Negative lawsuit

Negative lawsuit (from lat. Negaterius - “negative”) is a lawsuit representing an extra-contractual requirement of the owner of the thing to third parties to remove obstacles related to the exercise of the powers to use and dispose of property .

Content

Negative claim legislation

Negative lawsuit was known to Roman law as actio negatoria (literally “denial of claim”). In Russia, the concept of a negative claim is given in Art. 304 of the Civil Code of the Russian Federation "Protection of the rights of the owner from violations not related to deprivation of possession" ^[1] . A similar textual expression has a negative claim in the legislation of a number of countries neighboring the Russian Federation: Art. 293 of the Civil Code of Abkhazia, Art. 277 Civil Code of Armenia, Art. 285 of the Civil Code of Belarus, Art. 264 of the Civil Code of Kazakhstan, paragraph 2 of Art. 289 of the Civil Code of Kyrgyzstan, Art. 325 Civil Code of Tajikistan, Art. 231 Civil Code of Uzbekistan, Art. 391 Civil Code of Ukraine.

Negative Claim Structure

The basis of a negative claim is the circumstances justifying the plaintiff’s right to use and dispose of the property, as well as confirming that the behavior of a third party creates an obstacle to the implementation of the above powers. Negative claim is not associated with the deprivation of ownership . Therefore, the plaintiff in a negative claim may be:

owner
title owner, including the right of which is based on the contract ;
subject of limited property law .

Negative Defendant - a person who, by his unlawful actions, prevents the plaintiff from fully exercising the above powers.

In addition to satisfying the claim indicated in the negative claim, the plaintiff may demand from the defendant compensation for losses caused to him, as well as compensation for harm.

Value of Negative Claim and Easement Claim

A negative lawsuit was filed to protect property from claims for easement: someone claims that he has the right to travel through my site, while this, in my opinion, is not. To reflect such a claim for easement, the owner already has a lawsuit, later called actio negatoria, in the old civil law. In the legislative process, this lawsuit began with the owner’s statement in court - for example: “ajo jus tibi non esse eundi agendi in fundo meo”, to which the defendant said: “ajo jus mihi esse eundi agendi” etc .; then provocatio sacramento followed, etc. The claim is filed through the formula “Si paret No No jus non esse eundi agendi ... judex condemna, si non paret absolve”. Along with this actio negatoria in classical law, apparently, there was also some kind of it - actio prohibitoria ("si paret Ao Ao jus esse prohibendi Nm Nm uti frui"), perhaps used to protect property from praetor servitude (Lenel) ; but we are not well informed about this species. The goal of actio negatoria is to recognize freedom of ownership from the alleged easement and to ensure against further encroachment - cautio de non amplius turbando.

Negative Protection Issues

In the theory of civil law, a dispute is currently underway, the essence of which is to justify that a negative claim is not a universal way to protect property rights. This opinion is upheld in contrast to the prevailing opinion that a negative claim is a means of protection against any violation of property rights, if only this violation were not connected with the deprivation of ownership. So, T. P. Podshivalov writes: “Giving excessive universality to a negative lawsuit is also unfavorable because it narrows the list of ways to protect property rights and makes it more meager.”

Notes

↑ Civil Code of the Russian Federation of November 30, 1994 No. 51-ФЗ (as amended and additional) - Part 1 // Collection of the legislation of the Russian Federation , December 5 , 1994, No. 32, Art. 3301, Russian newspaper , No. 238-239, 12/08/1994

Sources

Negative lawsuit // Willow - Italics. - M .: Soviet Encyclopedia, 1972. - ( Great Soviet Encyclopedia : [in 30 vols.] / Ch. Ed. A. M. Prokhorov ; 1969-1978, vol. 10).
Negative lawsuit // Brockhaus and Efron Encyclopedic Dictionary : in 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.
Zaykov A.V. Roman private law. 2nd ed. - M .: Yurayt, 2017 .-- S. 200, 215, 245, 247 (about a negative claim in Roman law), p. 417 (negative claim formula).
Podshivalov T.P. Concept and characteristic of a negative claim // Notary. - 2009. - No. 2. - S. 25-28.
Mullanurov A. A. Legal and proprietary methods of protecting property rights to real estate // Bulletin of the Khabarovsk State Academy of Economics and Law. - 2004. - No. 1.
Novoselova A.A., Podshivalov T.P. Real Claims: Problems of Theory and Practice - M .: INFRA-M, 2012.
Protection of Civil Rights // Pokrovsky I. A. History of Roman Law. - SPb .: Publishing and trading house "Summer Garden", 1999.
Podshivalov T.P. Negative lawsuit: problems of theory and law enforcement practice // Russian judge. 2010. No. 10.
Podshivalov T.P. Negative claim and protection of rights to real estate // LAW. - 2011. - No. 1. - S. 86-95.

[1] Civil Code of the Russian Federation of November 30, 1994 No. 51-ФЗ (as amended and additional) - Part 1 // Collection of the legislation of the Russian Federation , December 5 , 1994, No. 32, Art. 3301, Russian newspaper , No. 238-239, 12/08/1994