vindication is one of the classic ways to protect property rights. At the same time, ownership is traditionally considered as one of the main categories in the institution of a vindication claim. In particular, the literature notes the role of possession in the issue of active legitimation in a claim. The article presents a point of view according to which active legitimation in a claim is associated exclusively with the presence of the claimant's property right, therefore the claimant in the dispute is obliged to prove that he has such a right and that the defendant has the claimed thing. Proving that the plaintiff has possession is important only if there is a statutory presumption of the legality of possession, when the plaintiff, having proved possession of the thing, thereby proves the right to the claimed thing. However, Russian law does not know the presumption called presumption.

Keywords: собственность, property, виндикационный иск, vindication, спор, a legal dispute, possession, истребование имущества, владение, reclamation