PROTECTION OF PROPERTY RIGHT TO REAL ESTATE IN CASE OF REFUSAL TO PROVIDE ITS PRIMARY STATE REGISTRATION: THE CONCEPTUAL PROBLEMS IN LIGHT OF THE CONSTITUTIONAL COURT OF UKRAINE CONCLUSIONS

УДК 347.122:347.214.2(477)

ORCID: 0000-0001-7337-7907

DOI 10.37566/2707-6849-2023-3(44)-6

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Denys SPIESIVTSEV,

Associate Professor, Department of Civil Law Disciplines Lesya Ukrainka Volyn National University Candidate of Science of Law

PROTECTION OF PROPERTY RIGHT TO REAL ESTATE IN CASE OF REFUSAL TO PROVIDE ITS PRIMARY STATE REGISTRATION: THE CONCEPTUAL PROBLEMS IN LIGHT OF THE CONSTITUTIONAL COURT OF UKRAINE CONCLUSIONS

The article deals with determination of the problem aspects of juridical possibility (admissibility) or impossibility (inadmissibility) of protection of property right to real estate in case of refusal of registration subject (particularly state registrar) to provide the state registration of such a right within juridical mechanism of the original right-acquisition.

The author highlights the essence of right-establishing and right-proving conceptions of state registration in sphere of real estate civil circulation. The legal opinions formulated in the judgment of the Constitutional Court of Ukraine of November 16, 2022 in case No 3-270/2019(6302/19) are analyzed.

It is concluded that taking into account the subject-matter of the case had been listened by the Constitutional Court of Ukraine the conclusions made by the court deals mostly with the juridical consequences of nullification of right registration decision particularly in aspect of interference with the right, concepts of legal certainty and a fair balance.

It is stated that the conclusions made by the Constitutional Court of Ukraine characterizes the conceptual limitation of protective possibilities of participants of real estate civil circulation.

On the one hand the probability of taking away the power of the Ministry of Justice of Ukraine and its territorial bodies to nullify (to abolish) the state registrar decisions relates to cancelation of the legal mechanisms of administrative protection of rights to real estate including the property right in case of refusal of registration subject (particularly state registrar) to provide the state registration of such a right within juridical mechanism of the original right-acquisition. At the same time on the other hand the conclusions made by the Constitutional Court of Ukraine do not solve finally the problem of possibility or impossibility of protection of property right to real estate in case of refusal of registration subject (particularly state registrar) to provide the state registration of such a right within juridical mechanism of the original right-acquisition.

Key words: protection of the rights, real estate, refusal of rights registration, nullification of right registration decision.

References

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