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Emukhvari R.R. On the Legal Nature of Pledge in Light of the Civil Code Reform of the Russian Federation

DOI: https://doi.org/10.15688/lc.jvolsu.2017.3.12

Ruslan R. Emukhvari, Degree-Seeking Student, Department of Civil Law Disciplines, Moscow Academy of Economics and Law, Court Session Secretary, Arbitration Court of the City of Moscow, Varshavskoe shosse, 23, 117105 Moscow, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.


Introduction: taking into account the analysis of the provisions of the current Civil Code of the Russian Federation on pledge, the provisions of the Development Concept of the Legislation on Property Law, the author of the article investigates the legal nature of pledge. In the civil law doctrine the existing points of view on the legal nature of pledge of property can be divided into the following groups: some consider the lien as part of property law; others qualify pledge as the category of contractual rights; still others insist on the mixed nature of the right of pledge and give it the proprietary-contractual features. In pursuing this aim, the author examines the difficulties arising from the imperfection of the legal regulation of pledge in the current Russian legislation. With the help of the scientific methods, especially the methods of system analysis and the comparative law method, it is established that the doctrine and practice do not put an end to the dispute about the nature of pledge as a proprietary or
contractual right. Results: there are highlighted the approaches to the consideration of proprietary, contractual or proprietary-contractual nature of pledge which exist in the civil law doctrine. The judicial practice is focused. It is indicated that pledge is not formally recognized as a proprietary right in the modern judicial practice; there are opposite viewpoints on the approximation of the legal regime of pledge rights, as well as other rights similar to proprietary ones (e.g., leasehold rights), and the legal regime of “classical” proprietary rights (right of ownership, rights of servitude, etc.). Conclusions: there was drawn the conclusion on the dual nature of the right under study. Pledge can only be defined as the proprietary and contractual institution, because it is impossible to clearly qualify it either as a proprietary or contractual right.

Key words: pledge, legal nature of pledge, proprietary right, contractual right, the Development Concept of the Legislation on Property Law.

 

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