POJAM FIDUCIJARNOG PRENOSA SVOJINE KAO REALNE GARANCIJE

Abstract

The subject of this paper is a critical analysis of the concept of fiduciary transfer of property, as a specific real guarantee in modern comparative civil and commercial law. This legal construction has been functioning in European legal practice for a long time, and in some legislations as a reaffirmed real guarantee originating from Roman law, suitable to satisfy various interests of counterparties in the sphere of providing financial and banking services. Since positive Serbian Real law does not regulate this institute, the aim of the paper is to assess the existing legal and doctrinal provisions of this legal construction in foreign regulations, as well as in drafts of domestic laws de lege ferenda. The author estimates that this is a useful institute, which should be included in list of domestic rights of security rights in rem de lege ferenda (which is its higher gender term) and which is also in line with the solution of the "soft" EU law, with which we are trying to harmonize the domestic solution. As the most significant differentia specifica in this concept, the author singles out: the creation of a guarantee by specific division of property powers between the trustee and the beneficiary, with the possible lack of publicity (ability to conceal debt and debtors' creditworthiness) and reduced formalities in the exercise of the right of settlement - which are significant advantages over liens, as the most related institute.