SLIČNOSTI I RAZLIKE IZMEĐU FIDUCIJARNOG PRENOSA SVOJINE KAO PRAVA REALNOG OBEZBEĐENjA I RUČNE ZALOGE

Abstract

The paper examines two special real guarantees in modern domestic and foreign real law for securing claims, namely: manual pledge in movables (pignus) and fiduciary transfer of property. Although both institutes have a long legal tradition, since they originate from Roman law, the pignus was continuously used in almost all European regulations, including domestic one, while the fiduciary transfer of property for the purpose of real security was long forgotten, but has been reaffirmed in comparative law. It experienced a renaissance primarily in German business, especially banking practice, but also in numerous recent regulations, which institutionalized it. Hence the desire to become more familiar with the properties of this real sui generis guarantee, which is not standardized in domestic law (nor has it ever been), although judicial practice knows it. Its introduction into the future Serbian law would be potentially useful, provided that it is determined that the differences, and especially the advantages compared to the existing and related real security rights, are significant - in order to expand the range of domestic real guarantees de lege ferenda. This is the proposal of the Draft Code of Property and Other Real Rights of Serbia from 2011, which represents one of the two legislative proposals drafted so far for Serbian future civil law, which the author assesses as a positive step forward. In the paper, the author critically analyzes the similarities, and especially the differences, between these two institutes (primarily in the object, content, effect, legal nature, etc.), with the aim of their precise demarcation, while conceiving his own proposal de lege ferenda.