On the qualification of real rights

The introduction of this article briefly describes the current state of the research problem. It is emphasized that traditional features of proprietary rights (inextricable link of the right to a thing, direct domination of the authorized person over a thing, fixation of the list and reasons of occurrence of property rights in law, the absolute nature and protection of proprietary claims, perpetuality, following of a thing, and so on) are attributed to a number of obligations. This situation shows the unresolved problem of the aforesaid, including blending the essence of real rights to certain external manifestations of it. The author believes that there is a need to use a system of interconnected criteria for the recognition of subjective right as right in rem. Firstly, the subjective property right informs the holder of his opportunity to, at least, possess and use the thing at its own discretion, i.e. to physically touch, contact with a thing with the extraction of its useful properties. Thus, the ownership is to be understood not only as the actual physical possession of a thing or control of it, but also as the possibility of an arbitrary, i.e. depending on the owner's will, establishment of instant physical possession or control. Secondly, the subject of the limited real right has no obligation to return a thing given in his possession in the prescribed manner. This explains that the thing for him is his own. Limited property right holders have the obligation to return a thing to the owner as persons categorized as a third party obliged to the owner at the time of the termination of this right (in some cases - due to the expiry of the existence of the right). The theoretical provision stating that the owner of a limited real right is not obliged to return the object of their right to the owner has an obvious practical significance: if a thing is destroyed or damaged, the mentioned persons under no circumstances may be bound by the protective commitment of violation of regulatory obligations often arising without the fault of the offender. In this case, only tort liability is real; it appears as a general rule by the guilty conduct of the tortfeasor. The third feature of property rights is their statutory numerus clausus. In particular, if regulatory liability rights laws do not provide for can easily be constructed by subjects of transactions, then, but for the law, no one could identify the content of rights in rem.

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