MINISTRY OF EDUCATION AND SCIENCE OF UKRAINE

NATIONAL AVIATION UNIVERSITY

FACULTY OF INTERNATIONAL RELATIONS

Department of international law and comparative law

COURSEWORK

in the discipline «Comparative Civil Law»

Topic: “The right of state ownership in the civil law of foreign countries”

Implemented by: 2nd year student of group 204

specialty 293 “International Law”

Malykhina Iryna Kostyantynivna

Supervisor: Candidate of Law, Docent

Kibets-Pashutina Daria Viktorivna

Kyiv  2022
 CONTENT:

INTRODUCTION.....................................................................................................3
CHAPTER 1. The essence of state ownership..........................................................5
1.1 History of state ownership...................................................................................5
1.2 Concept and forms of ownership right..............................................................10
1.3 Subjects of the right of state ownership............................................................14
1.4 Objects of the right of state ownership..............................................................16
CHAPTER 2. Peculiarities of the regulation of the right of state ownership on the
example of certain states.........................................................................................19
2.1 The right of state ownership in the USA...........................................................19
2.2 The right of the state to possess property in the United Kingdom....................20
2.3 The state's ability to own property in France....................................................22
2.4 The government's right to own property in Italy...............................................24
CONCLUSIONS.....................................................................................................27
LIST OF REFERENCES........................................................................................29

2
 INTRODUCTION

It is generally recognised that the issue of property is perhaps one of the

most important issues determining the generation, existence and development
paths of human society. Issues of property rights have now come to the forefront
and have gained particular relevance.

In recent years, the area of public policy such as the management of state-
owned property has undergone serious changes. Today, the issue of public property
has a multidimensional dimension and requires special attention because public
property is the foundation on which the economy of any country stands. To be able
to perform the necessary tasks, every country needs economic resources. One of
them is the property that is publicly owned. How well it is managed determines
how a country performs its tasks.

The relevance of this work stems from the fact that state ownership is one
of the most important elements of any economic system and a factor in the
sustainable development of the country and the guarantor of national wealth.

Many foreign legal scholars and economists, including D. Galbraith, W.

Martin, R. McGrave, P. Samuelson, B. Sorde, J. Stiglitz, and others have studied
the issues of state property management. Among the domestic ones there are A.
Anisimov, K. Annenkov, S. Aptekar, A. Bardsky, V. Bessonov, E. Vaskovsky, A.
Galchinsky, B. Gongalo, G. Dorofeeva, S. Mocherny, K. Nevolin, B. Paskhaver,
O. Poshtenny, A. Pokritan, A. Plotnikov, I. Sindeeva, T. Chesnokova, M.
Chechetov and others. But despite the large number of studies and publications, the
issue of effective management remains in the focus of scientists.

The purpose of this paper is to study, examine and analyse the structure of
ownership: its legal side; study the various forms of ownership, mainly state
ownership; examine the objects of state ownership and legality of applied

3
principles and methods of management; analyse ownership development in foreign
countries and the interaction of state and private ownership.

In order to achieve this objective, the following tasks need to be addressed

in the course work:

 to investigate the historical development and formation of the

institution of property rights in foreign countries;
 to reveal the essence and content of state property rights;
 to reveal the specificities and composition of the subjects and objects
of state property rights;
 to analyse the legal aspects of the exercise of state ownership of
foreign legal norms.

The object of the study in this term paper is the legal regulation of state
property in foreign countries.

The subject of the study is the government property in foreign states.

The methods of analysis, comparison and generalisation were used to

achieve the aims of the coursework. This made it possible to examine the separate
parts of the elements of the work, to distribute the information correctly and to
establish the general properties of the subject and its attributes.

When writing the coursework, the statistical data of developed countries,

regulatory documents, periodical publications, as well as textbooks and manuals
were used as sources.

Structure and size of the coursework. The coursework consists of an

introduction, 2 chapters (8 units), conclusions, list of references (31 sources). The
total volume of the work is 32 pages, the main text is set out on 27 pages.

4
 CHAPTER 1. The essence of state ownership

1.1 History of state ownership

Any modern civil law institution has a rich history, which as a rule dates
back to Roman civil (private) law. Although its development resulted in the
formation of private property law, on which the entire system of Roman law was
based, analysis of its provisions allows us to identify the specifics of the
development of public property law of that period as well. [1]

The emergence of states facilitated the emergence of state ownership. This

gave rise to a variety of forms of ownership in the form of personal, family, clan
and state ownership. The emergence of states fostered the emergence of state
ownership, giving rise to a variety of forms of ownership in the form of personal,
family, clan and state ownership. In the epoch of feudalism, the subsistence
economy was firmly tied to the feudal owner with its ownership of land, its tools
and cattle, and the land became the main object of state ownership. In new and
modern times, in countries with industrially developed economies, the tendency
towards increased state ownership, including monetary, or universal forms of
wealth (budget, international reserves, etc.), was established.

The very notion of "property rights" did not emerge immediately, but has
slowly emerged in history.

Property law was developed by ancient Roman jurists. Roman private law
acquired great historical importance, far beyond the slave-owning formations, as
its creators developed private property law for the first time. [2]

5
 Initially in Ancient Rome, property relations were formed primarily in
relation to slaves, who were considered objects of law. In the historical aspect of
the formation and development of slave-owning society, the ownership of the
means of production by the slave-owner, as well as the ownership of the slave,
took a variety of forms.

