Open AccessLegal consequences of an excess of the property’s owner in the Civil Law in Russia and Germany
Author(s) -
А. А. Щербаков
Publication year - 2019
Publication title -
pravo i upravlenie. xxi vek
Language(s) - English
Resource type - Journals
eISSN - 2587-5736
pISSN - 2073-8420
DOI - 10.24833/2073-8420-2019-2-51-38-44
Subject(s) - impossibility , law , possession (linguistics) , balance (ability) , legislation , civil code , political science , civil law (civil law) , property (philosophy) , unjust enrichment , law and economics , sociology , commercial law , restitution , medicine , philosophy , linguistics , epistemology , physical medicine and rehabilitation
. The article based on the methods of systems analysis and comparative law studies the legal consequences of the impossibility for the proprietor to return the thing requested by the owner as a result of the loss of the latter. The concept of “excess” in the civil law of Germany is discussed. The issue of competition of claims in the recovery by the owner of property from someone else’s illegal possession is resolved. The legal status of a bona fide and unfair proprietor in the event of “excess” in Russia and Germany is considered. Materials and Methods. The main methods of this study are the system analysis of legislation, the analysis of scientific literature, and the comparative legal method of research. Results of the Study. The main conclusion is the absence of a systemic and fair regulation of the position of a bona fide proprietor in Russia who is not able to return the thing to the owner in kind. The consequence of this is a violation of the balance of interests of the owner and the proprietor of the thing. The practical result of the study is a series of proposals for amending the institutions of vindication and unjust enrichment in the Civil Code of the Russian Federation Discussion and Conclusion. Regulation of property relations requires the obligatory observance of the balance of rights not only of the participants of relations, but also of society and the state. Imbalance can lead to unjustified infringement of the rights of participants in legal relations.