RAZGRANIČENJE NIČIJE STVARI OD SRODNIH KATEGORIJA U KONTEKSTU STICANJA SVOJINE OKUPACIJOM

Abstract

By using the normative, historical, comparative and axiological method, the author examines nobody's objects - as an object of property acquisition through occupation, starting with Roman law, until today. The focus of the analysis is the solution of the occupation in Serbian positive law in terms of what is allowed: the object, the subject, the conditions for acquiring property, as well as the explanation of the ratio legis of the institute. In addition, the paper provides a brief overview of some foreign positive legal solutions, in order to locate the advantages and disadvantages of the domestic one, while pointing out the solutions contained in the proposals of the future Serbian civil law. The paper contains an explanation of the elements of the concept of nobody's property, as a permitted object of occupation, in order to define it positively, with a precise demarcation from related institutes (negative definition), namely: hidden treasure, ordinary hidden property and someone else's lost property. The difference between the compared institutes is significant due to the different legal consequences that arise from the appropriation of someone's property, on the one hand, and those (real and obligation law) consequences that arise from different types of findings of the three remaining categories of objects, as special ways of original acquisition of property. Finally, the author presents arguments in support of the possible extension of the object of occupation in domestic law de lege ferenda to immovable objects, as well as further affirmation of the institute in practice.