The National Doctrine of Property Rights: Historical Essays

The article examines the historical features of the formation and development of the national doctrine of property rights. The reasons that led to its dynamics and changes in different historical periods of law development: the pre-revolutionary, Soviet and modern are indicated. It is noted that Western Europe doctrines of property rights, mainly French and German, became the basis for Russian, and thus for Ukrainian, civil science to create its own doctrine of property rights. Furthermore, French and German doctrines of property rights mainly focused on and used the experience of Roman private law which indirectly through them would be also adopted by Russian law science and legislation. Basic principles according to which property law was forming and developing in the Romano-Germanic law group, as well as in the domestic legal system on the whole coincided. Their common source was Roman private law. They took it as the basis for their doctrines of property rights, but this didn’t exclude their specifi c characteristics in them, which, however, were largely minor. One of the peculiarities of Russian systematization of property rights, in comparison with French, and then with German, model, in the Code of the Russian Empire laws was a separation of the entire triad powers of the owner as an independent group of property rights. Apart from ownership, rights of possession, use and disposition became the kinds of property rights. The infl uence of German law school increasingly felt in the domestic science of civil law in the late nineteenth and early twentieth centuries. The doctrine of property rights, created by the pandect doctrine in Germany, was favorably accepted by the pre-revolutionary law school in Russian Empire. The list of property rights, presented in the books on Russian civil law, mentioned a priority right of purchase and property duties which were not in the classifi cation of property rights in French law, but were known to German civil law. Fundamental changes occurred in the domestic doctrine of property rights in the Soviet period. It is diffi cult to say about a property rights doctrine in that period. The change of economic structure and political system in the country caused a destructive process of reformatting all the sphere of property relationships. Institute of ownership was transformed like a universal, comprehensive legal framework in the Soviet times. It covered by itself all property relationships. This concept was rejected and generic category of «property right» was returned only in the second half of the 80 years of the twentieth century. Now there is enhanced trend to expand of property rights sphere in the independent Ukraine as in the doctrinal level as well as in the legislation. Based on the research results, the author concludes that the modern Ukrainian doctrine of property rights still retains succession to the pre-revolutionary civil law and the civil law of the Soviet period (in particular, regarding rights of operative administration and economic management) in many aspects. It also includes advanced practices and achievements of other countries, especially France and Germany, which are used according to the features of the civil law of Ukraine, the law traditions and the mentality of the Ukrainian people.