Possession and possessory remedies in the Draft of Modifications to the Civil Code of Russian Federation in the mirror of Jhering?s doctrine of possession

Abstrakt

A core idea behind Rudolf von Jhering?s doctrine of possession is that possession is an external manifestation of the right of ownership. Therefore, as a matter of fact, possessory remedies are aimed at facilitating protection of the latter and not of the possession as such.
The fact that in the final analysis possessory remedies could be applied for protection of a possessor in bad faith, even of a thief or an invader, was for Jhering an inevitable evil resulting from facilitating the proof of the right of ownership in this way. However, to his mind, negative aspects of such approach are to a very high degree compensated in practice by its advantages. At the same time, another distinguishing feature of the Jhering?s conceptualisation of possession was its ?spiritualization?, which differed much from the widespread tendency of its schematic vulgar generalisation as an actual (physical) control over the object of possession. The institute of possessory remedies is lacking under the currently binding provisions of the Civil Code of the Russian Federation, which recognises only a petitory remedy for protection of the possessio ad usucapionem, comparable with the actio in rem Publiciana of the Roman law (clause 2, Article 234 CC RF). Still, the possessory remedies are inculcated in the relevant provisions of the Concept of Development of Civil Legislation of the Russian Federation designed to become the basis for updating the CC RF, as well as in its outcome: the Draft of Modifications to the Civil Code of the Russian Federation, which has been on the floor of the Russian Parliament starting from 2012 and has already been partly implemented. Despite of the fact that the drafters referred, inter alia, to the ideas of Jhering to be a source of their inspiration, they are evidently going to promote the idea peculiar to a specific possessory suit of Medieval Western law, the actio spolii, in the form of the what is referred to condictio ex canone redintegranda. Such conceptualisation of the
possessory remedies seems to be rather far from Jhering?s doctrine.