Shcherbakov A.A. Issues of Vindicatory Action and Personal Legal Actions Competition in German Civil Law

Abstract: The article is devoted to the correlation between the vindicatory and unjust enrichment actions in German civil law. Òhe legal nature of condictio possessionis and vindication is briefly covered. Doctrines of a subsidiary vindication and legal actions competition are compared on the basis of German Civil Code provisions, judicial practice and doctrine. The conclusion can be drawn that both doctrines apply simultaneously (on a subsidiary basis) or exclusively. The author analyzes the correlation between owner's and possessor’s interests, including a third party interests, in the course of chose’s vindication relating to the reimbursement of its maintenance expenses and related income. The conclusion about the priority of vindication because of its special nature, while making the reservation, and the alternative use of tort rules and regulations of personal legal action and opportunities of the plaintiff based on the autonomy of the will, to choose the most appropriate requirement. The study is based on comparative legal method of investigation in conjunction with the systematic analysis of the provisions of the German Civil Code and the Code of Civil Procedure of Germany, as well as the judicial practise of the higher courts of Germany. The novelty and urgency of research is based on the consideration of the material aspects of bringing proprietary, possessory and condictio claims. Issues of conflicts of these rules and options to overcome them are raised. Comparative legal research of property law in Russia and Germany is of particular importance at the moment, the moment of the fundamental reform of the civil law.

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