Justification of Acquisitive Prescription in the Civil Law System. Why is It Not an “Uncompensated Deprivation?

Silvana Dode

European Journal of Interdisciplinary Studies Articles, 2015, vol. 1

Abstract: Acquisitive prescription (a civil law institute) and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world. The debate rose after the announcement of the decision of the ECHR (European. Court of Human Rights) in the case JA Pye ( Oxford) Ltd vs Graham. The Fourth Chamber of the ECHR held that acquisitive prescription is actually an 'uncompensated deprivation. First, we will analyze the main theories on the basis of which this institute is justified. The question to be raised for the review of the article is whether prescription is morally and legally justified, especially in the case of prescription in bad faith. In the end, it will be reached the conclusion that there are justified reasons for the prescription and it is a very useful institution inthe civil circulation. But preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription. The law should aim to provide a greater protection to the legitimate owner.

Keywords: property rights; ways of gaining ownership; acquisitive prescription; property deprivation; european court of human rights (search for similar items in EconPapers)
Date: 2015
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Persistent link: https://EconPapers.repec.org/RePEc:eur:ejisjr:52

DOI: 10.26417/ejis.v1i3.p170-186

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