In the early stages of the formation of Roman law, there was a system of
common ownership of property, which included patrimonial property (res
geiitilieia) as well as public land belonging to the whole state (ager publicos).

Further development of the institute of ownership was connected with the

emergence of various types of ownership: quiritum ownership (could only belong
to full Roman citizens who had the right to participate in commerce - ius
commercii), peregrine ownership - ex jure genium (ownership of non-Roman
citizens - latins, peregrines), provincial ownership and others, which by the
adoption of the Justinian Codes formed a single ownership right (dominium).

In addition to these types of property, we can talk about the formation of two
separate types of property: public property, which was exclusively an institution of
public law (ius publicum), and private property, which, in turn, was an institution
of civil law (ius civile). Private property occupied a dominant position in relation
to public property. [3]

Regarding the subject of public property law, the Roman State, the State is a
public-law entity, acting in public relations, and a private person, the Treasury,
acting in civil relations. Initially, in Roman law there was no clear distinction
between the State as a political union and the State as an independent subject of
property rights and duties.

Later, the state came to be regarded as an independent subject of property

rights, became separate from the state in the sense of a political union, and became
subject to the general rules of civil law and procedure, with only some privileges
reserved for it.

6
 The objects of property rights in Roman law also had their own
characteristic features. For example, the objects excluded from commerce (res
extra commercium) were not the exclusive property of public legal entities, as is
the case nowadays, but included several categories of things:

 things withdrawn from circulation on religious grounds - res divini

iuris, which were not in anyone's possession or ownership. This included temples;
churches; burial places regarded as belonging to the souls of the dead; consecrated
city walls and gates, etc;
 things withdrawn from circulation for natural reasons - res omnium
communes, which were not subject to the exclusive domination of individuals.
These included the air, the sea, the seashore, etc; [4]
 things withdrawn on political grounds - res publicae, by which we
mean things owned by the Roman state and later by the community. These things
were divided into things which were used by the state and community as private
persons and therefore were not excluded from circulation, and things which were
given to all people for free use and therefore excluded from circulation - roads,
bridges, squares, rivers (permanently flowing), harbours and others. [5]

Furthermore, since the Roman state pursued an imperial policy with

numerous wars, public property was constantly replenished by including lands
taken from enemies (ager manucaptus), which were subsequently included in civil
turnover. Cultivated lands were sold, distributed gratuitously to landless plebeians
or leased to censors for a permanent rent; uncultivated lands were given to
individual citizens for their occupation with the condition that a certain share of the
income was given to the state. [6]

To sum up, since by the later period of its development the Roman state had
become a subject of civil law and public property had obtained civil protection and
civil transactions began to apply to it, the right of public property had legally
ceased to exist as a type of property right. Private property right became, in fact, a
legally unified property right, irrespective of who was its subject.
7
 Later on, Roman law had a significant influence on the law of many
European states, which in the Middle Ages began to adopt it into their legal
system.

State property in the medieval societies of the East was feudal in nature. The
form of its realisation was the rent-tax, which was a special kind of feudal rent in
the conditions of the predominance of public-law functions of the state and its
stable control over the private rights of feudal lords.

The entire course of historical development in the Eastern countries was

greatly influenced by the widespread use of state ownership of land, which was
combined with another form of ownership - communal ownership - and with
private land ownership by peasant communes. State ownership, in its narrow sense,
included only the land tenure of the monarch and the state treasury. In a broader
sense, however, it also included land grants from the state fund to those involved in
power.

But in the medieval societies of the East, the state protected in every
possible way state ownership of land with its inherent traditional system of
exploitation of such peasants, inhibited the development of private property and
prevented the creation here of the West-European system of bargain farming. [7]

But gradually in the Eastern countries as well, a considerable part of the

state land fund was distributed to feudal lords on the basis of conditional property
of the benefice and feudal type. Thus, in these countries there was both state feudal
ownership of land and the land ownership of individual feudal lords.

Increase, especially in the Modern Age, of the regulating role of the state in
the economy and socio-economic relations significantly changed the right of
ownership - both in its general legislative interpretation and in specific
competences possessed by one or another person. The idea of absolute rights of the
private owner increasingly gave way to the principles of legitimate restriction of

8
property in the interests of society, the state or expediency of military, economic
and other policies.

The earliest change was the restriction of the land ownership regime. The
preconditions for a limited approach to landowners' rights to subsoil, airspace and
other goods were already contained in the German Civil Code of 1896 and the
Swiss Civil Code of 1907, by their legal perfection, which had a great influence on
the formation of civil law in many countries. In France, where the rights of
landowners were previously the most unrestricted, the tendency to regulate them
was the sharpest. [8]

During the period of capitalism, the concept of "total ownership" was firmly
established. Many codifications of the time defined ownership as absolute, total,
unlimited dominion over a thing. However, not all codifications enumerated the
powers of ownership. [9]

State ownership is developing, including through the nationalisation of

private enterprises. For example, in England and France after World War II, the
state's share in the country's total industrial output was about 20%. The increase in
state ownership in a number of countries resulted from special legislation on
nationalisation of certain private enterprises (with compensation to private owners.
In France, under Popular Front legislation in the 1930s, airlines, railways,
individual shipyards, radio, telegraph, telephone, urban transport, part of the
aviation and oil refining industries were taken over by the public sector. Here, too,
laws were passed after World War II to nationalise electricity, gas, coal, the
automobile industry and some commercial banks.

