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What Is Protected in the Proceedings in Disputes for Disturbance of Possession? On the Notion and Legal Nature of Possession
Vladimir V. Vodinelić
; Pravni fakultet Univerziteta Union u Beogradu, Beograd, Srbija
Sažetak
The article discusses the two of the three most widely discussed aspects of possession: the notion of possession and its legal nature. There are numerous inconsistencies and controversies in the theory and the practice of the two civil law (Continental-European) concepts of possession, despite pregnant formulas (possessio = corpus + animus; Besitz = tatsächlicher Sachherrschaft). The author singles out ten phenomena of the factual nature (such as, direct spatial relationship with a thing, temporary impossibility of carrying out of will regarding to a thing, indirect possession, hereditary possession, etc.), that are under both concepts qualified as possession, although sometimes under different names, and analyses the possibility to find a uniform definition of possession. The existing legal definitions, where the physical control over a thing or good is central, are not useful. Some authors argue that the uniform notion of possession is not possible, because of different functions of possession (so called relativity of the notion of possession), or because of diversity of phenomena to which the possession is related, or because the classic definition of possession is not suitable (per genus proximum et differentiam specificam). The author of this article does not support this view and argues that the uniform definition is possible. In his view it presents a better solution than alternative techniques according to which only some factual phenomena (physical control over a thing or good) can be qualified as possession, whereas for the rest of phenomena can be determined that they are legally equalized with a possession. The author builds the uniform notion of possession functionally and determines the possession as a physical control or factual state in regard to a thing or good that can respond to the right of ownership (owner-possession), to another right (limited-right-possession) or to the obligation (obligation-possession) and for those with respect to which the legal rules on possession are appropriate and not those on detention. The author argues that this definition is not tautological or negative, because a distinction should be made between the possession itself and the legal rules on possession (legal regime of possession) and it is about the legal rules that are sufficiently determined. Also there is no doubt which legal rules are rules on detention (legal regime). Regarding legal nature, possession is a fact (physical control or factual state of certain characteristics), whereas a legal institution of possession is a combination of that fact and legal categories – authorities. Possession as a physical control or state is only one, and that, a factual element of a legal institution of possession. When answering the question, what is protected in the proceedings in disputes for disturbance of possession, it is necessary to take three further elements from the structure of institution of possession, which are legal in their nature: the right of possession, the right to exclude the third persons from affecting the possession and the right to protect the possession. Factual element (physical control and factual state) is not, however, a peculiarity of the legal concept of possession, because some other proprietary rights (such as pledge, retention, rent) have in their structure an element of factual nature besides legal elements as well. Other characteristics of the institution of possessions are: persons entitled to property rights (titulars), for example, an owner or a pledgee can not be the owner or the pledgee respectively if they do not have the right concerned (thus the right of ownership or the right of pledge); but a possessor can be the possessor without having the right of possession. Authorities that constitute ownership or other property rights always have the same legal nature, namely, the property law nature, but the right of possession has such a legal nature that has the right, within which it appears. For example, the right of possession has a nature of the law on obligations, if it is the right of a borrower to possession, but the right of possession has a property law nature, if it is the right of a pledgee to possession. Usually it is suggested that a peculiarity of the proceedings in disputes for disturbance of possession lies in the protection of the fact and not in the protection of rights. But the present author disagrees with this view, because one protects also the right in these proceedings: the right to exclude the third persons from affecting the possession. If this right is infringed, there is the right of the judicial protection of the possession as well as the right of protection of possession out of the court. This right is peculiar among other rights, because it is recognised also in cases when the possessor does not have the basic right in regard to a thing or the right of the possession or even when his possession violates the possessory right of another person. The third basic question on possession is usually formulated as follows: why is the fact protected in the proceedings in disputes for disturbance of possession even if it is not based on right? Instead, it is more appropriate to formulate this third question as follows: why we acknowledge and protect the right to exclude the third persons from affecting the possession in the proceedings in disputes for disturbance of possessions even when this right is based on none of rights to possession?
Ključne riječi
subject of protection in proceedings in disputes for disturbance of possession; definition of possession; physical control; legal concept of possession; right to exclude the third persons
Hrčak ID:
109729
URI
Datum izdavanja:
15.7.2013.
Posjeta: 4.401 *