Право собственности в проекте изменений ГК РФ: преемственность и новеллы

The right of property in the Russian Federation Civil Code draft changes: continuity and novelties

In the article, some of the issues are viewed associated with the right of property in the context of the proposed changes and amendments to the RF Civil Code. Initially, the thesis is justified about the importance of the civil legislation stability which is supposed to be provided by the forthcoming upgrade of the RF civil Code, and its possible influence onto the Kazakhstan’ and other CIS states’ Civil Codes. In the following chapter, the author analyzes the notion of juridical construction treating it as a definite model of a legal relation expressed in the sources of law. When formulating definite legal instructions, it is proposed to proceed from some principal postulates underlying the legal regulation of the property relations. For this, the author uses the understanding of the right of property as is accepted in the countries of the continental legal system. The evaluation of the property right theoretical model of the Civil Code of the Republic of Kazakhstan is performed by the author using principal elements of the property right theoretical model proposed by A. A. Rubanov. This allowed to come to three conclusions: 1) in the Civil Code of the republic of Kazakhstan, the material up-keeping of the property is mentioned, this being the basis for the modern legal regulation of the corresponding relations; 2) the property model and property category issues caused by it, different legal statuses have their roots in the feudal and soviet past, being an heritage of old economic and political systems; 3) the existing model of the right of property is a complex one as it contains components of different models and epochs. In the forth chapter, some of the disputable regulations of the property right are viewed concerning the RF Civil Code draft changes. They include the issues of the property right contents, its objects, preserving the property categories. In the conclusion, a variant is proposed to eliminate the disadvantages mentioned above, which the author sees in the necessity to settle the general civil legal regime for the property, in establishing a single right of property for the things existing and limited in the civil circulation. The private tasks for the improvement of the civil law concerning the right of property are: 1) creation of the right of property institution as a part of the “right-to-thing” law branch excluding inter-branch character of some of the existing Civil Code provisions; 2) stopping the trinary tradition in defining the right of property and other rights to things. In this case the essence of the civil and legal regulation of the property relations can be expressed in two principal theses: a) developing the Civil Code based on a general permit to the owner to commit any action concerning a thing, and b) introducing prohibitions for the owner to behave regarding definite categories of the things into the Civil Code and other laws.