In a number of countries, including England, the post-war nationalisation

legislation primarily affected enterprises that were unprofitable for their owners
and required substantial funds for reconstruction. In addition, private capital
actually retained control over the state-owned enterprises, primarily through their
management apparatus, which changed little.

9
 In France in the 50s, in Latin American countries in the 60s and 70s of the
XX century, mixed ownership, belonging to mixed economy societies, in which
the state was a shareholder along with private entrepreneurs, became widespread.
Establishment of such companies, as it soon turned out, was particularly
convenient for big business, as state participation in such ownership guaranteed the
latter from possible nationalisation.

State socialist property in the USSR is a legal phenomenon that emerged as a

result of the revolution of 1917. The socialist revolution aimed to abolish private
property and replace it with socialist property. Through nationalisation, the Soviet
state created state socialist property as the patrimony of the people. Today, many
states that were part of the former Soviet Union have privatised state property. [10]

Socialist revolutions have tried to destroy private ownership of the means of

production by replacing it with public, state ownership. But an economy based on
the overwhelming dominance of state ownership proves inefficient.

Also, since the Second World War, there has also been a noticeable
development of state ownership through increased state investment in industries
that required particularly high-risk investments (nuclear power, rocket science,
electronics, etc.).

State ownership was most widespread in Western European countries. The

70s are the peak years in the development of state ownership. Until the 1980s, the
dynamics of development of this form of ownership can be represented by a
general upward trend with a weakly pronounced upward trend. Moreover, the
development had a pronounced cyclical character: the state strengthened its
position in times of crisis through nationalisation and reduced its presence in
periods of economic recovery. A large-scale privatisation of the public sector of
the economy began, after which the ownership structure changed considerably.

The current stage of social development clearly demonstrates the entrance of

many developed countries into a post-industrial stage of development characterised

10
by an increasing distribution of property rights and the formation of increasingly
diverse specifications of property rights between economic subjects.

1.2 Concept and forms of ownership right

One of the fundamental branches of civil law is property law, i.e., the body
of legal rules that ensure the satisfaction of a person's interests by directly
influencing a thing in the sphere and dominion.

The right of ownership is fundamental among other proprietary rights, i.e., it

is the central institution of property law. The right of ownership is a sub-branch of
civil law, which is a set of civil law norms regulating ownership relations by
methods and means of civil law.

The ownership relationship has subjective and objective content. In

objective sense, ownership right constitutes the totality of civil law norms
regulating ownership relations, in accordance with which ownership right arises in
subjective sense. In subjective sense, the right of ownership is the possibility,
enshrined by law, for a person to possess, use and dispose of the property
belonging to him at his own discretion, simultaneously assuming the burden and
risk of its maintenance (legal content). In a subjective sense, the right of
ownership, like any other subjective right, enables a certain behaviour permitted to
an authorised person by law. In this connection, it may be said that ownership is
the broadest property right in terms of content, as it enables the owner to determine
the nature and directions of use of the property belonging to him.

The following definitions of ownership can be found in dictionaries and

legal literature:

 The right of ownership is the most important institute of any system

of law; the totality of legal norms that enshrine and protect the ownership of

11
property by individuals or collectives and the owner's authority to possess and
dispose of property based on this. [11]
 The right of ownership is the right to possess, use the thing at one's
own discretion, which corresponds to the duty of all other persons not to commit
any encroachments on the thing. [12]
 Ownership is the legal ability of a person to possess, use and dispose
of property belonging to him at his own discretion, while assuming the burden
and risk of maintaining it. [13]
 Ownership is the legally secured right of the owner to possess, use
and dispose of the property belonging to him at his own discretion and in his
own interest by performing any actions with respect to this property that are not
contrary to the law and other legal acts and do not violate the rights and law-
protected interests of other persons, as well as the possibility to eliminate
interference of all third parties in the sphere of his economic dominion. [14]

Consequently, gathering all definitions into one, we can single out a

general accurate definition, which is stated in Part 1, Article 2 of the Law of
Ukraine "On Property", "ownership is a social relationship, regulated by law,
concerning possession, use and disposal of property". [15]

Possession is the presence of a thing in the possession of the owner, the

actual possession of the thing, its retention in one's will (e.g., a property on the
balance sheet of a legal entity).

Possession may be de facto and de jure, legal (titular) and illegal (bona fide,
i.e. when the owner did not know and could not have known that he owned the
property without reasonable cause, and unconscientious, when the owner knew or
could have known about it (for example, when buying up stolen goods, when
appropriating found treasure), ancient.

12
 Actual possession may arise either legally (tenancy agreement) or as a result
of illegal possession (theft, robbery). The existence of de facto possession is
therefore not sufficient to recognise it as legal. What is required is the legal basis
for such possession, its legal title. This is what gives legitimate possession a reason
to call it titular possession.

Illegal possession does not have a legal basis, which is why it is called titless
possession. Illegal possession, in turn, is divided into good faith and bad faith.
Bona fide possession is the possession in which the owner does not know and
should not know about its illegality (a citizen bought an item from a thrift shop,
which was previously stolen from the rightful owner). Ancient possession is a type
of possession in good faith. Possession is recognised as ancient when a person who
does not own property, in good faith, openly and continuously possesses it as his
own for a period exceeding the period prescribed by law. In many European
countries, such a period is established by civil law depending on what property the
bona fide owner happens to own.

