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CNAA / Theses / 2015 / June /

Theoretical and practical problems of the personal servitudes


Author: Chisiliţa Violeta
Degree:doctor of law
Speciality: 12.00.03 - Private Law (with specification: Civil, Family, Civil Procedure Law, Notary, Business, Informational, Private International, Labour Law, Social Protection Law)
Year:2015
Scientific adviser: Victor (decedat) Volcinschi
doctor, professor, Moldova State University
Institution: Moldova State University

Status

The thesis was presented on the 25 June, 2015
Approved by NCAA on the 7 October, 2015

Abstract

Adobe PDF document – 0.43 Mb / in romanian

Thesis

CZU 347.2 (043.3)

Adobe PDF document 2.08 Mb / in romanian
210 pages

Keywords

right to thing, personal servitude, property right, usufruct, use, habitation

Summary

Thesis structure: Introduction, 4 chapters, general conclusions of the research and recommendations, bibliography of 211 titles, 195 pages of basic text. The results are published in 8 scientific works.

Domain of research: Specialty: 553-01. - Private law, civil law. Real rights over the goods of another person.

Thesis aim: Dealing with the legal dimension of the phenomenon of personal servitudes, by outlining the concept of subjective rights of usufruct, use and habitation, the revealing of their legal nature, the identification of the most efficient means of their protection, the determination of the compliance of the existent legal frame to the actual requirements of the society, the formulation of the possible solutions for removal of the existing gaps. Objective of the thesis: to study the problem of appearance, evolution and development of the personal servitudes; the determination of the scientific interest towards the phenomenon of the personal servitude at different stages of development by studying the doctrine approaches; the revealing of the essence of the subjective rights of the usufruct, use and habitation by formulating their notions, of the defining elements, characters and legal nature, the demonstration of their usefulness and functionality, the research of the legal framework regarding the personal servitudes, in plan compared with the legislation of other states (France, Germany, Romania, Italy, Spain and Russian Federation), the identification of the specific particularities of these regulations; the establishment of the permits and factors that shall enhance the implementation as fast and as efficient as possible of the respective regulations; the formulation of own conclusions and considerations in the context of the existent autochthonous researches, with their scientific argumentation and the forwarding of the proposals of lex-ferenda in order to improve the legislation in force.

Scientific novelty and originality. The examination of the phenomenon of the personal servitude at the actual moment has a great importance, due to the fact, that the research of this subject allows to substitute the existent information, with new veridical knowledge. The cognitive interest is outlined over the practical aspect and in this sense was carried out not only the theoretical examination of the problem targeted. It was argued the reintroduction in the juridical lexis of the notion “personal servitude”.

The important scientific problem solved. It was scientifically proven the necessity to reintroduce the notion of the „personal servitude” and the requirement of keeping the relevant institutions in the actual regulating tools. It was proven the opportunity of revising and adjusting the legal framework that relates to the personal servitudes set up by the law and acquisitive prescription. Were brought into evidence the advantages of the personal servitudes towards other juridical phenomenon with the similar characteristics, there were formulated the concrete proposals in order to fortify the institution of personal servitudes protection.

Theoretical significance. The importance of the study carried out is justified due to the fact that it was identified and proposed the mechanism of implementation of the rights of usufruct, use and habitation in practice. The presentation and the knowledge of these shall be done by identification of own characteristics of these rights, the comparison with other institutions that represent common characters and the revealing of the advantages that are attested by the right of usufruct, use and habitation in resolution of some patrimonial concrete problems.

The practical value of the work. The practical aspect of the thesis is represented by the possibility of using the scientific conclusions and recommendations, formulated in the content of the thesis, in the didactical process and in the improving the legal framework.

Implementation of scientific results. The results of the scientific research can be used for supplementing the existent didactic material in the higher education institutions with juridical profile, in particular in the courses of „Civil law. Real rights”, and „Dismemberment of property rights”, thought at the State University of Moldova, at the second year of study (1 sickle of license) and of „Civil law” for the trainees of the National Institute of Justice. The conclusion of the work has been presented to the Working Group for adjusting the Civil Code, set up within the framework of the Ministry of Justice in order to improve the actual legal system. This research could be used as background in applying the legislation in force by those who practice the profession of judge, lawyer, notary and mediator.