Hanzherli A. Waiver of the rights in proprietary relationships.

Українська версія

Thesis for the degree of Candidate of Sciences (CSc)

State registration number

0419U002083

Applicant for

Specialization

  • 12.00.03 - Цивільне право і цивільний процес; сімейне право; міжнародне приватне право

04-04-2019

Specialized Academic Board

Д 64.086.02

Yaroslav Mudryi National law university

Essay

The dissertation is dedicated to examining the legal nature, general conditions and peculiarities of implementing the waiver of subjective civil rights within the property legal relationship. The evolution of legal order of exercising waiver of rights in proprietary civil legal relationships is analyzed and actual level of its scientific knowledge and legal regulation are defined. The proprietary rights waiver is determined as deliberate purposeful volitional act of entitled person that can be exercised as legally significant action or inaction (depending on the specificity of legal regime of appropriate object on which proprietary right exists) and cause the main legal consequence in the form of termination status of belonging appropriate proprietary right, that was previously legally obtained, to such person (property right or derivative proprietary right). The conditions for implementing the waiver of the proprietary rights are established, in particular: 1) the existence of legitimate property right; 2) the necessary dimension of legal capacity of the subject of waiver; 3) the free will of subject of waiver that determines volitional focus on the termination of the property right; 4) the implementation of the waiver in a certain form; 5) the reality of the waiver implementation; 6) compliance of will with the will expression; 7) lack of mutual will between the subject of waiver and the subsequent bearer of the property rights (non-targeted waiver); 8) lack of succession as a consequence of the waiver; 9) compliance of the waiver with the law, the agreement and the moral grounds of society. The author has formed the conclusion that the form of the legal act on the waiver of property right does not directly depend on the form of legal act in which such a right arose. The reason for this, in particular, is the one-sidedness of the waiver and the insufficient normative development of the procedure for the notarization of unilateral legal acts. It is defined that existence of derivative proprietary rights on a thing established from the contract makes impossible waiver of property right to such thing because of its destructive impact on legal basis of derivative proprietary rights that leads to unilateral waiver of obligation. It is discovered that the existence of jural constructions of legal relations, which combine elements of an obligatory and proprietary legal connection, stipulates for the existence of direct and indirect mechanisms of the waiver of derivative rights in civil legal relations. The mechanism of immediate waiver provides for the very refusal of derivative property rights, while retaining the obligations assumed by the subject during the transaction, which became the basis for such rights emergence (if their occurrence was envisaged by a transaction), as well as retaining the eligibilities necessary to fulfill the obligations (usually, eligibilities of ownership). The mechanism of indirect waiver provides for a carrier to refuse derivative property rights from a transaction on the basis of which such rights arose in cases provided for by law. Particular attention is devoted to the consideration of the consequences for the waiver of subjective civil rights in property legal relations, as well as to the definition of the responsibility peculiarities of persons – participants of legal relations for the rejection of rights. It is established that the provisions of the current civil legislation of Ukraine fix such legal models of the consequences of the property right waiver on a thing: 1) the thing automatically becomes the property of a certain subject, for example, the state; 2) when extending the legal status of a ownerless thing to a thing, in some subjects a pre-emptive right arises to acquire ownership of the thing; 3) when a legal regime of ownerless thing is applied to a thing, it becomes available for the acquisition of the ownership right to it by legal relations participants on a competitive basis.

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