Ownership has its own forms, therefore the following are distinguished:

1. The property of the people - the land, its subsoil, atmospheric air,
water and other natural resources located within the territory of the country, the
natural resources of its continental shelf, the exclusive (maritime) economic zone
are objects of the right of ownership of the people;
2. Private property - property and personal non-property goods of a
specific individual or legal entity (houses, vehicles, money, securities, results of
intellectual creation and other property of consumption and production purpose);
3. Collective property - property belonging to a certain collective and
necessary for its functioning (property of a collective enterprise, cooperative, lease
or joint-stock company, economic society, business association, trade union,
political party or other public organisation, religious organisation, etc.);

13
 4. State property - property, including funds necessary for the state to
perform its functions (e.g. unified energy system, information system,
communication systems, public transport, state budget funds, etc.). State property
is divided into state property (republican property) and property of administrative-
territorial units (communal property). Municipal property is represented by local
authorities: township, city, district representations of state power. [16]

Since the topic of the coursework is directly related to public property law, it
is worth dwelling on this form and examining it in its entirety.

State ownership is a system of relations in society in which it is the state,

through its institutions, that acts as the subject of ownership. Thus, absolute
property rights are not held by individuals, but by public, political and economic
authorities. The objects of this form of ownership are tangible and intangible
values used in the national interest: land and its subsoil, money, gold and foreign
exchange reserves, fixed assets and current assets of enterprises in various
branches and spheres of the economy (industry, power industry, transport,
communication, etc.).

State ownership is characterised by a high level of socialisation. In state-

owned enterprises, the means of production and the production process are
communalised throughout society. The results of the production of state-owned
enterprises are the property of society as a whole. This form of ownership puts all
members of society on an equal footing in relation to the means of production. It is
indivisible: the objects of ownership belong to all members of society together, not
to each individual. As production becomes more communal, ownership becomes
more anonymous and its functions are divided between different levels of
specialised public bodies.

The process of formation of state property is usually carried out in the

following ways: nationalisation by the state of objects in other forms of ownership

14
(i.e. in the private sector); creation of new objects at the expense of the state
budget; purchase by the state of objects in the private sector. [17]
State property, by its origin and the nature of its use, is the property of the
entire nation, and the state is called upon to manage the objects of this property in
accordance with the national interest and priorities.

1.3 Subjects of the right of state ownership

Property is certain material goods that must belong to someone. The subjects
of ownership are the people, citizens, legal persons and the state, as well as other
states and their legal persons, joint ventures, international organisations, citizens of
other states and stateless persons. Property may be owned on the basis of common
(shared or common) ownership by citizens, legal entities and the state.
Combination of property, being the property of citizens, legal entities and the state
and creation on this basis of mixed ownership, including joint ventures with
participation of legal entities and citizens of other states is allowed. Citizens, legal
entities and the State may have their own property located on the territory of other
States.

As far as state ownership is concerned, it has its own entities that have the
right to own, use and dispose of this property. State ownership includes state
ownership and ownership of administrative-territorial units (communal
ownership). The subjects of the right of state property are the state, and the
subjects of the right of communal property are administrative-territorial units
represented by oblast, district, city, settlement and village councils of people's
deputies. On behalf of the people the state property is managed by the legislative
body of state power and local councils of people's deputies, as well as state
bodies authorised by them, which decide on the establishment of enterprises and
the determination of their purposes, reorganisation and liquidation, and exercise
control over the efficient use and preservation of the state property entrusted to
them. other powers according to legislative acts.
15
 Subjects of property rights are entitled to exercise their subjective right
and subjective duty in accordance with the principle that they are entitled to
carry out economic activities without restrictions that are not contrary to the law
in force. [18]

Since the state is a specific subject of property rights, the exercise of its
powers of ownership consists in giving it the right to decide who and how will
ensure the use of goods belonging to the state, as well as in specific means of
exercising the state's powers of ownership. These functions of the state are
defined as managerial functions.

Managerial legal relations arising from state property consist of: - Relations
to property as their own in the form of exclusive control over it; assignment of
property to various enterprises, institutions, organisations; acquisition and
distribution of income (results for the use of property); managerial relations of
executive bodies of state power - ministries, departments and others; managerial
and economic activities of enterprises; intraproduction co-operation.

Consequently, the right of state ownership is realised not only in civil, but
also in state-law, administrative-law relations. The concepts of state and state
regulation belong to the jurisdiction of public law. At the same time, the
government exercises its power as an authority.

In doing so, the government exercises its capacity as an authority. The

functions of the state as a subject of public law that exercises power must be
distinguished from those of a civil law subject. Therefore, the notion of governance
must also be considered from the perspective of the way in which the government
exercises these powers. For example, the power to transfer objects from state to
communal ownership will be realised in state-legal relations, while the preparation
of an integral property complex for privatisation will be realised in administrative-
legal relations.

16
 Based on the above, the subject of the right of state ownership exercises its
powers of ownership purely nominally. In reality, the managerial functions of the
owner-state are exercised through the bodies authorised by the state. [19]

1.4 Objects of the right of state ownership

Since there are subjects of property rights, there must also be objects
(according to the theory of law, any relationship, as regards its structure, must have
subjects, objects, content of legal relations (subjective rights) and legal duties)).
The subject of any legal relationship, as generally recognised by the theory of law,
is tangible and intangible goods (things, actions, results of actions, personal non-
property goods), about which legal relations have arisen and mutual subjective
rights and legal obligations are aimed at using or protecting them.

