EVOLUTION AND CURRENT ISSUES OF JUDICIAL PROTECTION OF PROPERTY RIGHTS: ROMAN TRADITIONS AND MODERN CIVIL LAW PRACTICE

Abstract

The article researches the historical and legal evolution of judicial protection of property rights from classical Roman private law to modern domestic civil practice. The legal nature and functional purpose of classical Roman legal structures aimed at returning the thing to the non-possessing owner, removing obstacles to the exercise of the right of ownership, and protecting the bona fide acquirer who did not acquire formal ownership are analyzed. Their influence on the formation of the modern system of material legal methods of protection is determined and the content of the transition from the dependence of protection on the existence of a claim to the priority of subjective law is revealed. The provisions of the domestic civil legislation are characterized and the judicial practice is summarized regarding the distinction between property and legal methods of protection, in particular the criteria for distinguishing the demand for the return of property from the demand for the removal of obstacles to the use or disposal of property. An analysis of the issues of protection of a bona fide acquirer was carried out, within which the relationship between the principle of the impossibility of transferring greater rights than the alienator has and the need for stability of turnover was clarified. The specifics of the correlation of property rights with the state registration of property rights are determined and it is established that the registration record creates a legitimate expectation of property ownership, but does not eliminate the material and legal defects of its acquisition. The transition of judicial practice from a formal to a functional approach in choosing a method of protection is substantiated, in which the decisive factor is the decision's ability to actually restore the person's impaired property status.The standards of property protection at the convention level are revealed, including the autonomous interpretation of the concept of property and the requirement of proportionality of interference with the right to peaceful ownership of property, and the specifics of such protection in conditions of armed aggression and occupation of territories are also characterized. In general, the modern judicial protection of property is not focused on the formal construction of the claim, but on the real restoration of the violated right.