Acquisitive Prescription of Moveable Property under Russian Law

Recent times have seen increasing scholarly work in the area of comparative property law.¹ Much of this has been done within Europe and special mention must be given here to Books VIII and IX of the Draft Common Frame of Reference,² on moveable property. To date, however, such work has given little consideration to Russia. The obvious reason for this is that Russian law is less accessible than the civil codes of major European legal systems such as France and Germany, or the common law in jurisdictions such as England. Little is written on it other than in Russian.

Yet there are significant reasons for property law scholars to consider Russian property law. In the first place, there is a broad commonality between it and that of civilian property law legal systems, including Scotland. As we shall see, modern Russian private law owes much to the heavy influence of Pandectist legal thinking in the late nineteenth century. Secondly, there is a modern openness in Russia to developments within the civil legal tradition, as particularly evidenced by the post-Soviet codification work. The policy choices made by legislators here and in subsequent amending legislation, together with the judicial decisions interpreting this merit study. Of course Russia has experienced significant political changes in recent decades not witnessed in western European countries. These have impacted on its property law. They add interest to the study.

Clearly we cannot consider all of Russian property law in this article. Our focus is acquisitive prescription of moveable property. This is partly influenced by our expertise but is also because of a particular analytical tool which can be used, namely the Scottish Law Commission’s Report on Prescription and Title to Moveable Property (2012).³ The reason for the project which led to that report was a significant gap in Scottish private law. There is no clear rule of acquisitive prescription in relation to moveable property.⁴ In the Discussion Paper which preceded the Report, the SLC carried out a detailed review of other jurisdictions. Typically these have the relevant rules in their civil codes or statutes.⁵ The review also considered the DCFR. Perhaps unsurprisingly Russia did not form part of this study. If it had, it would have been discovered to be more typical than Scotland as Russia does have a legislative regime for acquisitive prescription of moveable property. The SLC’s recommendations take a civilian approach to the subject, something shared by Russia. The Scottish Government has to date not taken forward the recommendations. Accordingly, there is still the opportunity to learn lessons from other systems, in particular the practical value to the economy and society of having such a regime. This is a subsidiary purpose of this article.

We begin by providing a short overview of private law and the court system in Russia before considering in some detail the rules on acquisitive prescription of moveable property. Among the particular subjects we examine are the nature of the possession needed, the requirement of good faith and the prescriptive period. We consider finally the question of exceptions.

Modern Russian private law can be traced to the nineteenth century. Although the Corpus Iuris Civilis of Roman law was never directly applied by the Russian Imperial courts, except in Bessarabia,⁶ the second half of the 1800s saw intensive and significant borrowing of the German law of the Pandectists.⁷ It can therefore be said that Russia forms part of the wider European ius commune⁸ and the courts sometimes refer to Roman law in their judgments. For example, the State Arbitration Court of Moscow has cited Ulpian’s famous rule: nemo plus iuris ad alium transferre potest, quam ipse haberet (no-one can transfer a better right than that person has).⁹

Nowadays Russian private law is heavily statutory. The Civil Code of the Russian Federation,¹⁰ like the German Civil Code and other codes in that tradition, has a general part. It is supplemented by hundreds of statutes dealing with particular areas. Mention must also be made here of the Ordinances of Plenum of the Russian Supreme Court. These are a comparatively unusual source of law. Although judicial, they contain abstract rules and operate as if they are statutory provisions. Their purpose is to fill gaps in statutes and to provide the correct interpretation of statutory provisions. They are binding on the lower courts. Decisions of the Russian Constitutional Court are also binding on other courts in respect of the ratio decidendi. The doctrine of stare decisis thus applies. Obiter dicta from that court have strong persuasive force.¹¹

The state courts dealing with commercial litigation are known as “arbitration courts”. This name is confusing because there are also non-state courts of arbitration in the proper sense of the word “arbitration”. Nevertheless, the tradition of calling the state commercial courts “arbitration courts” which became established in Soviet times persists. We shall refer to these as “state arbitration courts”. They can be distinguished from the courts of general jurisdiction.

From 1992 to 2014, the Supreme State Arbitration Court of the Russian Federation was the highest state arbitration court. In contrast, the highest court of general jurisdiction was the Supreme Court of the Russian Federation. In 2014 the former court was abolished. The latter became the supreme court for both the courts of general jurisdiction and the state arbitration courts, but in principle without the doctrine of stare decisis, which the Supreme State Arbitration Court operated with from 2005 to 2014.¹² The binding character of the Ordinances of the Plenum of the Supreme Court, however, like the previously issued Ordinances of the Plenum of the Supreme State Arbitration Court, remains. In relation to acquisitive prescription, the most important is a joint Ordinance of Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme State Arbitration Court of the Russian Federation of 29 April 2010 No 10/22 (“About some questions arising in judicial practice in relation to the resolution of the disputes connected with protection of the right of ownership and other real rights”).¹³

Although our focus in this article is moveable property, Russian law like Roman law generally formulates the rules concerning acquisitive prescription in a common manner for moveable and immoveable property. Therefore, some court decisions in relation to land will also be mentioned. Inevitably, as in other legal systems, there are more of these than decisions on moveable property.