State-owned properties have their own specific characteristics. The first

peculiarity is that state-owned property consists of two varieties by its legal
regime. One of them is assigned to state-owned legal entities on special property
rights. This "distributed" state property forms the basis for these organisations as
legal entities in their respective relations. The other property remains unassigned to
the state-owned legal entities. This is land, subsoil, other natural resources, as well
as money of the state and local budget, gold reserve, diamond and currency funds.
With this property the state is liable for its obligations and also for the obligations
of budgetary organisations and institutions when they do not have enough money
to pay their debts.

The second peculiarity of the objects of state ownership law is the

impossibility to consider such objects as land and other natural resources as
ownerless property, because the legislation of many countries establishes a
peculiar presumption of state ownership of these objects, which are the exclusive
property of the people.

The third peculiarity of the above objects is the authority of the state as the
owner over them, which it exercises through management of its property.
17
 The property assigned to state bodies as budgetary institutions is in their
operational management and is recorded on the balance sheet of the Council of the
Nation or the relevant structure of another authorised body.

The property of the Armed Forces, Railway, Border and Internal Troops, the
Security Service, internal affairs bodies and other institutions financed from the
State Budget belongs to the objects of state property rights. The procedure for the
formation and use of the said property is regulated by relevant laws.

Objects also include land, property supporting the activity of the legislative
body of the state power of the country and the state bodies it forms; property of the
armed forces, state security bodies, border and internal troops; defence facilities;
the unified energy system; public transport, communication and information
systems of national (republican) importance; and funds of the republican budget;
republican state bank, other state republican banks and their institutions and the
credit resources created by them; republican reserve, insurance and other funds;
property of state-owned companies; social and cultural facilities or other assets that
constitute the material basis of the country's sovereignty and ensure its economic
and social development; other property transferred to the ownership of the country
by other states, as well as legal persons and citizens. From this list, two categories
of state-owned property can be distinguished:

a) Property that cannot be owned by individuals at all, i.e., property that

can only be used, possessed and disposed of by subjects of state ownership (e.g.,
defence facilities, the National Bank of the country);
b) property that may in principle be owned by other entities, but which
by its functional purpose should serve the public interest (e.g., the property of
higher and secondary specialised educational institutions). [20]

State property is also recognised as property securing the activities of the

President, the supreme authority and the bodies they form. This provision is very

18
important because these positions are elected and the same people will not be in
office for life, there will be other people who will succeed them.

Thus, we can see that state property includes any material things (mainly
property, institutions, certain strategic objects) designed to ensure the activity of
state bodies, ensure economic and socio-cultural development of both the entire
state and certain territories and these goods must not be the property of other
persons, subjects of property rights.

19
 CHAPTER 2. Peculiarities of the regulation of the right of state
ownership on the example of certain states

2.1 The right of state ownership in the USA

The institution of property rights is one of the most significant and most
protected legal institutions in the US. State laws and jurisprudence are the source
of property rights regulation. The 14th Amendment of the US Constitution states
that no state may "deprive any person of life, liberty, or property without due
process of law. [21]

"Property or ownership can be defined as the exclusive right to own, use and
dispose of things or rights of economic value.” In the US, the concept of property
is identical to that of ownership.

Private ownership, as well as public and cooperative ownership, are

prevalent in the United States. Most firms in the United States have some sort of
private ownership, whether it be individual, partnership, or corporate ownership for
bigger enterprises. However, from the dawn of capitalism in the United States,
various types of public ownership have existed in the minority. [22]

In the US economy, there have been and continue to be several sorts of

governmental ownership of firms. The federal (national) government owns some.
Some are owned by states and municipalities.

In the US, public ownership has arisen and developed mainly by

accumulating money in the state budget and using it to stimulate the economy,
including the creation of individual state-owned enterprises. [23]

Public land - one-third of the total land area of the country, postal property,
irrigation and water supply systems, power and gas supply systems, airfields,
canals, roads and bridges, railways, road and port facilities, power generation and
20
distribution systems, science and research centres, laboratories, colleges,
universities, military property and equipment, memorials and monuments, etc. - are
part of public property.

The structure of state (public) property in the US is very complex. The

federal government, state governments and local governments (this includes
counties, municipalities, city governments, school districts and special district
governments) are all involved.

Public enterprises in the US are managed by relevant ministries or special

standing commissions established by a decision of Congress. A specific feature of
the American public sector management model is the transfer of US state-owned
enterprises to the operational management and operation of private corporations.
The state, as the owner of the enterprise, takes care of marketing of its products
and provides appropriate orders. [24]

Public property in the American state is characterised by a preponderance of

it being in the hands of local government. The majority of public property is leased
out to private monopolies. For example, after World War II, state-owned
aluminium plants, nuclear plants and steel mills were leased out.

2.2 The right of the state to possess property in the United Kingdom

One of the main sections of English civil law is property law. All rights in
rem in England are regarded as a type of property right. Ownership means the
relationship that a person has to an object that he owns. It is the totality of all the
rights he has over the said object. Possession refers to "a right unrestricted as to
user, unrestricted as to disposition and unrestricted as to duration".

The source of the legal regulation of rights in rem is the Property Acts of
1925 and judicial practice and doctrine.

In most developed capitalist countries, so-called public property is

distinguished within public property. In the UK, this corresponds to "crown
21
property" (the totality of lands and possessions within the United Kingdom
belonging to the British state).

The Crown Estate is a collection of lands and interests in the United

Kingdom's regions of England, Wales, and Northern Ireland controlled by the
British monarch as a single entity, making it a "sovereign state estate" that is
neither state property nor private property of the monarch.

