Social function of the property right in the context of the constitutional principle of its inviolability

The article analyzes the constitutional and legal regulation of property relations in the Russian, Belarusian and European legislation. The author concludes that the absence of direct instruction on a social function of property in the former USSR countries can be explained by the conditions in which their constitutions were adopted and by the aims which they pursued. On the contrary, in the special legislation a social function of property is traced better. In the civil legislation there are precepts of law obliging the owner to a certain behavior model by means of establishing various restrictions of the property right and encumbrances of property for the purpose of prevention of the behavior contradicting the law and other legal acts and violating the rights and interests of other persons (Item 2, Article 209 of the Civil Code of the Russian Federation) protected by the law and to public benefit and security as well as harmful for the environment, historical and cultural values (Article 210 of the Civil Code of Belarus). Restrictions of the property right can be set for the benefit of all or many persons (general restrictions), or for the benefit of certain persons or separate types of property (private restrictions). The general requirement to act honestly and reasonably while implementing the property right follows from provisions of the same principle established among the main beginnings of the civil legislation which can be considered as the general restriction of the property right (Article 1 of the Civil Code of the Russian Federation, Article 2 of the Civil Code of Belarus). The article concludes that Russian legislators do not accurately differentiate the concepts "restriction" and "encumbrance" concerning the land plots. As for Belarusian legislators, they consider these concepts as synonymic ones and this is incorrect from our point of view. "To limit" etymologically, means to set some borders, limits in implementation of the right therefore it is necessary to understand the bounds established in implementation of competences of the owner on possession, use and the order of property and also the measure of his due behavior established by the law in civil circulation as restriction of the property right. To encumber means to impose a burden of execution of any hardships. So, by the general rule the owner bears a burden of maintenance of the property belonging to it, i.e. he is obliged to contain property in proper condition, to make concerning property of action, ordered by sanitary, veterinary, fire protection and other standards and to fulfill other requirements.

Keywords

Authors

References