Anton
D. Rudokvas: Disputed Questions of the
Theory on Acquisitive Prescription. Monograph. Moscow: Zakon 2011 (303
pages)*
(Антон Д.
Рудоквас: Спорные
вопросы
учения о
приобретательной
давности. Монография.
Москва: Издат.
Группа Закон
2011) [ Table of contents ]
Professor Emeritus
University of Lapland (Finland)
Contents: 1. Theme of the Study. – 2. Objective
of the Study. – 3. Method of the Study. – 4. Structure of the Study. – 5. Carrying out the Study. – 6. Conclusion.
1. – Theme of the Study
This study examines a classical and important
institution of civil (private) law: acquisitive prescription, developed on the
basis of the Roman usucapio. This
institution is still topical. As mentioned by the author (p. 10), some scholars
of the 19th and 20th centuries thought there would be no
need for legal rules concerning acquisitive prescription in the future thanks
to the growing perfection of the system of registration of landed
property. However, this is not the case
even today, as proved by the fact that the institution is still regulated in
the laws of Western Europe in spite of the highly developed land registration
systems of the region.
Many problems concerning acquisitive prescription are
particularly alive in Russia, where severe defects affect the relevant legal
rules. In particular, substantive provisions have not always been sufficiently
harmonized with procedural ones. At the same time, there is a clear need for
research in this field. Even though a few monographs and some articles have
been published on acquisitive prescription, this theme has not been exhausted –
far from it (p. 12).
2.
– Objective of the Study
The above-mentioned defects of Russian legislation
form the author’s starting point and determine his research goals. Ultimately
the study has an objective linked with legal policy. The author aims at
improving legal regulation of acquisitive prescription in Russia.
The objective of legal policy explains why the end of
the work is clearly concrete: the last part consists of draft articles to
regulate the institution of acquisitive prescription in the Russian Civil Code.
The author proposes that three comprehensive articles be added to the Civil
Code. The first article regulates the institution of acquisitive prescription
as for movable property and the second as for ownerless immovable property. In
the third article, the author proposes specific rules concerning cases where an
immovable has been erroneously registered in the name of its possessor.
3.
– Method of the Study
The method of the author is – as he states
(p. 11) – comparative-historical. This choice of method is supported by the
fact that the institution of acquisitive prescription is a legal transplant in Russian
law: it was developed in Western Europe under the influence of Roman law and
was later transferred to Russia (p. 7).
On this basis the author takes the
standpoint that it is possible and important to examine the European
private-law tradition, and the experiences gathered within this tradition, to
facilitate correcting the defects of the Russian Civil Code. He refers to
Tsarist-era author I. E. Engelman who wrote in 1900 (the translation from
Russian here): “… we have noted that
this concept [= acquisitive prescription; clarification by the reviewer]
appeared in modern legal systems by the effect of research on Roman law.
Therefore, in order to be able to properly evaluate this concept it is
necessary to investigate its importance in Roman law, in this archetype and
foundation of all civilized and developing legislation. […] after having
determined the importance of this concept in Roman law we have an appropriate
yardstick to theoretically evaluate the importance which acquisitive
prescription has in Russian law. [… The defects of Russian law] can be only
rectified by adopting the fundamentals of Roman law, i.e. of the science of
law” (p. 11).
The author states that this assertion by
Engelman has not lost its significance today, and this is supported by recent
legal research in foreign countries. In Germany, despite the highly developed
legislation of the country, many legal scholars study the theory of acquisitive
prescription, partly on the basis of Roman law. Some assertions of this theory
have an immediate Roman-law basis (p. 12). In the case of Russia, use of a
comparative-historical method to clarify the position and role of acquisitive
prescription is also supported by the Roman-law background of the existing
legal rules in this field. Furthermore, this method can be justified by the
fact that certain concepts, such as possession of property as one’s own,
openness of possession, or possession in good faith, cannot be decoded by
examining Russian legislation only. They have not been explicitly defined in
Russian legislation (p. 11—12). Finally, the author clarifies that it is not
adequate to understand the term “Roman law” in a narrow sense. In addition to
classical Roman law in its various phases, one must also take into account the
European private-law tradition in its entirety due to the Roman-law basis of
that tradition (p. 12).
Consequently, it can be stated, from the
methodological point of view, that Rudokvas uses classical Roman law, jus commune, and modern Roman-law based
legal systems to analyze and correct the defects of Russian law on acquisitive
prescription. In this way he is linked to the great tradition of the Historical
School which underlines the importance of Roman law in the study of modern
legal systems. As is well-known, this School, originally developed in Germany,
had an important influence on Russian legal research at the end of Imperial
times. This was particularly the case in the Baltic provinces of the Russian
Empire (today the Baltic States) where the mother-tongue of the scholars could
be German. The scholar cited by Rudokvas, Ivan Egorovitsh Engelman (the German
form of the name: Johannes August Engelmann), was a long-time chair holder of
the University of Tartu (Dorpat) at the end of the 19th century.
