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RUS
UKR
DonNTU
Master's
portal
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 Polii Danylo
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Abstract 2 Purpose and objectives of the study 3 Review of the historical stages of development of land relations in Ukraine. 4 Legal issues of land adjudication and jurisdiction of cases by the courts. |
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The urgency of research problems of judicial review of land disputes caused by the annual increase in cases arising in the resolution of land disputes. The purpose of the work. Review and analysis of miscarriages of land disputes. Problem. 1. Analyze the structure and allocate land adjudication errors. 2. Consider the historical stages of development of land relations in Ukraine. 3. Identify gaps and shortcomings in Ukrainian legislation regulating the judicial resolution of land disputes. 4. Perform the classification of land disputes. 5. Create a database that allows the court to structure the problems and mistakes made in addressing certain types of disputes. The study of miscarriages of justice in land disputes is impossible without understanding of the stages in the development of land relations in Ukraine, in particular, land disputes. From ancient times until the IX century land disputes didn’t exist at all. There was a large number of undeveloped land and the lack of private ownership of the land. [1] The primary source of formation of land ownership can be Russian Pravda - a code of laws of Kiev Rus. Despite the fact that the guarantees of private ownership were not established, when property disputes were regulated, a land began projecting as one of the main objects of property rights. [2] Basic arguments at that time were disputes about breaches of property title to land. From the second half of XIV century until 1991 the legal status of Ukrainian lands was determined by laws of the countries that dominate over the territory of modern Ukraine. Since the mid XIV century to the mid-50s of the XVII century the large part of Ukraine was ruled by the Polish-Lithuanian Duchy. According to the Polish-Lithuanian legislation there were several types of courts in Ukraine and an admissibility of cases was determined by the owner of the land. When Polish-Lithuanian Commonwealth was created the structure of a land tenure in Ukraine has been changed in favor of large landowners. Small and medium landowners were practically pushed out. Due to the fact that large landowners were in public service - all the land disputes of the period were resolved in their favor. The process of entering of Ukraine into the Russian protectorate was marked by an active redistribution of land Property rights, land survey, protection of rights of using the land were established by «General inquest about the property" (1729-1730 AD), as well as code 'Rights, due to which the Little Russian people are at law» In particular «General inquest about the property " established six categories of land, where disputable lands were included in a separate category. [3] There was an increase in land disputes because of general survey, which was initiated in 1754, in particular - the separation of land disputes. They were resolved by special land-courts. [4] After the reform in 1861 there was an attempt to reform the system of resolving of land disputes. The first instance to resolve disputes was a conciliator. "Regulations about the provincial and district offices for Peasant cases’' regulated: the appointment of arbitrators for the post, competence, dispute-resolution procedure and its appeal. The conciliators were appointed from the nobility, and this fact did not encourage farmers to trust the first instance, and they believed that conciliators protected the interests of landowners. It was possible to appeal the decision of the conciliator in the second instance - the county conventions, where you could also confirm charters on the land. The third and last instance of appeal was the provincial for Peasant cases presence. [5] Stage of the statehood in 1917-1920 was characterized by instability of power in Ukraine, and land disputes were resolved under the laws of the Central Council, the Directory. The victory of the Soviet regime marked a fundamentally new stage of land possession. During the NEP, the legal regulation of land dispute resolution was made by Soviet law. Soviet policy concerning the land was secured by the Land Code of the USSR, adopted in 1922,and its provisions were detailed in particular by the Law “The order of land adjudication" of 24 May 1922. According to the law, land courts- land commissions were established. Resolution of land disputes was made in the township, county, provincial land committees. Intervention in these disputes, or the resolution by other structures was eliminated. Control of land commissions was made by a special Board of the Supreme Control in land disputes. In fact, land commissions had the functions of special judiciary structures with administrative functions. These bodies investigated all cases without exception. [6] A course on general collectivization