Izvorni znanstveni članak
The Concept of the General vindicatio Action in the Roman Legal Tradition and de lege ferenda
Marko Petrak
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The concept of the general vindicatio action, regardless of its various possible objects (res, servitus, filius etc.), was found only in the archaic period of Roman law. Conversely, contemporary property law systems provide for several specific and different types of vindicatio actions (rei vindicatio, actio Publiciana, actio confessoria, vindicatio pignoris). The concepts of specific and “nominate” vindicatio actions were inherited from classical Roman law, where a property right was recognised only if there was a corresponding type of action (ubi actio ibi ius). However, contemporary property law systems, unlike classical Roman law, do not represent a system of specific and “nominate” vindicatio actions, but instead envisage a system of substantive subjective rights (ubi ius ibi actio). This means that specific subjective property rights would not cease to exist even if the specific and “nominate” vindicatio actions, which protect these rights, were to be abolished. The author concludes that the systems of specific and “nominate” vindicatio actions in contemporary property law have become superfluous. Moreover, the author deems the regulation of vindicatio protection in current Croatian regulations to be too fragmented, casuistic, and in some aspects dogmatically inconsistent. In order to remove these drawbacks, as the author proposes, the current system of several specific and “nominate” vindicatio actions should be abandoned, and, de lege ferenda as in archaic Roman law, vindicatio should be reconceived in one single and general form. Incidentally, the condictio action went through a similar transformation from the original Roman uniformity, through classical multiformity, and back to modern uniformity of a general action. For this reason, the author advocates a reintroduction of the general conception of the vindicatio action. Such an action would be universally applicable in all cases in which the holder of a certain property right, claiming his proved or presumed subjective property right to the possession of a certain thing or right, requires the unauthorised possessor to hand over possession of that thing or right. The author believes that this reform would simplify and improve the system of property rights protection, in both dogmatic and legislative terms.
Ključne riječi
actio; vindicatio; Roman law; property law; protection of rights
Hrčak ID:
116256
URI
Datum izdavanja:
30.12.2013.
Posjeta: 3.724 *