M.V. Zakoshanskiy

A Vindicatory Dispute Evolution

2015. No. 3. P. 42–49 [issue contents]
The article is devoted to historical analysis of proprietary claims’ legal nature. The work objective isidentification of owners’ protection rights functioning issues by way of claiming from other persons’unlawful possession. The author undertakes the analysis of mandatory and optional elements of fact tobe proven under vindication action, and examines formation possibilities of modern petitory protection ways based on classic civil constructions. Attention to foundation protection principles is conditional upon, in the first place, the necessity to understand, could new active participants of property relationsbe securely protected by old methods? Would application-of-basics-by-analogy approach be effective in the view of absence of modern deep theoretical developments targeted on property reservation? What are prerequisites form of creation of adequate protection mechanism in frames of existing legal paradigm? Continuous civil discussions, generated by commercial court’s practice on claiming from other persons’ unlawful possession issues of undocumented securities, which are non-material objectsby their essence, formed a ground for critical approach in studying the variety of ways which a legitimate owner has. On one hand, far not unity national community of theoretical securities specialists and, on the other hand, uniformed, consolidated system of Russian courts with a universal and actual application methodology of securities owners protection rules, allowed to hark back to classic Western jurisprudence in search of answers as an ultimate source of solutions and constructions, which we may need today more than ever before. The author also examines prerequisites for new understanding of basic protection ways, in particular, extrapolation of proprietary rights to non-material objects. Considerationof main action types with proprietary nature allow to provide answers to questions, arising from origination and formation of modern action on claiming from other persons’ unlawful possession, whichis, to our vision, the most effective protection method for a man of property incepted during the period of ancient Roman law.
Citation: Zakoshanskiy M. (2015) Evolyutsiya vindikatsionnogo spora [A Vindicatory Dispute Evolution]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 42-49 (in Russian)
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