Peculiarities of Usufruct in the Countries of Roman-German Law: Implementation of Best Practice in Ukrainian Law

• Author: Roman A. Maydanyk, Nataliia I. Maydanyk & Natalia R. Popova
• Position: Taras Shevchenko National University of Kyiv, Kyiv, UKRAINE School of Law/Vadym Hetman National Economic University of Kyiv, Kyiv, UKRAINE School of Law/National Academy of Legal Sciences of Ukraine, Kyiv, UKRAINE F. G. Burchak Scientific and Research Institute of Private Law and Entrepreneurship
• Pages: 61-80

Center for Open Access in Science  https://www.centerprode.com/ojls. html

Open Journal for Legal Studies, 2021, 4(2), 61-80.

ISSN (Online) 2620-0619  https://doi.org/10.32591/coas.ojls.0402.02061m

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© Authors. Terms and conditions of Creative Commons Attribution 4.0 International (CC BY 4.0) apply.

Correspondence: Roman A. Maydanyk, Taras Shevchenko National University of Kyiv, School of Law,

Kyiv, UKRAINE. E-mail: roman.maydanyk@gmail.com.

Peculiarities of Usufruct in the Countries of

Roman-German Law: Implementation of Best

Practice in Ukrainian Law

Roman A. Maydanyk

Taras Shevchenko National University of Kyiv, Kyiv, UKRAINE

School of Law

Nataliia I. Maydanyk

Vadym Hetman National Economic University of Kyiv, Kyiv, UKRAINE

School of Law

Natalia R. Popova

National Academy of Legal Sciences of Ukraine, Kyiv, UKRAINE

F. G. Burchak Scientific and Research Institute of Private Law and Entrepreneurship

Received: 7 June 2021  Accepted: 3 October 2021  Published Online: 10 N ovember 2021

Abstract

The article examines the features of usufruct in the European count ries of Romano -Germanic

law, determines the terms for the implementation of the best European practice of usufruct in

the law of Ukraine. The law of European countries of continental law recognizes the usufruct as

a real right of personal possession for use, which is considered an independent real right to

another's property or a kind of easement. The peculiarities of usufruct in some c ountries of

Romano-Germanic law, in particular in Germany , France, Georgia, Moldova and Russia, are

researched. The peculiarities of usufruct in some countries of Romano-Ge rmanic law, in

particular in Germany, France, Poland, the Netherland s, Switzerland, Georgia, Moldova an d

Russia, are researc hed. The issues of usufruct implementation in the law of Ukraine are

considered. The issues of usufruct implementation in the law of Ukraine are considered. The

authors came to the conclusion that it is necessary to introduce the institute of usufruct into th e

Ukrainian law by supplementing t he Civil Code of Ukraine with a new chapter “Uzufruct”, the

framework provisions of which are proposed in this paper.

Keywords: usufruct, quasi-usufruct, superficies, emphyteusis.

1. Introduction

In Ukraine, at the doctrinal and rule-making levels, the issue of introduction of the

institute of usufruct, which is unknown to national law, is discussed. The Europeanization and the

recodification of Ukrainian civil laws makes it necessary to study the best European practice in

order to determine the optimal conditions for the implementation of the legal construction of the

Usufruct.

R. A. Maydanyk, N. I. Maydanyk & N. R. Popova – Peculiarities if the Usufruct in the Cou ntries of ...

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62

The historical roots of usufruct originate in the property law of Roman law of the

classical period. Usufruct and similar legal constructions (in the Digests of Justinian, they are all

classified as personal easements) distinguishes among the special property rights of their strictly

personal nature1.

The legal construction of the usufruct was received from Roman law into medieval

continental law and is now considered a traditional type of limited property rights of many legal

systems of continental Europe (Germany, France, Hungary, Italy, Switzerland), along with

easement and building rights (emphyteusis).

The Law of Ukraine to real rights to another’s property recognizes the right of

possession, the right to use another’s property (easement), the right to use land for agricultural

purposes (emphyteusis), the right to build land (superficies) (Part 1 of Article 395 of the Civil Code

of Ukraine), and also the right of economic management and the right of operative management

(articles 136, 137 of the Economic Code of Ukraine). The usufruct is not provided by the law of

Ukraine, despite the existence of a number of legal constructions similar to the usufruct.

When the current version of the Civil Code of Ukraine was adopted, there was no

urgent need for the usufruct institute due to the lack of a developed land market. Modern civil

legislation of Ukraine in terms of expanding the scope of private property rights has become

necessary to develop and implement in the Civil Code of Ukraine generally accepted in world

practice, the institution of usufruct.

The modern domestic civil doctrine discusses the idea of implementation the usufruct

institute in the law of Ukraine, which is reflected in some scientific papers2 and in the provisions

of the Concept of updating the Civil Code of Ukraine (the Concept of recodification), developed in

accordance with the Resolution of the Cabinet of Ministers of Ukraine “On the establishment of a

working group on recodification (update) of civil legislation of Ukraine” dated of 17 July 201ф 

650.3

The above is due to the relevance of identifying best practices and conditions for the

implementation of usufruct in the law of Ukraine. This study highlights usufruct in a Private Law

of the Ancient Rome (4.1), the features of usufruct in the countries of Romano-Germanic law (4.2)

and the conditions of implementation of usufruct in the law of Ukraine, taking into account the

best European practice (4.3).

2. The aim

The aim of this paper is to study the peculiarities of usufruct in the Roman-Germanic

Law countries and defining the conditions of its implementation in the Civil Law of Ukraine taking

into account the best European practice.

1 Doshdev, D. V. Rimskoye chastnoe pravo: Uchebnik dlja vuzov. M.: INFRA -M; NORMA, 1996. P. 415.

2 See: Maydanyk, R. A. Usufruct: European and Ukrainian Law // Problemy vdoskonalenn ja

pryvatnopravovyh mekhanizmiv nabuttja, peredachi, zdijsnennja ta zahysty subjektyvnyk prav: materialy

nauk.-prakt. Konf., prusvjach. Pamjati prof. Ch. N. Azimov ta 20-richu z dnja stvorennja kaf. zyv. Prava N 2

(Kharkiv, 29 lystop. 2019 r.). – Kharkiv: Pravo, 2019. – 396 s. S. 20-32; Smitjuh A. V. Schodo uzufrukta

korporatyvnyh paiv (chastok, akzij) // PRAVO I SUSPILSTVO N 3 / 2020/ - S. 74-79. [Elektronnnyj resurs].

– Reshym dostupu: http://www.pravoisuspilstvo.org.ua/archive/2020/3_2020/13.pdf; Pavlenko O. O.,

Krasytska L. V. Usufrukt yak obmeshene rechove pravo // Visnyk studentskoho naukovoho tovarystva

DonNU imenu Vasylya Stusa. Tom 1 N 5 (2013). S. 82 -87. [Elektronnyj resurs]. Reshym dostupu:

https://jvestnik-sss.donnu.edu.ua/article/view/1213

3 Concept of Updating the Civil Code of Ukraine. Kyiv: Publishing House ‘ArtEk’, 2020. 1 2у p.