| Article title | Principles of the Institution of Property Rights Call for Additional Legislative Guarantees |
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| Authors |
OLEKSANDR DZERA
Doctor Habil. in Law, Professor, Corresponding Member of the National Academy of Legal Sciences of Ukraine, Professor of the Civil Law Department of the Faculty of Law Taras Shevtshenko National University of Kyiv (Kyiv, Ukraine) dzerao@gmail.com
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| Magazine name | Legal journal «Law of Ukraine» (Ukrainian version) |
| Magazine number | 1 / 2019 |
| Pages | 75 - 92 |
| Annotation | The article highlights the determinative legal foundations ensuring the efficient implementation of the norms of the ownership right as an institution, the principles of inviolability, in particular the principles of ownership right inviolability, presumption of legality of ownership right acquisition, establishment of the legal regime of ownership only by law, equality of protection of the rights held by each subject of the ownership right, etc. The author maintains that, in general, the norms of the ownership right as an institution ensure that owners exercise the rights of possession and use of property which they own, as enshrined in the Constitution and other laws of Ukraine. The analysis of the Ukrainian legislation regarding property gives grounds for making a conclusion that it is consistent with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. The article also analyzes the problems arising as a result of practical application of current legislation, as well as certain gaps and contradictions present in it, with a special focus on the legal policy of confiscation. It is noted that Article 354 of the Civil Code of Ukraine (Ukraine’s CC), which prescribes deprivation of the ownership right to property by a court decision as a sanction for a committed offense (confiscation), is actually lacking real content and action since it does not define specific grounds for imposing of “property confiscation under civil law”. The author emphasizes that Article 59 of the Criminal Code of Ukraine (Ukraine’s CrC), while providing for property confiscation as a penal measure, lacks certainty regarding the specific extent of property confiscation allowing to confiscate property. The article gives a positive assessment to the provision contained in Article 962 ofUkraine’s CrC establishing that special confiscation shall not apply to the targets of crime and instruments of crime which should be returned to their bona fide owners (legal owners), and at the same time, the author criticizes Article 100 of the Code of Criminal Procedure of Ukraine which provides for confiscation of property of a person convictedfor a corruption offense if the court is unable to confirm the legality of grounds upon which the rights to such property are acquired, as it is contrary to Article 328 of the Civil Code of Ukraine which establishes the presumption of legality with regard to the ownership right acquired by a person. The author challenges the provision of Art. 465 of the Ukrainian Customs Code which provides for confiscation of goods, vehicles in case of violation of customs rules even if they are the property of a person who didn’t commit an offense. The author comes to the conclusion that the anti-corruption legislation does not contain sufficient guarantees for a proper protection of the rights of owners. Thus, the author suggests that a reservation may be incorporated to Article 387 of the Civil Code of Ukraine to the effect that the owner shall be entitled to reclaim the property which was the instrument of crime or the contraband item, if it was used contrary to such person’s will. The article points to significant drawbacks of editorial and substantive nature in the updated Article 228 of Ukraine’s CC which provides for property confiscation under civil law in case of an anti-public transaction, and notes the need for its radical reform. The author proves that there is an inconsistency between requirements of the Constitution of Ukraine, the Civil Code of Ukraine and provisions of Art. 17 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” which establishes the right to file a legal action for invalidation of transactions and grants this right to the National Anti-Corruption Bureau and to any of its employees working under an employment contract. |
| Keywords | ownership; property right; inviolability of property right; confiscation; special confiscation |
| References | List of legal documents Cases Journal articles |
| Electronic version | Download |