and adopted in 1928, "General Principles of a land use and a land tenure " helped the development of new social relations in the village. This influenced the fact that in 1930 the land commissions disappeared. The liquidation of land commissions helped the division of land disputes to those which were addressed to the courts, and those that were resolved administratively. Creating of new district, provincial, regional and national land commissions was intended to ensure a sustainable land use and land protection. The rules and terms of land disputes were also clearly stated. The main difference between the new land commissions and those which were in the 1921-1930 years was that new commissions were intended not only in resolving of land disputes, but also in control of using of farm lands. However, with the expansion of the administrative jurisdiction which allow the land disputes, new commissions were abolished in 1939. Land Code of the USSR in 1970 showed the detailed procedure of administrative decision in land disputes. Political processes in the late 80s caused the transition to new forms of land tenure., A new version of Basic Law of the USSR and Union Republics about the land which was adopted in 1990 fixed the new provisions. For example, the exclusive state ownership on the land was abolished, the private property was declared, the land could be given in a paid rental. Also there was established that property disputes which were related to the land could be settled by the court or the state arbitration. When the Soviet Union broke up and Ukraine became independent, land relations had radical changes. The promulgation of a land reform, the promulgation of market relations in a land ownership has created the necessity of a new way of construction of the vertical of the bodies which investigate land disputes Table 3.1 - A brief historical overview of the stages of development of land relations in Ukraine.
To date, the scientific literature, there are several different definitions of the dispute as a legal conflict. Their opinions about the language expressed by such scholars and academicians, as Gurevsky V., Reshetnikov VI, Ikonitskaya IO, BV Erofeev The most accurate and current definition is this: land disputes - a special kind of legal relationship, based on the subjects of controversy are manifested in the creation, implementation, modification or termination of land rights, protection (defense), in connection with the violation of rights and legitimate interests (or recognition) of land owners, land users, including tenants of land and other subjects of land relations. Most land disputes resolved in court by the economic or administrative courts, due to the norms of Ukrainian legislation. The problems of judicial review of land disputes can be referred to courts jurisdiction of cases. Resolution of the Plenum of the APU is number 2 on 19/3/10 (which significantly altered the decree "On the practice of courts of the land law in civil cases» № 7 of 16.04.2010 was an attempt to delineate the jurisdiction of courts to review the issue of land disputes. Based on the regulations, we can distinguish the following jurisdiction:
Table 4.1 - Jurisdiction of Land Disputes
It should be noted that the decision of land disputes was removed from the jurisdiction of the arbitration courts. Such a radical measure was due to the numerous abuses of arbitration in disputes. Using the gaps in legislation and that the decision not to appeal against non-state court in the appellate and cassation instances, courts of arbitration schemes used in the raid as a tool for "legalization" of illegal contracts for the alienation of agricultural land, facilities and unauthorized construction in progress. In addition, quite often there were cases of adoption of decisions by arbitral tribunals in violation of the rights of persons who did not participate in the arbitration pending. Also, the problems of legal relationships can be attributed the problems faced by the judge in the consideration of land disputes, namely the lack of practice of resolving land disputes, lack of competence in the field of land law, incomplete and unresolved land laws, as well as low legal culture of Ukrainian society. 5 Structure of court cases dealt with in 2006-2008 The relevance of this study is due to the annual increase in the number of court cases arising from disputes in the sphere of land relations. For example, during 2008 examined 5237 cases, which is 14% more than in 2007 (4482 cases), their number, compared with 2006 (4063 cases), also increased by 10%.
Picture 5.1 - The sum of court disputes over land
Structure of the cases is as follows: • the provision of land for use, including rent, -4440; • The unauthorized occupation of land - 3469; • the purchase and sale of ownership of land - 867; • the termination of rights and withdrawal of land plots - 990; • the establishment of a land easement - 125; • the building of state-owned land - 66; • land use security zones - 54; • to protect the rights of foreign investors - 7; • the disposal of land on which there are objects to be privatized - 21.
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