Absoluteness of ownership in French law
Some of the developed Western European countries and countries of East Europe that are in transition process, found themselves at different conceptual and ideological positions, regarding the notional characteristics of ownership and understanding it's absoluteness. The East of Europe, which wa...
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| Format: | Article |
| Language: | English |
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University of Novi Sad, Faculty of Law
2014-01-01
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| Series: | Zbornik Radova: Pravni Fakultet u Novom Sadu |
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| Online Access: | http://scindeks-clanci.ceon.rs/data/pdf/0550-2179/2014/0550-21791404085N.pdf |
| Summary: | Some of the developed Western European countries and countries of East Europe that are in transition process, found themselves at different conceptual and ideological positions, regarding the notional characteristics of ownership and understanding it's absoluteness. The East of Europe, which was, for decades, known for excessive state interventionism and drastic reducing of private property, is today dominated by the neoliberal concept. In the West, which is traditionally regarded as symbol of liberty and democracy, the state increasingly interferes in property rights, and limits ownership to a substantial extent. In legal systems of almost all European countries, exist norms which grant the owner of things a great deal of freedom, while, at the same time, they prescribe the possibility for the ownership rights to be limited. The difference, however, lies in the fact that in the majority of Eastern European countries, it is prescribed that the limitations can be introduced only through laws, while in certain Western European countries, it is possible to do so, by means of general acts of lower legal strength, enacted by bodies of executive power. Such normative solution exists in the French Civil Code. It allowed for the ownership, qualified as the most absolute, to be substantially limited, by means of special laws, and bylaws. Certain limitations have been introduced through practice of the Court of Cassation. A testimony to that is provided by the so called historical decisions, based on which, theories on abuse of rights (Théorie de l'abus de droit) and excessive disturbance of neighborhood (Théorie des troubles anormaux du voisinage), were developed. Some court decisions and legal literature state that ownership is no longer absolute. Similar conceptual positions are shared by the Court of Justice of the European Union, which is responsible for shaping the supranational law The liberal model which is widespread in the East of Europe offers the citizens a greater level of legal certainity, since limitations can be introduced only by law. On the other hand, the interventionistic (etatistic) approach, developed in France and in some other countries, allows for a more efficient protection of public interests, by the bodies of executive power, which can be of great importance, in the times of economic crisis and social instability. The choice of regulative model and direction of development of ownership relations lies in the domain of legal politics. |
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| ISSN: | 0550-2179 2406-1255 |