Law. Civil law.

Doctor of Law D. Lorenc, Law student A. Semenova

South Ural State University, Russia

Ipoteka: the experience of Poland, USA

and reform in Russia

Roman Law admitted pledge of movable and immovable property both with transferring possession (in the form of pignus) and without transfer (in a form of ipoteka). In modern law pledge of movable property is legally binding when it is passed into the possession of the creditor (“handy pledge”, Faustpfand). Pledge of immovable property is called ipoteka. There are some exceptions of this rule (for instance, in Belgium, Italy, France, USA and etc) "ipoteka of movable property” may occur on livestock, machines, and agricultural products [5].

In the light of the reform of the Civil Code in Russia, we propose to analyze new aspects of ipoteka in Russia and compare them with the features of pledge in foreign countries such as USA and Poland.

There has always existed a discussion regarding the nature of the pledge in the Russian science of civil law. Some scientists refer the pledge to property law; others consider it to be the law of obligations [2; 4; 5; 6].

In The Draft of the Civil Code [1] the problem is solved just partly, due to the fact that ipoteka is considered to be a real right (Chapter 20.4). In Poland, the ipoteka - is also a right in rem to real estate, providing a monetary claim with a specific sum (Article 68 of the land books and the mortgage). In the U.S., ipoteka is a way to ensure any obligations with any property without its actual transfer to the creditor.

The subject of the American ipoteka can be not only immovable property (land, buildings, minerals, forests), but movable property as well (including securities, property rights), which are in the possession of the debtor. The subjects of polish ipoteka (Article 65 of the Act) are: real estate, the right of the owner of premises in a housing cooperative, the right of the of non-residential premises, the right to claim. In Poland perpetual usage can also be transferred into ipoteka. The usage itself arises for people and legal bodies on the ground of the State (Article 232 CC Poland). This perpetual usage is rather similar to roman superficio and building leasehold (a right of possession and disposal of a land with an aim to erect a building on it with its further usage). The last will soon appear in Russia. In The Draft of the Civil Code in Russia the subjects of the ipoteka will be following: immovable property, a share in a right of ownership for a real state, emphyteusis (Chapter 20) and building leasehold (Chapter 20.1). In the contrast to the United States it is forbidden to transfer into ipoteka future things and future tights [3].

In Russia the German model for saving ipoteka for a bona fide pledgee is introduced, subject to there was no forgery during government registration A pledgee in Russian ipoteka gets a right for vindication lawsuit and negatory lawsuit. Anglo-American law does not know classical Roman claims; protection of ownership is part of the common law of tort (trespass).

The Draft of Civil Code provides two different types of ipoteka and each type has its own characteristics. They are an accessory ipoteka and an independent ipoteka:

1) With an accessory ipoteka it is vital to define in contract the essence, size and terms of performance of the main obligation. Whereas, with an independent ipoteka the contract should include the information about the terms of performance and the limit sum the pledgee can get. Independent Russian ipoteka reminds polish collateral ipoteka (hipoteka kaucyjna), which ensures the right to demand till the sum defined in the contract. An independent ipoteka in Russia can be established by encumbrance without defining the pledger (as in Germany).

2) Basic rules about subject are applied with an accessory mortgage (every subject). When it goes for an independent mortgage, credit institution acts as a pledgee, commercial organization plays a role of pledger.

3) The terms of performance of accessory ipoteka are defined in the contract. The maximum term of performance of independent ipoteka is 30 years

4) Ipoteka deed plays a role of named documentary securities in an accessory ipoteka. Ipoteka deed in an independent mortgage acts as an order security which rights can be transferred by endorsement.

In Russia and Poland right of ownership is retained by the debtor. In some U.S. states according to the common law creditor (pledgee) acquires title of ownership for the property of ipoteka. In the American ipoteka you can observe features of Roman fiducia, ancient french vente á reméré, ancient german Kauf auf Wiederkauf [5]. With such form there is no legal meaning of the pledge. Debtor's interests in the U.S. are not protected from abuse by the pledgee.

Thus, in Russia ipoteka will soon become a real right, you will see an independent ipoteka. Hope that the reform legislation will benefit the development of the civil law.

Literature:

1. Proekt Federalnogo zakona № 47538-6 “O vnesenii izmeneniy v chasti 1, 2, 3, 4 GK RF” (dalee Proekt izmeneniy GK RF) // http://consultant.ru/

2. Ioffe O.S. Izbrannye trudy po grazdanskomu pravu // http://civil.consultant.ru/elib/ [In russian].

3. Osnovnye instituty grazhdanskogo prava zarubezhnyh stran / Otv. Red. V.V. Zalesskiy. M., 2009. p. 552 – 589. [In russian].

4. Pobedonoscev K.P. Kurs grazhdanskogo prava. Pervay chast: Votchinnye prava. М.: «Statut», 2002. p. 632, 637. [In russian].

5. Pokrovskiy I.A. Osnovnye problemy grazhdanskogo prava. M., 1998 // http://civil.consultant.ru/elib/ [In russian].

6. Shershenevich G.F. Uchebnik russkogo prava. Spb, 1907. p. 415. [In russian].