Yearly journal of scientific articles “Pravova derzhava” Volume 33 (2022), 346-359 p.
DOI: 10.33663/1563-3349-2022-33-346-359
Kulynych Pavlo. Legitimate land interests and prospects of their implementation in the conditions of digitalization of land relations
The article investigates the theoretical issues of implementation of legitimate land interests in the conditions of digitalization of land relations in Ukraine. The idea of introducing a category of interest in jurisprudence belongs to the prominent German lawyer Rudolf von Yering. Exploring the laws of law as a regulator of social relations in the late nineteenth century, he drew attention to the marked infl uence of public interests on its development. Rudolf von Yeering found that as society’s interests change, so does its rights.
Modern legal doctrine is based on that implementation of the law is carried out both through the subjective rights of the parties to the relationship, and through their legitimate interests. Therefore, it has become quite natural to try to use theoretical developments on the legal nature of legitimate interests as an element of the legal status of participants in public relations to meet their needs.
The Constitutional Court of Ukraine has ruled that the notion of «interest protected by law» should be understood as the desire to use specifi c tangible and / or intangible goods, as conditioned by the general content of objective and not directly mediated in subjective law simple legitimate permission, which is independent of subject to judicial protection and other means of legal protection in order to meet individual and collective needs that do not contradict the Constitution and laws of Ukraine, public interests, justice, fairness, reasonableness and reasonableness and other common law principles.
So legitimate land interests as a legal phenomenon arise in the fi eld of land, environmental and some other relations governed by law. Only after the extension of legal norms to a certain range of land or other related social relations, a person as a participant in such relations may have legitimate land interests.
In author’s opinion, an important legal source of a person’s legitimate interests in the fi eld of land relations is the acquisition of property rights and other land rights, as well as environmental rights (favorable environment, etc.), which cause a conscious, socially active person legitimate land interest. (For example, interest in keeping neighboring areas in good agricultural, aesthetic condition, etc.). After all, land use, including agricultural, is increasingly beyond the interests of the subject of ownership or the right to use the land and interferes in those areas of public relations that aff ect the interests of other individuals and society in the face of the state and territorial communities. Therefore, an important stage in the development of legitimate land interests has been the land reform that has started in Ukraine since the early 1990s.
One of its key consequences was the formation of a system of land rights, which is based on the basic property right - property rights.
Unfortunately, the land legislation of Ukraine has not yet formed a clear legal mechanism for the implementation and protection of legitimate land interests. Its absence was especially acute at the fi nal stage of land reform - the opening of the agricultural land market when competition between land rights and legitimate land interests of various subjects of land rights intensifi ed. In such conditions, administratively capable and economically strong subjects of land legal relations, especially large agricultural producers, try to ensure the formation of a legal environment in which their land interests would be dominant.
At the same time, ignoring the legitimate interests of some participants in land relations – peasants – cannot be the basis for appropriate legislation, because the formation of a balanced legal system as a whole and eff ective land law cannot be done by ignoring the legitimate interests of any group of people. In our opinion, such legislative measures should be assessed as legal recourse, not legal progress.
One of the most common legitimate land interests in the land law of Ukraine is a legitimate expectation of a certain land law result (actions, decisions, etc.). A legitimate expectation arises when, as a result of statements or promises made on behalf of a public authority, or as a result of established practice, a person has a reasonable expectation that the public authority will act in this way and not otherwise.
In some cases, the legislative activity of the Parliament of Ukraine may be the object of legitimate expectations of landowners and users.
Deepening the legal regulation of land relations in the context of their digitalization leads to the expansion of the sphere of origin and realization of legitimate land interests. One of the ways to deepen the legal regulation of land law is to increase the legally sensitive features of land as an object of land relations. This increase in these features takes place, when with the help of modern digital technologies new land qualities are identifi ed and recorded as legally signifi cant facts in electronic databases that are processed (summarized, combined, allocated, etc.) using modern digital services (software) including artifi cial intelligence.
