THE CONTENT AND TIME COORDINATES OF THE PROTECTION OF THE RIGHT ACQUIRED BY A BONA FIDE SUBJECT UPON RECEIVING A THING FROM AN UNAUTHORIZED ALIENATOR

Abstract

This article is devoted to the study of the topical issue of the legal status of a person who in good faith has acquired property from an unauthorized third party and continues to maintain it. What right does the occupier get? In scientific works, the question that no authority is acquired at all is no longer relevant, because the one who transferred the thing did not have the right to do so. Today, researchers agree that the acquirer receives the right, but there are fundamental disagreements about its content: some insist that ownership is acquired, others prove that it is the right to untitled possession. The author supports the concept that, in the event that the property left the owner’s possession without a defect of his will (it was not stolen or lost, etc.), the good conscience of the acquirer is the factor that determines the transfer of ownership to him at the time of the transfer of the thing. Developing this thesis, it is proved that the vindication process in such a case is not a proper way to protect the lost possession, because the plaintiff is not its subject at the time of the dispute. After all, Art. 330 of the Civil Code clearly states that a bona fide acquirer receives ownership of property from an unauthorized third party at the moment of its transfer. Therefore, objections to vindication are important as an argument that the defendant has a right and the plaintiff does not have it, and is not a factor determining the taking of property or leaving it with the occupier. When presenting a vindication claim in such a case, the acquirer, contrary to the opinion widespread in the literature and law enforcement practice, must refer to his good conscience, applying the rule of Article 330 of the Civil Code, and not Art. 388 of the CCU. Thus, he will oppose the demand for the claim of property with his right of ownership, and the court should refuse the claimant precisely because he does not have the authority for the protection of which he applied. Also, the work refutes the doctrinal paradigm regarding the fact that the acquirer receives the right of possession, which can turn into ownership only after the court refuses to vindicate. The main disadvantage of such a legal construction is that the property right remains outside the regulation in the event that a vindication claim is not filed at all. In such a case, if the commented rule is followed, the availability of the bona fide acquirer of the right of ownership and the moment of its occurrence will depend on the existence of such a claim.