Характер выбытия имущества из владения в институте защиты добросовестного приобретателя

Право. Журнал Высшей школы экономики. 2024. № 1. С. 68–92.

Malbin D.

One of the conditions for the protection of a bona fide acquirer is the nature of the disposal of property from the possession of the owner or the person to whom the thing was transferred into the possession of the owner. To date, the categories of will and possession remain controversial in the context of such a condition, which creates uncertainty in law enforcement. Possession in this condition should be understood as the actual domination of a person over the object of possession. At the same time, the theory of legal ownership is not applicable to the institution of protection of a bona fide acquirer. The will in that condition cannot be understood solely as a desire to transfer a thing and arise at the time of such transfer. The will to dispose of a thing from possession is formed before the transfer and is enclosed in the basis of the transfer of the thing. If the basis for the disposal of property from possession arose against the will and, thus, diverges from the will of the owner, then the transfer of property to them, even if committed voluntarily, indicates the disposal of property from possession against the will. If there are several persons authorized to alienate a thing, the will of the person who owns and alienates the property matters. At the same time, despite the fact that in the text of Article 302 of the Russian Civil Code of the it is indicated that the owner has the right to claim the property when it has left the possession of the owner and the person to whom the owner transferred the thing, against his will, the nature of the disposal of the thing from the possession of the person to whom it was transferred to those to whom the owner himself transferred it also matters the thing. Despite the fact that in art. 302 of the Civil Code, among the cases when the owner has the right to claim property, theft is called, such a term nevertheless has no criminal content, since there is no relationship between civil and criminal law in this matter. The Institute for the Protection of a bona fide acquirer contains regulatory legal norms and is applied regardless of the criminal legal qualification and the existence of a verdict in a criminal case.

Keywords: гражданское право, вещь, право собственности, воля, виндикационный иск, добросовестный приобретатель, владение