Comparative Characteristic Of The Institution Of Possession According To The Legislation Of Ukraine And Germany

Abstract

The article analyzes the approaches of the civil legislation of Ukraine and Germany to the institute of possession, a comparative description of the relevant terms as well as the author’s vision of the solutions of problematic aspects of the subject under study.According to the Civil law of Ukraine the right of ownership is one of the forms of the property rights for another’s property. The BUrgerliches Gesetzbuch determines the ownership as is a separate property right, which is considered as an actual holding of things. Distinction between possession and temporary holding is not performed until the ground of holding is proven. German civil law distinguishes three categories of actual holders: direct, indirect and «persons performing actual domination over the thing for the holder».

While regulation of ownership as a property right the legislation of Ukraine failed the final demarcation of the terms «right of possession» and «actual possession». The legislator does not directly determine the actual ownership, while not denying the possibility of its existence. The model of the Institute of ownership, determined by the Civil law of Ukraine is unfinished and needs to be improved. Acceptable for the implementation into the Ukrainian civil law is the legal regulation of the institution of ownership inherent in the BUrgerliches Gesetzbuch. Possession should be regarded as an independent institution of property law, which covers all types of ownership: possession of the owner, a derivative ownership of the subject of the limited property rights (legal ownership), illegal possession of good faith of another’s property, which is associated with the perception of separation of ownership into the direct and indirect, independent and dependent.