Limited property rights and peculiarities of their civil protection

The current civil legislation uses two methods to resolve the issue of attributing a right to someone else's thing to limited real rights: first, it defines the signs of limited real rights, and, secondly, it offers an approximate list of them (Article 216 of the Civil Code of the Russian Federation). The analysis of these criteria has shown the difficulty of using them due to the lack of a normative definition of such a feature as belonging to real rights, designation as a general feature of the property of following, which characterizes the rights of obligations, as well as a mixture of signs of limited real rights and signs of their legal regime, i.e. the order, the mood of legal regulation. It does not allow defining the boundaries of limited property rights and their list, since it is incomplete and open in nature. Meanwhile, the continuing ambiguity with the affiliation of a right to someone else's thing to limited real rights, the lack of an accurate statement of their content negatively affects the solution of the issue of the application of real-law methods of protection (property claims). The range of possible ways to protect real rights also requires legislative clarification, which, along with the vindication and negatory claims named in the Civil Code, by virtue of established judicial practice, should include such methods aimed at restoring direct impact on the thing as recognition of real rights and release of property from seizure. Established in art. 305 CC the relationship between the right to use property claims and the existence of the right of possession as part of a limited property right creates uncertainty about the competence of holders of easement rights to use them, which can be eliminated by specifying acceptable ways to protect the easement, as well as the conditions for their application. When describing such a method of protection as the recognition of property rights, the legislator must not only indicate the possibility of its application to exclude an invalid entry from the Unified State Register, but also create conditions for its application to protect the right of economic management and operational management as special property rights to manage the property of the owner. Along with the conditions common to the recognition of ownership rights (the presence of a real right to a disputed real estate object, the presence of an immovable thing in kind and actual possession of it), a necessary condition for the recognition of these limited real rights is the presence of the founder's ownership right to the object, confirmed by an entry in the register, and in case of challenging the right of economic management of another enterprise - the fact of violation the owner of the prohibition on the disposal of the property assigned to the enterprise. The authors declare no conflicts of interests.

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