According to Russian bibliographical sources, Engelman was an important
representative of the Historical School. He was famous for his deep-going
historical-dogmatic analyses of Russian civil (private) law, and he published
his works partly in Russian, partly in German.
As is also well-known, certain later schools contested
the Roman law-based starting points and accentuations of the Historical School.
However, all methodological solutions are relative in legal research and can be
both disputed and defended. To my mind, there is no reason to reject Rudokvas’
idea: it is still possible and fruitful to study the Continental Roman-law
tradition and to use it to develop arguments on that basis in order to improve
modern law. Rudokvas’ book is a significant example which shows the viability
and productiveness of the theses of the Historical School and of research of
Roman law in modern Russia. This important element of the book – the angle of
Roman law and the Continental legal tradition – could perhaps have been
expressed more clearly on the title page, e.g. in the shape of a clarifying
subtitle.
4.
– Structure of the Study
At the beginning of the book the
Introduction explains the goals and methods of the study. After this, the book includes
a chapter which describes the institution of acquisitive prescription and its
use in Imperial Russia. In the following chapters the author examines inter alia: the range of application of
the institution; rules on acquisitive possession from the point of view of
continuity, openness and good faith; remedies; nature of the institution from
the law-of-property angle (relativity and absolute nature); effects of legal
succession. The book ends with a section which also includes the draft articles
(already mentioned above).
The structure of the study is logical, and the
presentation of arguments and conclusions follows the established scientific
custom. However, some complementary elements could have been added. For
example, the book only includes the scientific study itself. It would have been
interesting for readers to have a short description of the birth of the study,
e.g. in the shape of a preface. Furthermore, it would have been useful, from
the point of view of fellow scholars, if the book had contained a bibliography,
an index and a table of foreign terms (the study includes an important number
of Latin and German expressions). However, this “stripped-down” concept of the
book has supposedly been dictated by the traditions of the scientific community
and the publisher which authors have to take as given.
5.
– Carrying out the Study
The author displays wide erudition,
notably concerning Roman law but also concerning later legal tradition in Europe.
This is not astonishing if one knows that Rudokvas has been a member of the
editorial council of the Russian translation of the Digest and has personally
translated important parts of it[1]. He has also
published articles on topics close to the theme of the book now reviewed; e.g.
a recent (2011) article of Rudokvas covered the impact of the Austrian Civil
Code on the concept of ownership in Russia[2]. The erudition of
the author is manifested by the fact that numerous classical treatises on Roman
law written by German and Italian scholars are discussed in the text and
referred to in the notes of the book.
Thanks to his erudition the author is able
to produce thorough-going theoretical and dogmatic analyses. He often enters
into a dialogue with classical legal scholars as well as present-day
specialists – foreign and Russian – who have expressed opinions on the matters
discussed, and crystallizes essential features of complicated juridical phenomena. Chapter V which examines acquisitive
prescription as a relative real right (right in rem) constitutes a good example.
In the first section of this chapter,
entitled “Acquisitive prescription in the European civil-law tradition” (p.
196—206), Rudokvas shows a profound knowledge of the concept of possession and
the history of acquisitive prescription connected with it, during Antiquity,
the Middle Ages and the modern era. He demonstrates how “possession” has,
throughout legal history, been more than just a purely physical
relationship. In addition to the great
names of Roman law and medieval jus
commune, he also cites leading legal scholars of the 19th
century, such as von Savigny and Puchta. At the same time, German-language
legal writing of the 20th century is widely present in the book. The
author shows how the representatives of this writing (Enneccerus, Wieling)
carry on the tradition according to which “possession” should be understood as
a juridical phenomenon. The standpoints presented in the study are linked, as
necessary, with relevant legal provisions, notably in the ABGB.
In Section 2 of Chapter 5, “Acquisitive
Prescription in Russian Civil-law Dogmatics”, Rudokvas discusses the opinions
of several Russian scholars who have written about possession and acquisitive
prescription. He gives detailed arguments in favour of the opinion according to
which possession is a right in rem.
In addition to Russian legal scholars today, Rudokvas also refers to the fact that
in the legal writing of Kazakhstan acquisitive possession is understood as a
real right. Chapter 2 closes with a section entitled “Practical Consequences of
the Solution by which Acquisitive Prescription is Acknowledged as a Right in rem”. In this section, the author
illustrates the damaging effects of the solution by which possession is not
recognized as a subjective right.
These main parts of the book are preceded
by a chapter which examines the Imperial Russian era, thus giving background
knowledge to the later presentation of present-day law (p. 14—25). The
institution of acquisitive prescription was adopted from French law to Russia
but in an incomplete form: the requirements of a proper (just) title (justus titulus) and of good faith (bona fides) were omitted. This
incomplete reception of French law meant that the institution of acquisitive
prescription could often be used in Imperial Russia to usurp a third person’s
landed property. These usurpations were facilitated by the fact that the supreme
jurisdiction interpreted legal rules in a spirit favouring commerce and trade.
