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  • Risks of Vindication Concerning the Requirement of Verification the 'Legal Purity' of Property (Necessity of Examination of Title)

Risks of Vindication Concerning the Requirement of Verification the 'Legal Purity' of Property (Necessity of Examination of Title)

Student: Guseva Anastasiya

Supervisor: Irina Emelkina

Faculty: Faculty of Law

Educational Programme: Civil and Criminal Defense Lawyer (Master)

Year of Graduation: 2020

The aim of the present work is a research of the risks of vindication concerning the requirement of verification the 'legal purity' of property (necessity of examination of title). The majority of vindication disputes are related to the recovery of real estate. In this connection many problems are caused by the disadvantages of the Russian registration system. In the dissertation it is considered many problems of vindication and the associated risks. Author analyses the legislative innovations that entered into force on January 1, 2020 (incorporation into the Civil Code of the Russian Federation subparagraph 3 of paragraph 6 of article 8.1 and paragraph 4 of article 302). The key risks of vindication are related to a concept of bona fide purchaser and a disposal of property beyond the will of the owner. For this reason, it is analysed the good faith in the context of vindication, a procedural aspect – the burden of proof and the place of onerousness. It is determined that there is the absence of the necessity to distinguish the subjective good faith. The author examines in detail the will aspect of the disposal of property, including among various categories of subjects of civil law (incapable persons, legal entities, public law entities). It is made a conclusion how the will of a legal entity and public law education should be determined. It is proposed to consider the Russian Federation, its territorial entities and municipal formations as a single public entity in the context of determination of a will to dispose property. It is necessary to protect the rights of property purchasers. In connection with the identified risks, the author proposes mechanisms to strengthen the role of the Unified State Register of Real Estate (to increase the degree of its reliability), including using the deadline for the irrevocability of registered rights and the mandatory notary form for transactions with real estate. Author researches concepts of actual and book ownership and a concept of dual ownership. In the context of the analysis of the disposal of real estate, it is proposed to use such categories as direct and indirect ownership. So the real estate ownership should be considered both through the prism of actual ownership and the concept of book ownership. The author carries out the analysis of the theoretical ideas of scientists on various aspects related to vindication. The legal positions of the Russian judicial practice are also used in this work. This dissertation contains conclusions which can be used to improve Russian legislation, as well as to prove the position of a party in a vindication dispute.

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