BUSINESS COMPETITION IN METHODS OF PROTECTING THE RIGHTS OF OWNERSHIP: PROBLEM'S SETTING AND WAYS OF ITS SOLUTION

Abstract

The author of the article has defined the problematic issues of business competition in methods of protecting the rights of ownership and has suggested the ways of their solution. Business competition of the protection methods takes place in case, if the demands are related to the protection of the violated rights of an owner arising from material or binding legal relations. It has been proved that if we are talking about the violation of the right of ownership as an absolute right, when the owner was not in any binding legal relations with the violator, then the protection of such a right must be carried out by applying material and legal methods of protecting the right of ownership, whereby the plaintiff must choose an appropriate and effective method of protecting the violated right of ownership among them, which can actually lead to the restoration of the violated right. In this case, the competition of the methods of protecting the right of ownership can be defined as “the contract eliminates vindication” or “the contract eliminates negatory action”. Business competition of the protection methods takes place, when there are simultaneous claims to reclaim the property from unlawful possession and to remove obstacles for the owner to exercise the right of administration and disposal of own property. It has been established that vindicatory and negatory actions are mutually exclusive. Business competition of the methods to protect the right of ownership takes place in case, when demands to protect the right of ownership arise from the violation of the rights in binding legal relations, whereby the demands for the protection of the rights arising from contractual legal relations and tortious legal relations compete with each other. Establishing the existence of contractual relations between the owner and the violator of the right of ownership and establishing the fact of violation of the contractual obligation itself should lead that a demand for the protection of the right of ownership should be raised from the violation of contractual legal relations, but not tortious legal relations as a type of binding legal relations. In this case, business competition of the methods to protect the right of ownership can be defined as “the contract eliminates the tort”.