TRI ATIPIČNA PRAVA REALNOG OBEZBEĐENjA POTRAŽIVANjA U SRPSKOM I U „MEKOM“ PRAVU EVROPSKE UNIJE

Abstract

By using a comparative and axiological method, the author analyzes three specific civil law institutes, locating their similarities and differences: the right of retaining possession; the right of retained property, ie. pactum reservati dominii (as institutes that exist in domestic Law on obligations); and fiduciary transfer of property (which is not regulated in domestic positive law). The subject of consideration in the paper are: the concept; properties; establishment conditions; functions; similarities and differences among these three security rights in rem, first in domestic law, and then in the law of the European Union. The aim of this paper is to formulate an answer to the question of the justification of the existence of these institutes in the future Serbian law, with their previous delimitation; as well as the degree of harmonization of domestic positive law and two drafts of potential future Serbian civil law with EU law. The author estimates that these three institutes are significantly different, and in many ways useful for Serbian law de lege ferenda, and they should coexist, so author advocate the formal introduction of fiduciary transfer of property for security purposes in Serbian law, which would expand the range of domestic security rights in rem, which is in line with the solution of the DCFR, ie. EU “soft” law, that the domestic solution needs to be harmonized with.