FIDUCIJARNO OBEZBEĐENJE NA DIGITALNOJ IMOVINI

Abstract

The subject of the paper is the consideration of the impact of the digitalization process on certain institutes of domestic civil law, such as the premiere introduction of the institute of digital property and the creation of fiduciary security on it. In the paper, the author, using normative, comparative and axiological methods, analyzes and evaluates the newly introduced solutions of the Digital Property Act (DPA), which embodies a kind of lex specialis in the field of civil law, specifically - solutions related to a particular real guarantee - "fiduciary on digital property", which is problematic because this institute does not have a clear status in domestic judicial practice. Namely, the fiduciary transfer of property is not regulated in domestic law at the level of a general norm, nor has it ever been so far, except at the level of an exception in another special regulation (the Financial Security Act). The author of the paper answers the question of the adequacy of the DPA solution of “fiducia”, locating its advantages and disadvantages, giving its legal qualification, assessing its compliance with the positive real law of the Republic of Serbia, as well as with the UNIDROIT principles, which represent international rules-guidelines for national legislators in regulating digital property and real guarantees on it. The author assesses that this solution is innovative, although premature in domestic conditions, insufficiently clear, terminologically and substantively inconsistent with the physiognomy and effect of the institute of fiduciary duty in contemporary comparative law. The paper also formulates specific proposals for the correction of the considered DPA solutions in order to optimize the future regulation of this atypical, but more than useful real guarantee for Serbian law de lege ferenda.