Thus, expanding the list and ensuring unlimited access to legally relevant information on the state and dynamics of land creates conditions for the emergence of new land interests, aimed not only at exercising individual land tenure, but also at maintaining land resources in good condition. In particular, the expansion of the sphere of legitimate land interests is conditioned by going beyond the neighborhood, when the object of such interests of the person are only adjacent (neighboring) land plots, and their acquisition of «digital» extraterritoriality.
It should be noted that the expansion of the sphere of realization and protection of legitimate land interests may have certain negative consequences, such as confl ict of interest or «war» of interests. Therefore, to prevent such extremes, it seems appropriate to establish legal safeguards against the abuse of legitimate land interests. One of them may be the establishment of collective protection of such interests by a group of persons or their association in a public organization.
Finally, it is concluded that the digitalization of land relations creates new challenges and opens new opportunities in ensuring the realization of the potential of land law through the mechanism of protection of legitimate land interests. Therefore, society must increase its legal «readiness» for the challenges and opportunities of the era of digitalization of land relations.
References
1. Yerynh R. Ynteres y pravo. Yaroslavl: 1880. S. 11. 2. Subochev V. V. Zakonnûe ynteresû: osnovû teoryy // Hosudarstvo y pravo. 2009. ¹ 5. S. 15-22. S. 19. 3. Tam samo. S. 15. 4. Malko A. V., Subochev V. V. Zakonnûi ynteres y yurydycheskaia obiazannost //Hosudarstvo y pravo. 2007. S. 30-36. S. 30. 5. Shulha M. V. Aktualni problemy pravovoho rehuliuvannia zemelnykh vidnosyn v suchasnykh umovakh: avtoref. dys. … dokt. yuryd. nauk: 12.00.06. Kharkiv, 1998. 37 s. S. 19. 6. Subochev V. V. Zakonnûe ynteresû: osnovû teoryy // Hosudarstvo y pravo. 2009. ¹ 5. S. 15-22. S. 17. 7. Rishennia Konstytutsiinoho sudu Ukrainy u spravi za konstytutsiinym podanniam 50 narodnykh deputativ Ukrainy shchodo ofi tsiinoho tlumachennia okremykh polozhen chastyny pershoi statti 4 Tsyvilnoho protsesualnoho kodeksu Ukrainy (sprava pro okhoroniuvanyi zakonom interes) – sprava ¹ 1-10/2004 vid 1 hrudnia 2004 roku. Ofi tsiinyi visnyk Ukrainy. 2004. ¹ 50. St. 3288.8. Subochev V.V. Zakonnûe ynteresû: osnovû teoryy // Hosudarstvo y pravo. 2009. ¹ 5.S. 15-22. S. 18. 9. Lychenko I.O. Vzaiemozviazok zakonnykh interesiv hromadian u sferi vlasnosti // Naukovyi visnyk Chernivetskoho universytetu. 2011. Vypusk 559. Pravoznavstvo. S. 66-70. S. 66. 10. Malko A., Subochev V. Zakonnûe ynteresû kak pravovaia katehoryia.SPb.: Press, 2004. 351 s. S. 29. 11. Venediktova I. Realizatsiia okhoroniuvanykh zakonom interesiv u dohovirnykh pravovidnosynakh // Pravo Ukrainy. 2012. ¹ 9. S. 78-84. S. 83-84. 12. Moroz H. V. Konstytutsiino-pravova ta doktrynalna model publichnoi vlasnosti na pryrodni resursy. Aktualni problemy vdoskonalennia chynnoho zakonodavstva Ukrainy.2016. Vyp. 42. S. 119–128. S. 124. 13. Biloholovyi Ya. Pravomirni ochikuvannia v ukrainskii sudovii praktytsi shchodo zemelnykh sporiv // Zemlevporiadnyi visnyk. 2018. ¹ 11. S. 40-42. S. 40. 14. Kovalenko T. O. Praktyka Yevropeiskoho sudu z prav liudyny yak dzherelo zemelnoho prava Ukrainy // Iurydychna Ukraina. 2016. ¹ 11-12. S. 82-87. S. 84. 15. Sprava «Zelenchuk i Tsytsiura proty Ukrainy» (Zaiavy ¹ 846/16 ta ¹ 1075/16). Ofi tsiinyi visnyk Ukrainy. 2018. ¹ 73. St. 2465.
<< Back
