Doctrinal approaches to understanding the place and role of the sign of property separation of an entrepreneurial company in the context of the main provisions of the theory of fiction and the theory of reality of a legal entity as a participant in civil circulation are analyzed. It was concluded that the existence of a significant number of scientific approaches that reveal the essence of individual features of an entrepreneurial company as a legal entity only contribute to the further development of doctries about the legal nature of this legal phenomenon and outline not only the general model of a legal entity, but also its varieties with additional features highlighted. Such a variety is a business partnership, which, as a type of phenomenon in relation to a generic (legal entity), has its own characteristics that do not replace (fully correspond to) the general characteristics of a legal entity. One of these features is property separation, which is recognized as mandatory both by the supporters of the theory of fiction and the supporters of the theory of the real existence of a legal entity as a participant in civil circulation. It is noted that the feature of property separation is the main one for a legal entity, as it allows to ensure the guarantees of its creditors, to limit the possibility of abuse by the participants (founders) of such an organization, who could use the construction of a legal entity for the purpose of evading responsibility. However, this sign is not the only one. The approach based on which the theory of fiction most accurately reveals the property separation feature and its place in the system of features of a legal entity is substantiated, defining it as one of the two key essentially forming features of a legal entity.
The article concludes that property as a special object is a separate thing, a set of things, as well as property rights and obligations. This understanding, despite the existence of certain terminological differences, coincides with its general understanding in the system of legal knowledge of certain countries of the Romano-Germanic legal family, in particular, countries with a pact system of law, and corresponds to the content of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. In the legal literature, it includes any economic benefits, objects of both the material and intangible world, which are in the state of appropriation of a person. At the same time, the word “property”, as used in Article 1 of Protocol 1 to the Convention, refers to an object of economic value. In this sense, property is an economic category and synonymous with the economic concept of “ownership”. This is also indicated by the use of such concepts as “assets”, “funds”, “profit”, “goodwill”, “accumulated intangible assets of the enterprise”, “property of economic value” in the ECHR judgments to describe the category of property. From the legal point of view, it is justified that only things, collections of things, and animals are considered by the legislation and doctrine of the countries of the continental legal system as objects of property rights or other property rights. They are the only ones empowered with a legal regime of things. Such types of benefits as property rights (legal claims) and obligations cannot be owned by a person on the basis of property rights. They may have the legal regime of objects of intellectual property relations, obligations, corporate relations, but not ownership or other property rights. It has been established that property rights are not the only means of securing the assets of business entities. They may also be owned by the latter on the basis of other rights (e.g., obligatory rights). It has been proved that in this case, a business company is not an owner, but, for example, a lessee (tenant), a user under a loan agreement, a mortgage agreement as a mortgagor, etc.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
hi@scite.ai
10624 S. Eastern Ave., Ste. A-614
Henderson, NV 89052, USA
Copyright © 2024 scite LLC. All rights reserved.
Made with 💙 for researchers
Part of the Research Solutions Family.