Expropriation in a material sense

• Main Author: Prica Miloš
• Format: Article
• Language: English
• Published: Faculty of Law, Niš 2020-01-01
• Series: Zbornik Radova Pravnog Fakulteta u Nišu
• Subjects: formal expropriation; expropriation in a material sense; quasiexpropriation; expropriation as a legal institute; de-expropriation
• Online Access: https://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2020/0350-85012089139P.pdf
• ISSN: 0350-8501; 2560-3116

Expropriation as a legal institute is both narrower and broader than expropriation in a formal sense (formal expropriation). Expropriation in a formal sense implies a due legal process of revoking or restricting the ownership right in a particular legal case by the operation of the law. Formal expropriation generates the establishment of various legal institutes, one of which is expropriation in a material sense. On the other hand, expropriation as a legal institute emerges outside the scope of formal expropriation), which occurs within the framework of restricting one's private ownership, as a result of direct statutory regulation (legislation) in particular areas of the legal order, and a result of the legal regulation in particular cases in judicial and other legal proceedings. Expropriation in a material sense exists only in cases where the transformation of private ownership into public ownership occurs through expropriation in a formal sense, for the purpose of achieving a specifically designated general interest, including the possibility of return to the previous state of affairs (de-expropriation). De-expropriation takes place at the request of the former owner if it is established that the intended purpose of expropriation has not been achieved. In effect, the possibility of de-expropriation is the differentia specifica that separates expropriation in a material sense from other legal institutes related to expropriation in a formal sense, as well as from quasi-expropriation and other forms of revoking and restricting the private ownership right under the legal authority of the state.