ПРОБЛЕМИ ЗАХИСТУ ПРАВА ВЛАСНОСТІ УКРАЇНСЬКОГО НАРОДУ

Abstract

The article analyses special aspects of legal mechanics of the protection of the right of ownership of the Ukrainian people of objects defined in the Article 13 of the Constitution of Ukraine. The attention is drawn to the fact that the powers of the Ukrainian people, as an independent and at the same time special subject of the right of public ownership, must be established exceptionally by the Constitution and laws of Ukraine. Accordingly, legal mechanics of enforcement and protection of the right of ownership of the Ukrainian people as a collective subject, same as of subjects of other types of public ownership (state and communal), and the right of private ownership, the subjects of which are individualized, cannot be identic. It is argued that the norms of the Civil Code constitute only a part of the legal mechanics of the protection of the right of public ownership. The Civil Code of Ukraine does not establish special norms regarding the enforcement of the right of ownership of the Ukrainian people and its protection, particularly any special limitation of actions. Accordingly, lacunas in part of the regulation of the relations of ownership of the Ukrainian people and other types of public ownership cannot be fully overridden with the help of the norms of Art. 8 of the Civil Code of Ukraine on the analogy of statute and the analogy of law. Judicial protection of public ownership shall be based on the foundations of rule of law, observance of fundamental human rights and application of norms of the Constitution of Ukraine as norms with direct effect. The article analyses the problems of defining the moment of commencement of prescription in cases with participation of a prosecutor representing public interests, and the conclusion is made that the court has the right to find for the prosecutor after the expiration of the limitation of actions. It is argued that because the institute of the acquirer in good faith appeared and developed within the framework of private law, it cannot be unconditionally applied in relations regarding the acquisition of right of ownership of objects that are public ownership. In case of alienation of objects of public ownership of limited transferability or non-transferable, the presumption of an acquirer in bad faith shall be applied. Providing a civil legislative framework for a ten-year special limitation of actions under claims on enforcement of implications of an invalidated transaction infringing public order will contribute to the establishment of effective mechanics of the protection of the right of ownership of the Ukrainian people, the state and communal ownership. Limitation of actions shall not extend to claims of the owner, including the Ukrainian people, the state or a territorial community, or another person, on invalidation of a legal act of a state government body, a government body of the Autonomous Republic of Crimea or a local government body infringing its right of ownership or another right in rem.