The sovereign does not engage in the estate's management or administration

and has only limited authority over its activities. Instead, the huge portfolio of
properties is managed by a semi-independent, registered public entity directed by
the Crown's succession commissioners, who have "ownership powers" over the
estates but are not "proprietors in their own right." The monarch entrusted the
revenue from these hereditary estates to Her Majesty's Government in exchange
for immunity from the requirement to support the Civil Government. As a result,
these earnings are directed directly to Her Majesty's Treasury for the benefit of the
British people. The Crown Estate is technically responsible to the United Kingdom
Parliament, which is required by law to submit an annual report to the sovereign, a
copy of which is forwarded to the House of Commons. [25]

The Crown Estate is a company established by the Crown Estate Act of

1961. Under the Act, it is a body constituted in perpetuity as a trust estate. The
Crown Estate's public duty, which is independent of the government and the queen,
is to invest and manage certain property assets belonging to the monarch and to
remit excess revenue to the Treasury on an annual basis. [26]

The 1961 Act classifies as Crown property the land that the sovereign uses
while in power. The Crown owns all lands adjoining the coast or navigable rivers,
foreshore lands, lands between high and low tide, lands adjoining sea bays, lands
originally owned by or subsequently acquired by the Crown, lands and rights to
land acquired by the Crown as escheat or by forfeiture.

22
 The Crown has exclusive rights to exploit minerals from the seabed and
subsoil (the details of mining are regulated in the Continental Shelf Act 1964 and
the Territorial Waters Jurisdiction Act 1878).

The Crown has the exclusive right to:

 the exploitation of gold and silver deposits located on Crown land or

on the lands of subjects of the Queen of England;
 the exploitation of salt deposits;
 the prospecting and exploitation of deposits, petroleum, mineral oils
and natural gas. [27]

2.3 The state's ability to own property in France

France, like any state in general, undoubtedly needs economic resources to

carry out the external and internal functions entrusted to it. The most important of
these resources is the property owned by the state (domain publique). The term
domain in this context means property and the adjective publique can be translated
as 'state', 'public'. The definition of "public" property indicates the entity to whom
the right of ownership belongs and who is accordingly the owner of the property in
question. [28]

The subjects of public property rights in France are public legal entities that,
by virtue of Article 34 of the French Constitution, are created by the legislative
executive. These legal persons are: the State (France); the administrative-territorial
entities (which, by virtue of Articles 72 and 74 of the French Constitution, include
communes, departments, regions. entities with special status and overseas entities);
public institutions (administrative public institutions (national employment service,
national social security insurance funds, hospitals, lycées, universities, museums)
and commercial and industrial public institutions (National Railways, Paris
Transport Network, Post Office); other public law entities (associations in the

23
public interest and independent administrative bodies (Mediator of the Republic,
National Commission for Informatics and Freedoms, etc.))

The objects of public property law indicate the basic attributes and functions
of the state. One of the main attributes of any state is the existence of a territory.
According to article 538 of the French Civil Code (the source of the regulation of
rights in rem), all parts of French territory that cannot become subject to private
ownership are part of public property (domain publique), including roads, tracks
and streets maintained by the State, rivers and navigable or rafting rivers, banks,
sea reclaimers and places abandoned by the sea, ports, harbours and roadsides.
Also, according to Article 539, all property not developed by anyone and without
management, as well as the property of persons who have died without heirs or
whose inheritance has been abandoned, belong to State property.

One of the most important functions of the state is the protection of its
territory and its population. Consequently, gates, walls, ditches, defences of
fortified places and fortresses constitute a special part of the State's property in
accordance with Article 540. In other words, the State property includes all
structures that can perform the defensive function and contribute to the defence of
the territory. In addition to this, Article 541 includes as State property the lands,
fortifications and ramparts of places that are no longer military fortified places.
However, the law imposes a list of conditions necessary for these sites to remain in
State ownership - the sites in question have not been properly alienated or the
State's ownership has not been extinguished by the lapse of time. In other words, as
long as a site is a military fortification, it indisputably belongs to the State; as soon
as it is no longer so, the question of ownership arises. And in the event that no
person disposes of the property in question, it indisputably remains in the
possession of the State.

Also, according to Article 560 of the FGC, islands, islets, sediments of land
which form on the bottom of navigable or rafting rivers or rivers belong to the
state, unless there is a transaction or limitation establishing otherwise. Article 713
24
mentions that property which does not have an owner belongs to the State. The
large lakes Le Berthet and Linesen are the exclusive property of the State. French
law includes as State property the airspace, subsoil, mines and immovable property
intended for their exploitation. [29]

State property may be acquired by deed of sale, exchange, gift, inheritance

or by virtue of acquisitive limitation if the possession is intact, as well as by taking,
subject to public utility.

In the case of public property, the definition of the property boundary is not
done through an adversarial process with the obligatory consent of the
neighbouring private person. Everything happens unilaterally, as decided by the
responsible government agency.

When the criteria of public property are met, the property classified as such
is not subject to alienation and is not subject to a statute of limitations. This
principle was originally intended to protect property belonging to the King of
France. It is now fundamental and seeks to protect the public interest of the state.

