Requisition as a ground for termination of property rights under conditions of martial law

Abstract

The article is devoted to the study of the peculiarities of requisition under conditions of martial law. It is emphasized that despite the principle of inviolability of property rights, the possibility of forced alienation of property rights is enshrined at the legislative level.
 It was established that in order to determine the legality of interference with the right of private property through requisition, it is necessary to take into account the criteria of the three-fold test: the legality of the interference, public necessity and proportionality.
 The position of scientists who claim that the basis of requisition under martial law is the legal structure is supported. On the basis of the analysis of the legislative provisions, the main features inherent in requisitions are identified: is aimed at satisfying public interests; is carried out under the condition of occurrence or probability of occurrence of extraordinary circumstances; is conducted administratively, not judicially; a special entity authorized to make a decision on forced alienation; is the basis for the emergence of the right of state ownership and the termination of the right of private ownership; has a compensatory nature (preliminary or subsequent reimbursement of the cost); after the cessation of extraordinary circumstances, the former owner has the right to demand the return of requisitioned property, if it is preserved.
 It is emphasized that the requisition must be accompanied by clear documentation: to confirm the fact of forced alienation of property, an act is drawn up, an integral appendix to which is a document containing a conclusion on the value of the property. It was established that the moment of termination of the ownership right of the owner and its occurrence in the state is connected with the date of signing the act of forced alienation of property.
 It has been established that the object of requisition can be both individually determined property and property endowed with ancestral characteristics. Therefore, it is proposed to unify the provisions of the Law of Ukraine "On Transfer, Expropriation or Seizure of Property under the Legal Order of Martial Law or State of Emergency" with the provisions of the Civil Code of Ukraine. It is emphasized that despite the absence of a direct instruction in the Land Code of Ukraine, requisition is one of the reasons for the forced termination of ownership of land plots. It was concluded that requisition is the basis for terminating not only ownership rights, but also real rights to someone else's property.
 It was determined that the owner can challenge the assessment of requisitioned property by filing a claim for reimbursement of its value. The specifics of the return of property that was forcibly alienated against the will of the owner are disclosed.
 It was established that the dispute about the appeal of acts of forced alienation is a matter of private law, since there is an encroachment on a person's property right.