Possession and Defence of Possession in the Civil Code of Lithuania
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Abstract
The article approaches the legal concept of possession, its content and objectives, ambiguities of implementation of this civil right, as well as the questions of legal basis for protection of possession right and available judiciary remedies.
The inference is drawn that the term “possession” in Lithuanian law has two notions: it defines a possession fact itself and general civil right to possess something.
Possession right as civil right could be treated as an independent right in rem, or as a derivative – contractual right. Possession as independent right in rem is recognized only to a person, who has the property right in any object or is legally predisposed to own it. That person may be the legal owner as well as honest and lawful possessor of derelict, seeking to obtain the ownership of that thing by positive prescription. All other possessors (such as leaseholders, bailees and etc.) are enjoying possession only as derivative right.
According to the author, actual possession, as connection between an individual and a thing, should not be treated as legal right or legal relationship, but as an subject matter of legal interrelations, protected by law. Consequently, the individual right which is grounded in the fact of possession, asserts itself as unimpeded and indefeasible right of a person to retain a thing, as an element of universal right of personal autonomy, defined in 21 art. of Constitution.
Finally, an issue of judiciary protection of possession as right in rem and special civil claim of trespass (possessive action) as an alternative to traditional remedies of property right are discussed.
The inference is drawn that the term “possession” in Lithuanian law has two notions: it defines a possession fact itself and general civil right to possess something.
Possession right as civil right could be treated as an independent right in rem, or as a derivative – contractual right. Possession as independent right in rem is recognized only to a person, who has the property right in any object or is legally predisposed to own it. That person may be the legal owner as well as honest and lawful possessor of derelict, seeking to obtain the ownership of that thing by positive prescription. All other possessors (such as leaseholders, bailees and etc.) are enjoying possession only as derivative right.
According to the author, actual possession, as connection between an individual and a thing, should not be treated as legal right or legal relationship, but as an subject matter of legal interrelations, protected by law. Consequently, the individual right which is grounded in the fact of possession, asserts itself as unimpeded and indefeasible right of a person to retain a thing, as an element of universal right of personal autonomy, defined in 21 art. of Constitution.
Finally, an issue of judiciary protection of possession as right in rem and special civil claim of trespass (possessive action) as an alternative to traditional remedies of property right are discussed.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
