DEJSTVO, ZAŠTITA I PRESTANAK FIDUCIJARNOG PRENOSA SVOJINE PREMA NACRTU ZAKONIKA O SVOJINI I DRUGIM STVARNIM PRAVIMA SRBIJE

Abstract

The subject of the paper is the consideration of certain segments of the physiognomy of the institute of fiduciary property as an atypical real guarantee, which is not institutionalized in positive Serbian law (nor has it ever been), but which has long been known by European economic practice, as well as numerous newer legislations, especially those in our close environment. The introduction of this institute was proposed by the Draft Code of Property and Other Real Rights of Serbia from 2011, which is one of the two drafts of Serbian civil law de lege ferenda (along with the Draft Civil Code of Serbia, which does not regulate this institute). Considering the importance of the reform of the domestic law of real security of claims, as well as the harmonization of domestic law with EU regulations, the author critically analyzes and evaluates the solution of the Draft from 2011, through consideration of the following issues: effect, protection and termination of the institute, titled as: law entrusted security properties and right expected security properties. The author evaluates the regulations of the Draft as expedient, developed and precise, and the institute as useful in many ways for future Serbian civil law. It is a right that would additionally affirm the market of services, especially banking services, in a way functionally similar to the lien, but different and distinctive enough, so that fiduciary property would have a formally legally recognized special place in the expanded numerus clausus of Serbian real rights in the future.