This phenomenon took place both in Russia
proper (as for State lands and lands of manor houses, p. 32-34) and in certain
peripheral regions of the Empire. In South-Western Siberia, acquisitive
prescription was an instrument for taking possession of the lands of Tatar
nomads by immigrant peasants in the area: according to the dominant conception
of land ownership and possession in the Empire, formed on the basis of the
thinking of land-cultivating peasants, soil which was only used for herding
purposes was terra nullius and could
consequently be transferred to pioneer peasants by means of acquisitive
prescription (p. 34—37). In the Caucasus in particular, unscrupulous methods
were used, characterized by the meaningful expression “an orgy of land
usurpation” (p. 38). In this region newly annexed to the Empire, where Russian
courts had been introduced, local magnates (and others) could handily usurp
land by means of the institution of acquisitive prescription. The usurpers
used, inter alia, false witnesses to
testify in court that they had already long enjoyed possession of the land in
question. In this connection, it was very easy to find false witnesses in the
Caucasus due to religious differences (but for other reasons too). One could
sometimes buy a witness for a price of 20 kopeks (!) because it was considered
that perjury to an infidel (i.e. a Russian judge) was not a sin (p. 38-41).
The last two decades also offer
interesting examples of the practical use of acquisitive prescription in
Russia. This applies, not only to the
privatization period in the 1990s[3], but also to some very recent phenomena discussed by
Rudokvas in the section on “The Range of Use of Acquisitive Prescription”. The
author describes, inter alia, how the
newly created gambling zone of Altai quickly raised the price of land in the
area. Before the price rise, a number of pieces of land had been sold there
informally at a low price, often due to legal ignorance. This prompted some
sellers to bring suits against the de
facto (new) owners on the basis that the seller was still the real owner
due to omission of the form requirements of land sales. However, as observed by
legal scholars from Altai University and the author, these lawsuits could not
succeed due to bad faith on the part of the sellers, so that the de facto owners should be acknowledged
as acquisitive possessors (p.43—44). On the other hand, in the immediate
surroundings of Moscow a large amount of land has recently been purchased by
companies. In order to gain time and money, simulated documents, such as
proxy-based arrangements, have been largely used by company lawyers instead of
a proper real estate purchase deed. Because the value of land has lately been
considerably on the rise in the area, lack of a valid legal ownership title has
in many cases led to controversy. In these cases, giving the status of an
acquisitive possessor to the purchaser would mean protecting the bad faith of
company lawyers and stimulate deliberate breaking of the law (p. 45—46)
The short descriptions above show that
Rudokvas’ book includes fascinating information on the real use and effects of
the institution of acquisitive prescription both during Imperial times and far
more recently as well. These sections of the book are also rewarding to readers
from a more general point of view. The use of acquisitive prescription is an
illustrative example of unexpected, even unwanted, effects of legal
transplants, notably in cases where an institution has been received from
another country in an incomplete form or detached from its context (legal
surrounding) in the original system.
As for use of the institution of acquisitive
prescription during the Soviet period, the author only mentions briefly that
the institution was lacking in Soviet law but its possible adoption was
discussed in connection with the problem of legalization of ownerless property
(p. 8). It would have been interesting to read somewhat more about this
discussion: what was the context (turbulence caused by World War II and the
terror period?) and what kind of property was meant (taking into account the
general socialization of landed property)? Similarly, as seen above, the Russia
of the 21st century also offers exciting examples of the practical use of
acquisitive prescription, and the reader would have certainly been keen to know
even more about these. However, giving empirical information on a
large scale falls outside the scope of this study, so it is entirely natural that
the author should keep within reasonable limits in this respect.
6.
– Conclusion
The title of the book includes the
expression “disputed questions”. Indeed, the author focuses on questions which have
caused controversy among Russian scholars. It is therefore understandable that
some scholars may disagree about certain standpoints presented by the author
and have been quick to present counter-arguments in favour of their own
standpoints[4]. However, this is a
clear sign of the high quality of this study: a fertile study is always apt to
arouse scholarly discussion and change of opinions which make science progress.
In consequence, Rudokvas’ book is a
valuable contribution to an important theme. Furthermore, it has been written
in a logical and consistent manner. The reviewer is a foreigner and cannot
comment on the language of the study but it is worth saying that the text is
easy to read even for those who are not native Russian-speakers. Thanks to the
clarity of the author’s thinking, this also applies to passages where the
technical complexity of the subject discussed forces the author to use
relatively long sentences.
At the same time, it should be stated that, in
addition to its de lege ferenda (legal
policy) value, the study is equally useful for researchers of Roman law and of
the theory of civil (private) law, notably for those of the law of property.
From this angle, a foreign reader may deplore that the book does not include a
summary in a Western lingua franca.
However, as a counterbalance, one should mention that during the past few years
Anton Rudokvas has actively participated in scientific discussion of his field
in other forums in several foreign languages (Italian, German, and English). There
is good reason to suppose that he will continue this participation and publish
important contributions in the West in the future as well. The community of
Roman-law and civil-law scholars very much looks forward reading these
contributions in the years to come.