2.4 The government's right to own property in Italy

Article 42 of the Italian Constitution of 1947 states that property can be both
public and private. However, no codified or systematised legislation on public
property (proprieta pubblica) has been adopted in the country, and the specific
features of the legal regime of the objects in question are set out in the Italian Civil
Code of 1942 (Articles 822 to 830) and in individual legislative acts. [30]

The Italian doctrine uses the expression "beni pubblici" - "public things",
"public property" - as the term for items of public property. [31]

The subjects of ownership of public property are the State and other subjects
of public law (Enti pubblici), which include regions, municipalities, public
authorities and institutions. Modern Italian legal literature generally does not
question the fact that public property can be the object of ownership, i.e. owned on
25
the basis of a real property title. However, the content of the public property right
and the legal regime of public property differ from private property right and the
legal regime of the corresponding objects, and the legitimacy of such distinctions
is based on the provisions of art. 42 of the Italian Constitution.

The legal status of public property is dedicated to Chapter II of Book III of

the Italian Civil Code. Article 822 lists as public property the following: sea
shores, roads and ports, rivers, lakes, other waters (in accordance with the
provision of special laws), as well as articles intended for national defence. State
property also includes: state-owned roads, highways and railways, airports,
aqueducts; buildings of historical, archaeological or artistic value; collections of
museums, archives, libraries; and other property classified as state property by
special laws.

In Italy, there is a complex classification of items belonging to public

property:
1. Things belonging to public domains are demanio pubblico or beni
demaniali (Art. 822 of the Italian Civil Code), which in turn are divided into two
groups:
 i beni del demanio necessario - property that necessarily belongs to the
public domain and includes immovable things belonging to the State and in some
cases to the regions: maritime objects (coast, beaches, ports, lagoons, roads, river
mouths, shipping channels); water objects that can be used in the general interest;
military objects (forts, fortifications, fortification lines);
 i beni del demanio eventuale - property that does not necessarily belong
to the demanio pubblico (i.e. may not belong to it) and covers movable and
immovable objects belonging to any of the public territorial entities, in particular
roads, railways, aviation facilities, cultural heritage sites, waterworks, etc;
2. Patriotic goods excluded from circulation - beni patrimoniali
indisponibili - property intended for public services, as well as forests, mines,
26
quarries, peat bogs, barracks, armaments, military aircraft and warships (art. 826 of
the Italian Civil Code).
State property is inalienable and can only be foreclosed on in favour of third
parties in cases prescribed by law relating to that property.

State authorities manage state property. They shall protect the ownership of
this property in accordance with the procedures established by administrative and
civil law. Property belonging to the provinces and communes is subject to the same
regime as other public property. The same legal regime applies to communal
markets and cemeteries. State property includes the rights belonging to the State,
provinces and communes over property belonging to other persons where this
property is necessary for the achievement of objectives in the public (state)
interest.

Also, part of the property of the state are: forests, mines, quarries and peat
bogs, mined-out deposits; objects found in the ground that are of historical,
archaeological, paleontological or artistic value; property granted to the President
of the Republic; barracks, armaments, military aircraft and ships.

The property of the state, provinces and municipalities includes buildings

intended to house state institutions as well as other property intended for the
performance of public service. In addition, the state also owns ownerless property.

27
 CONCLUSIONS

Ownership is one of those concepts around which the best minds of mankind
have been crossed for centuries. There is no unambiguous definition of state
property in the scientific literature. According to some authors, state property is
understood as "all tangible and intangible property at the disposal of the state";
others refer to state property only as part of the national wealth that is involved in
economic circulation; some scientists define state property as "relations between
people regarding appropriation of goods for the purpose of realization of state and
public interests"; others define it as "relations on appropriation of results of
functioning of objects of property right.”

Public ownership occupies an important place in national economies. It

ensures the sustainable reproduction of social capital, allows the national
government to maintain independence in its relations with foreign and national
ownership entities, ensures capital-intensive industries, and guarantees safe
business in the market for all ownership entities within the country in the event of
an economic crisis.

The history of foreign democracies has demonstrated that property rights

were crucial to their political development.

The paper examined the structure of ownership, especially state ownership;

the legal regulation of ownership relations in two foreign legal systems -
continental, i.e., Romano-Germanic (France, Italy) and Anglo-Saxon (USA and
Great Britain).

28
 Classical (Roman-Germanic) Western jurisprudence viewed ownership as
the most complete dominion over an object. This understanding of property was
derived from Roman private law. The famous article 544 of the French Civil Code
(better known as the Napoleonic Code) of 1804 defined ownership as "the right to
use and dispose of things in the most absolute manner...".

The Anglo-Saxon system of law is characterised by the causal rather than

normative type of legal consciousness: a fact is compared here not with a
normative model but with another similar cases, judicial and law-enforcement
practice. The rules of law in Anglo-Saxon legal systems are very detailed and
casuistic, since they are formulated as precedents in solving specific cases. Great
importance is attached to formalised procedures, procedural rules and legal
remedies.

State ownership plays an important role in national economies. It ensures the

sustainable reproduction of social capital, enables the government to maintain
independence in its relations with foreign and national ownership entities, ensures
the operation of capital-intensive industries, and guarantees the safe operation of
all ownership entities in the domestic market in the event of an economic crisis.

To summarise the above, in developed capitalist countries such as the UK,

Spain, France and the US, public ownership should remain a relevant form of
property, given its key role in implementing public, economic and social policies.

