Self-defence of Possession under the Current and Updated Provisions of the Civil Code of Ukraine

Abstract

In the current civil legislation of Ukraine, the rules on self-defence of non-title possession are an underdeveloped institution. The critical remark concerns the absence in the Civil Code of Ukraine or other acts of civil legislation of both the legal definition of non-title possession and the norms that would declare general legal permission to exercise self-defence of possession, establish legal requirements for participants in such protection, and set legal limits on the use of certain methods of self-defence of possession by individuals. In view of this, the draft provisions of the updated Civil Code of Ukraine, which fill the above-mentioned gaps in civil legislation, deserve approval. At the same time, the work criticises certain draft rules of the updated Civil Code of Ukraine for their inconsistent application of legislative techniques.

Based on the research conducted, the following conclusions have been made. Self-defence of possession is a means of counteraction, primarily of a factual nature, carried out by the possessor (a third party in the interests of the possessor) without recourse to jurisdictional bodies (officials), which is chosen by the subjects of this form of defence at their discretion, but taking into account the general and special civil law requirements imposed by the law on self-defence in general and self-defence of possession in particular. The object of self-defence of possession is the property and other property-related interests of possessors. The subjects of self-defence of possession can be both the possessors themselves and third parties acting in the interests of the possessors. The means of self-defence of possession must not contradict the imperative provisions of civil law, the general principles of private law, including the rules of good morals (boni mores), and they must be prompt (immediate) and proportionate (corresponding to the content of the possessory interests that are being violated, the nature of the actions by which they are being violated, and the consequences that are or may be caused by this violation).

The need for further development (detailing) of the material on the formulation of criteria for the legitimacy of the application of self-defence of possession is emphasised, since the article focuses mainly on describing the general characteristics of self-defence of possession.