Constitutionalization of Remedies for the Protection of Property Rights: the Claim for Recognition in the Light of the Rule of Law Principle

Abstract

Abstract. The relevance of the study is due to the process of constitutionalization of private law in Ukraine, which is manifested in the strengthening of the influence of the constitutional principles of the rule of law, legal certainty, proportionality and effective judicial protection on civil law mechanisms, in particular on the claim for recognition of property rights. The conditions of updating procedural legislation, the formation of the practice of the Supreme Court, and Ukraine’s European integration obligations make it necessary to analyze the transformation of this claim from a traditional property-law remedy into a universal instrument for eliminating legal uncertainty regarding the belonging of a subjective right. The main results of the study indicate that recognition of a right is a universal mechanism for the protection of subjective rights provided for in Article 16 of the Civil Code of Ukraine, which ensures effective protection of the interests of rights holders, creates a legal basis for counteracting violations, and facilitates the lawful restoration of violated rights. In the context of the constitutionalization of private law, the principle of the rule of law requires that any remedy be effective, accessible, and capable of eliminating legal uncertainty. The claim for recognition of ownership (Article 392 of the Civil Code of Ukraine) acquires a universal character, combining proprietary and obligatory elements depending on the type of disputed legal relations. The absence of an active violation or a direct dispute cannot serve as grounds for refusing to satisfy the claim, since its purpose is to restore legal certainty and the stability of property relations. The case law of the European Court of Human Rights confirms that the State is obliged to ensure a real mechanism for judicial recognition of a right in cases of loss of documents or doubts regarding registration, as this forms part of its positive obligations to ensure effective protection of property rights (Article 1 of Protocol No. 1 to the Convention). An analysis of doctrine and judicial practice shows that the claim for recognition of ownership performs the functions of eliminating legal uncertainty, confirming the legitimate expectations of participants in civil circulation, and stabilizing property relations. It is applied in both absolute and relative legal relations, as well as for the protection of a lawful though unregistered owner, in particular in cases of refusal of registration due to the absence of documents. The practical value of the study lies in substantiating the universal nature of the claim for recognition of ownership as a constitutionalized instrument of protection, which makes it possible to unify judicial approaches to its application. Proposals regarding the recognition of ownership in cases of loss of documents or doubts concerning registration, even in the absence of an active violation, contribute to the harmonization of national legislation with the standards of the European Court of Human Rights and ensure real protection of property rights.

Keywords: constitutionalization of private law; rule of law; legal regulation; protection of property rights; civil legislation; commercial legislation; judicial practice.