Недвижимость как объект истребования по виндикационному иску

Российский юридический журнал. 2022. № 5. С. 55–65.

Malbin D.

A vindication claim is one of the classic ways to protect property rights. However, a number of issues regarding the vindication claim are still controversial. In particular, there is a discussion in science about the possibility of reclaiming real estate from someone else’s illegal possession with a vindication claim, when a record of the right of the owner is kept in the register. A number of authors believe that the vindication claim is applicable only to movable property, since the ownership of real estate is carried out by means of an entry in the register (the concept of book ownership), and, therefore, possession can only be violated by changing the entry. However, the current Russian legislation does not know the concept of book ownership, and its extension to the institution of a vindication claim leads to a number of theoretical contradictions that cannot be successfully resolved. In particular, due to the application of the concept of book ownership, a vindication claim is transformed into a claim for recognition, and a negatory claim begins to play the role of a claim for reclaiming real estate from someone else’s illegal possession. In the institution of a vindication claim, possession should be understood not as a social relationship, within which the dominance of a person over the object of possession is recognized, but as a material act of possession when the possessor has a material connection with the thing, while the owner, being removed from his object of real estate, deprived of such a connection. The vindication claim as an award claim is intended to eliminate such a violation.

Keywords: недвижимость, собственность, вещь, real estate, property, виндикационный иск, possession, истребование имущества, владение, книжное владение, reclamation, vindication claim, book ownership