RIGHT DEPRIVATION IN THE LEGAL REGULATION MECHANISM OF CIVIL PROPERTY RELATIONS.

Author:Kostruba, Anatoliy V.
 
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INTRODUCTION

In the science of land law, scientists identify a special kind of legal relations-land procedural legal relations-meaning such that regulate norms, establish an order of creation, change or termination of land legal relations. This poses a question regarding the inclusion of subjects that, according to land legislation, are not direct participants in land legal relations but without their involvement the realization of legal provision regarding compulsory acquisition. These subjects are courts, some specific state agencies (enforcement agencies, internal affairs agencies, military or emergency management agencies, etc.). In our opinion, the main criteria regarding the possibility of including into the list of subjects the corresponding legal relations are a direct participation of a corresponding agency or a physical, legal party and the existence of their interest in exercising compulsory acquisition. Assuming that the discussed state agencies are exercising a direct acquisition benefiting the state and are interested in executing functions of direct acquisition imposed upon them by the legislation, they can be categorized as subjects of the studied legal relations. The involvement of courts in the studied legal relations is instrumental since it is courts that sanction decision about a possibility of compulsory acquisition of an estate in most cases (Kostruba, 2017). These considerations justify the inclusion of courts as subjects of legal relations of compulsory acquisition of estates.

In a state and law theory, the content of legal relations is understood as rights and obligations of their participants. Therefore, the content of the studied legal relation can be considered rights and obligations of subjects regarding compulsory transition of a right to an estate. The structure of the content can be simple (subjective law and legal responsibility) and complex (for public officials-authority, legal responsibility). While subjective law is understood as provided and protected by state extent (limit) of the possible (permitted) behavior of an individual towards the satisfaction of their legal interests that are envisaged by objective law. Unlike objective law, which acts as a total or a system of existing legal norms, subjective law acts as law that belongs only to a specific subject and is realized solely by the expression of the will of this individual.

When describing the content of studied legal relations based on these attributes, the following should be noted. Participants enter the corresponding legal relations not voluntarily. The reason for their participation in legal relations can be different-unlawful behavior (crime, offence or civil violation), not reaching an agreement with state agencies or local administration concerning a voluntary acquisition of an estate or other causes. In our opinion, this reason causes existing domination of legal responsibilities of subjects of legal relations over their subjective rights. Subjective behavior of state agencies and their public officials is strictly limited by the authority provided to them in accordance with the current legislation. Only strict abidance to law and acting within specific boundaries allows us to acknowledge the process of compulsory acquisition of an estate as legitimate. At the same time, during specific stages of compulsory acquisition, law provides an individual with several possible variants of its behavior (legal content), such as the possibility to accept a compensation offer for an estate or provision of another estate in exchange for the one being acquired. Nevertheless, the real behavior of an individual (factual content) allows us to make conclusions that in such case an individual does not use granted to him subjective rights, which is followed by their legal responsibility to participate in studied legal relations (Ushakov et al., 2017).

Legal regulation of compulsory acquisition of estates should be examined starting from a number of sources of law and their influence on regulation. Despite the fact that the modern law theory differentiates the following main forms of sources of law: normative-legal act, normative legal agreement, legal precedent, legal custom, authorities, authors consider application of legal customs in the sphere of compulsory acquisition of estates impossible due to the following. Constitutions of most countries state that the right of ownership over land is acquired and realized by citizens, legal parties and the state only in accordance with law. Additionally, the order and foundation of compulsory deprivation of ownership rights can be established only by law. Therefore, it is impossible to apply legal customs in the sphere of compulsory acquisition of estates (Lukiyanova, 2014; Lukiyanova et al., 2017; Rathi and Lee, 2018).

LITERATURE REVIEW

In Roman law, "acquisition" was called "any act which transferred the ownership right". Pomponius stated in his works that during acquisition we transfer to someone else the property with a condition that property would be in if it still was ours, and that is the course for all civil law (Wellman, 1995). Simmons wrote that acquisition in its narrow sense is termination of an ownership right through its transfer to another person, and, therefore, it is only subjectively a termination of a right, meaning that it's a termination for this person, while objectively acquired right continues to exist for another person with the same content and the same specifics that distinguished it before an acquisition act (Simmons, 1995). Macklin reached this conclusion when analyzing methods of establishing subjective rights in civil law (Macklin, 1993). It is worth noting that Alcantara is not the only representative of the pre-revolutionary civil law who gave attention to the essence of acquisitions (Alcantara, 1996). This question received a deep comprehension in the work of Bradford where the author analyses different methods of termination and forfeiture of an ownership right (Bradford, 2005). Meanwhile, one researcher notes that acquisition can be viewed both in its wide and narrow senses (Arya, 2006). In its wide sense-it is a loss of an ownership right. In its narrow sense-it is a voluntary transfer of ownership rights from one person to another. This way, according to the narrow (immediate) understanding, the latter is a voluntary legal act, which must result in a transfer of rights to another person, and as a result, the previous owner loses this right (Ellerman, 2010). The emphasis on the voluntary nature of acquisition is not random since the author clearly understood that this act is based on a voluntary expression of will of a rights-holder. Though later in the text, the author uses the term "acquisition" to denote compulsory transfer of rights on the basis of confiscation and expropriation. These cases he calls "compulsory acquisition", which is performed independently from the will of a rights-holder (Murray, 2014).

When analyzing the current legislation, Duncanson identifies such forms of usage and understanding of the term "acquisition'"acquisition" is used as an ancestral category to signify the whole of transition (transfer) mechanism of property (rights) from one party to another at the discretion of an owner or without it; "acquisition" can be used as a category of types, more specifically as one of the reasons to terminate an ownership right, and in such understanding it should be determined in a way where the owner of an item (property) on at their own discretion performs a transfer of an item (ownership right) to another person (Duncanson, 2009).

METHODOLOGY

The work uses the method of legal analysis since the main doctrinal understanding is based on the possibility to predict legal construction by the qualitative content of legal acts.

The development of legal regulation of any state institution is unimaginable without considering international legal norms in the form of international principles, agreements and recommendations. International law provides modern global rule of law, has a deep influence in the system of its norms, directs the development of domestic national law, acts as criteria for the lawfulness of state's behavior on an international level and in an internal sphere of social-legal relations. The existence of international conventions, double-sided and many-sided agreements, creation of non-governmental human rights bodies determine harmonization and unification of national legal systems of different countries. That is why when advancing legal institutions of any country it is necessary to take into account international legal principles and norms, as well as their practices in certain countries (Lerat, 2013; Baynova et al., 2016).

The institute of compulsory acquisition of estates is familiar to legislations of all countries in different forms. As a rule, common international approach regarding compulsory acquisition of objects of private ownership rights by governments is based on recognition of every state's sovereignty on its territory, the existence of specific exclusive law that determines the character and content of ownership rights, also establishment of a specific order concerning its purchase, transition or forfeiture.

RESULTS AND DISCUSSION

A specific unification of order of exercising such compulsory acquisition and establishment of specific guideline list of reasons for the acquisition. According to Protocol 1 article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. Among the instruments the state uses to perform compulsory acquisition of estates and specific international-legal doctrines, there are expropriation, repurchase and compulsory acquisition in the public interest...

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