Tikhon Podshivalov

The Actio Prohibitoria: Past, Present, and Future

2022. No. 2. P. 164–186 [issue contents]
The purpose of a actio prohibitoria is to eliminate the possibility of a second similar violation of a right in rem, when there are reasonable grounds to believe that the defendant has committed a violation of the same nature. The purpose of the study was to determine the evolution of views on the actio prohibitoria from Roman law to modern private law, and on this basis to propose a legal model of the modern actio prohibitoria. In spite of its long history, the actio prohibitoria remains one of the most unexplored real actions, because it is overshadowed by the actio negatoria, whose scope is very broadly construed.The research was carried out by means of historical method, comparative law methods, and the basic theory of legal understanding was the jurisprudence of concepts, which allows to determine the characteristic features, scope and conditions of satisfaction of the actio prohibitoria. As a result of this study, the following conclusions can be made. Firstly, the evolution of actio prohibitoria has passed through four main stages: parallel existence with actio negatoria; convergence of these real actions; absorption of actio prohibitoria by actio negatoria; renewal of discussion about the relationship between these two real actions, as part of the growing interest in preventive measures of protection. Secondly, it is necessary to expand the list of real actions and to discuss the possibility of separating the actio prohibitoria in modern law. Third, confusion between the prohibitionist interdict and the actio prohibitoria in Roman law is quite common, which creates difficulties for research. Fourth, a actio prohibitoria has the following features: it is an action for an award of inaction; it is preventive in nature; it has a special legal ground of application; and it has a sanction for violation of the injunction in the form of a fine payable in favor of the plaintiff. Fifthly, the actio negatoria and the actio prohibitoria may be aimed at eliminating a future violation, but in different situations — the actio negatoria eliminates a new possible violation, and the actio prohibitoria is focused on eliminating a repeated violation in the future, the prohibition of similar violations.
For citation: Podshivalov T.P. (2022) The Actio Prohibitoria: Past, Present, and Future. Law. Journal of the Higher School of Economics, vol. 15, no. 2, pp. 164–186 (in Russ.). DOI:10.17323/2072-8166.2022.2.164.186.
Citation: Podshivalov T. (2022) Progibitornyy isk: proshloe, nastoyashchee i budushchee [The Actio Prohibitoria: Past, Present, and Future]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 164-186 (in Russian)
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