PROPRIETARY MODELS FOR REPLACING THE RIGHT OF OPERATIONAL MANAGEMENT AND ECONOMIC JURISDICTION THROUGH THE PRISM OF THE DCFR

Abstract

The article is devoted to a comprehensive analysis of the property law models incorporated in the Draft Common Frame of Reference (DCFR) as a potential civil law alternative to the Soviet remnants in the Ukrainian legal system – the right of operational management and the right of economic control. The relevance of the study is driven by the reform of the property basis of Ukraine’s public economic sector, along with the adoption of the Law of Ukraine No. 4196-IX «On the specifics of regulating the business activities of certain types of legal entities and their associations during the transition period» and the repeal of the Commercial Code of Ukraine. The author emphasizes that the right of operational management and the right of economic control are artificial post-Soviet constructs that lack analogs in the legal systems of continental European states, blur the boundaries of corporate liability, and contradict the principles of an efficient market economy. The study evaluates four groups of property rights defined by Book VIII of the DCFR: security rights, use rights, acquisition rights, and trust-related rights. Through the lens of criteria such as the stability of the property title, the scope of possession and usage powers, publicity, and compliance with the numerus clausus principle, the capacity of each group to replace the abolished Soviet institutions is analyzed. It is demonstrated that security rights, despite their importance for lending, do not provide the entity with autonomy in asset management. Acquisition rights and trust-related rights are considered to be of limited suitability or carry significant risks due to potential threats to the transparency of public assets and their mismatch with the objectives of day-to-day asset management. The core conclusion of the article is that “use rights,” which in the Ukrainian doctrine are realized through the institute of usufruct, possess the highest systemic capacity to replace economic control and operational management. At the same time, the author stresses the necessity of introducing strict legislative safeguards during the implementation of these models to prevent the recurrence of discretionary pathologies inherent to the public owner.