29
 LIST OF REFERENCES

1. История права государственной собственности [Digital resource] –

2005 - Mode of access to the resource: https://journal.zakon.kz/203746-istorija-
prava-gosudarstvennojj.html
2. Иоффе О.С. Избранные труды по гражданскому праву: из
истории цивилистической мысли. Гражданское правоотношение. Критика
теории «хозяйственного права» / О.С. Иоффе . — Москва: Статут, 2000. — 13
с.
3. Нерсесянец В.С. Римское частное право: Учебник для вузов / Под
общ. ред. В.С. Нерсесянца. 2-е изд., изм. и доп. - Москва: Норма, 2006 – 381
с.
4. Дернбург Г. Пандекты. Т. I. Общая часть / Пер. Г. фон
Рехенберга; под рук. и ред. профессора Моск. ун-та П. Соколовского. -
Москва: Университ. тип., Страстной бульвар, 1906 – 189 с.
5. Кофанов Л.Л. Вещные права на землю в избранных фрагментах
из Дигест Юстиниана / Пер. с лат.; отв. ред. Л. Л. Кофанов. Москва: Статут,
2006. Книга пятидесятая, титул X
6. Барон Ю. Система римского гражданского права 3-е изд. Вып.
первый. Кн. I. Общая часть / Ю. Барон. — Санкт-Петербург: Пер. Л.
Петражицкого, 1909. — 54 с.

30
 7. Рубаник В.Е. История государства и права зарубежных стран
Учебник для вузов. Стандарт третьего поколения. / В.Е. Рубаник . — Санкт-
Петербург: Питер, 2011. — 544 с.
8. Омельченко О. Всеобщая история государства и права. Том 2 / О.
Омельченко. — Эксмо, 2000. — 149 с.
9. Венедиктов А. Государственная социалистическая
собственность / А. Венедиктов. — Издательство академии наук СССР, 1948.
— 271 с.
10. Попова, А. В.  История государства и права зарубежных стран :
учебник и практикум для прикладного бакалавриата / А. В. Попова. —
Москва : Издательство Юрайт, 2019. — 203 с.
11. Большой Энциклопедический словарь — Большая Российская
энциклопедия, Норинт, 2000. — 1456 с.
12. Белов В. Гражданское право: актуальные проблемы теории и
практики / В. Белов. — Москва: Юрайт, 2009. — 488 с.
13. Суханов Е. Гражданское право: Учебник. 2-е изд., перераб. и
доп / Е. Суханов. — Москва: Волтерс Клувер, 2003. — 208 с.
14. Сергеев А. Гражданское право: Учебник. 2-е изд., перераб. и
доп. / А. Сергеев, Ю. Толстой. — Москва: Статут, 2001. — 347 с.
15. Закон України. Про власність [Digital resource] – 1991 - Mode of
access to the resource: https://zakon.rada.gov.ua/laws/show/697-12#Text
16. Цивільний кодекс України [Digital resource] – 2003 - Mode of
access to the resource: https://zakon.rada.gov.ua/laws/show/435-15#Text
17. Мильнер Б. Теория организации / Б. Мильнер. — Москва:
ИНФРА-М, 2004 — 648 с.
18. Закон України “Про місцеве самоврядування в Україні” від 21
травня 1997 // Відомості Верховної Ради. - 1997. - N 24. - Ст.170
19. Ч. Н. Азімов, М. М. Сібільов, В. Борисова та ін. Підручник для
студентів юридичних спеціальностей вищих закладів освіти / За ред. проф. Ч.

31
Н. Азімова, доцентів С. Н. Приступи, В. М. Ігнатенка. — Харків: Право,
2000. — 368 с
20. Класифікація форм власності [Digital resource] – 1994 - Mode of
access to the resource: https://zakon.rada.gov.ua/laws/show/697-12#Text
21. 14th Amendment [Digital resource] –Mode of access to the resource:
https://www.law.cornell.edu/constitution/amendmentxiv
22. Objects, subjects, and types of possessory interests in property
[Digital resource] - Mode of access to the resource:
https://www.britannica.com/topic/property-law/Objects-subjects-and-types-of-
possessory-interests-in-property
23. Васильев Е. Гражданское и торговое право зарубежных
государств / Е. Васильев, А. Комаров. — Москва: Международные
отношения, 2004. — 412 с.
24. Экономика США: Роль государства в американской экономике
[Digital resource] - 2006-2015 - Mode of access to the resource:
http://www.ereport.ru/articles/weconomy/usa5.htm
25. Crown Estate [Digital resource] - Mode of access to the resource:
https://en.wikipedia.org/wiki/Crown_Estate
26. FAQs [Digital resource] - Mode of access to the resource:
https://www.thecrownestate.co.uk/en-gb/resources/faqs/
27. Смирнова И. Управление государственным и муниципальным
имуществом / И. Смирнова, С. Ильин. — Санкт-Петербург: СПбГИЭУ, 2011.
— 487 с.
28. Paris: Chez Firmin Didot, libraire [Digital resource] - 1850 – 314 р. -
Mode of access to the resource: https://gallica.bnf.fr/
29. Code Napoléon [Digital resource] - 1807 – 732 р. - Mode of access to
the resource: https://gallica.bnf.fr/
30. Codice civile [Digital resource] - Mode of access to the resource:
http://www.altalex.com)

32
 31. Arsi M. I beni immobiliari nella teoria dei beni pubblici // I luoghi
delle amministrazioni. Le nuove forme di razionalizzazione e di gestione del
patrimonio immobiliare utilizzato per gli uffici pubblici / A cura di A. Mari. Roma:
SSPA, 2005. P. 22.

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