THE INFLUENCE OF ROMAN LAW AND THE HISTORICAL DEVELOPMENT OF THE PROPERTY INSTITUTE IN THE BALKAN COUNTRIES Assist. prof. Berat Aqifi, Ph.D. University of Tetovo, Macedonia Teaching Assistant Ardian Emini University Sts. Cyril and Methodius, Skopje, Macedonia INTRODUCTION Throughout historical formations, property has been a subject of study by historians, philosophers, economists, lawyers and sociologists who have contributed to its development and explanation. Consequently, there are two general concepts of ownership according to which it is a relationship between man and things, and according to the latter it is assumed that man the thing, represents only an external manifestation, whereas the essence is to be sought in the relationship between mankind, and on the occasion of items. Civil Reconciliation legal science when the disposition and use of goods as possessing power belong to an entity in this case is ownership, as the main and real right, and if an entity belongs to only one of the powers as a whole or in its part, then it is the other real right. 1 According to Jean Carbonie: Ownership is the right to enjoy and destroy things in the most absolute way. 2 Beside this, it can be said that ownership from a legal point of view constitutes a set of legal norms that regulate acquisition. Both together constitute the term of the property. Ownership as a real right belongs to subjective-absolute rights, and governed by imperative norms. 3 According to Professor Rodna Zhivkoska, the right to property represents the fullest possession of goods which the holder gives full power of the integral thing, while other real rights constitute forms of government and the holder only give partial authority over article. 1 2 3 ЖИВКОВСКА, Р. Стварно право. Книга I. Европа 92, 2005, стр. 21. КАРБОНИЕ, Ж. Граѓанско право. Скопје, Т2/Арс Ламина-публикации, 2014, стр. 1640. ALIU, A. E drejta sendore(pronësia, Prishtinë, 2006, faqe. 80. http://iusromanum.eu Страница 1 от 14
1. HISTORICAL DEVELOPMENT OF THE PROPERTY RIGHTS 1.1. Historical development of property right in Roman law 1.1.1. The right of ownership in the old civil law Roman history as an ancient and modern world provides an opportunity to monitor the development and change of society, change of law, and of course constituting an essential part of property law. As a result of the low level of production tools, the important community, people can not survive if they were just a part of the natural phenomena. So when they could independently cultivate the land, they were forced to join or live and work in larger groups, so it was not the social ownership of the means of production. Roman history as an ancient and modern world provides an opportunity to monitor the development and change of society, change of law, and of course constituting an essential part of property law. As a result of the low level of production tools, the important community, people can not survive if they were just a part of the natural phenomena. So when they could independently cultivate the land, they were forced to join or live and work in larger groups, so it was not the social ownership of the means of production. Ownership is changing the relationship between people, where are the interrelated interests of legal persons, according to the old legal institution, which occurred with the emergence of the law. 4 In the view of the social theorist Friedrich Engels, at that time, a natural division of labor between men and women was realized, so that man's duties were to engage in hunting and fishing to secure living, vehicle development, combat etc. while the woman was the manager at home. So what they have produced and used together made them create common ownership, such as home, tools, kindergarten etc. During this period, the country was again given to Genson, individuals or families, but it was decided only that it was not in their possession. The early ownership of the Romans develops gradually, but it is characteristic that evolution is uneven for different types of objects, movable and immovable objects. The Romans were the first to give the title and character to the Institute of Law, and on this occasion they created two concepts: the domini- 4 ALIU, A. E drejta sendore. Prishtinë, 2014, faqe. 92. http://iusromanum.eu Страница 2 от 14
um i proprietas. 5 According to the theorists, in the early existence of the Roman tribal communities there was only the common property, which was all absorbed, but with the development of this society, population growth and improvement of agricultural techniques appear the interest of living in the smaller communities with the dominance of Pater family members, and thus leads to the appearance of private property. Therefore, we emphasize that the beginning of Rome by the law of 12 tables 6 was a continuous process of genetic transformation of ownership in a family, and then privately owned. In the terms report, the bill of 12 tables can be said to be the same, the notion of property right is not legally standardized and so it is time to spend the centuries doing their work on conceived ideas and ambiguous notions to establish the rights of the institute. However, we must emphasize its importance to the Romans, as for the first time private property appears to exclude social and family property. It is also important that the exchange is normalized, manipulation, which is one of the basic ways of gaining ownership in old civil law. Even then, ownership was protected by rei vindicatio and actio negatoria. 7 1.1.2. The right to property in Roman classical law In classical Roman law when it comes to ownership, it is known as DOMINIUM and as a general symbol in classical Rome was the private ownership of the slaves and the means of production, and the ownership of slaves in this period was treated as objects that speak (Instrumentum vocal), so as other items could have been bought, sold, exploited and even killed. Another common feature of possession in this period is that ownership is gained from the struggle of one tribe with the other tribe, where the tribe wins the battle becomes the master of the invaded land and the lost tribe is enslaved. The property in the classical social order of Rome has the following characteristics: The total authority over the items (the right to use the object as desired and for the purposes they have chosen); 5 6 7 BILALLI, A. dhe BAHTIRI, B. E drejta romake. Prishtinë, 2015, faqe.280 http://www.harmonius.org/sr/pravni-izvori/pravo-eu/privatnopravo/zakon_12_tablica%20.pdf ПОЛЕНАК-АКИМОВСКА, М. Римското право и развојот на правото на сопственост. Скопје, НИО Студентски збор, 1990. http://iusromanum.eu Страница 3 от 14
Absolute and unlimited right (the owner does not take into account the interests of the community and the individuals); Exclusive right (they have the right to exclude all third parties from influencing their article); elasticity (jus recedentiae right to return back); Property law is treated as a legal authority over the articles, in contrast to the rule that is the physical power over the items; The only and indivisible right (on one object only one subject is entitled to private ownership) During this period, the three types of rights the private owner has on their subject are differentiated: jus utendi (possession, direct use and economic exploitation on the subject of the property right to meet the needs of the owner) jus fruendi (indirect use of the object by collecting the fruits derived from the object) jus abutendi (indirect use of the subject in the sense of his disposition in inter vivos and mortis causa legal transactions). 8 1.1.3. The right to ownership in Roman post-class law The post-roman period is characterized by a large regression in all areas of social life. The Roman state spent the great treasures, it won in the expansion period and the population could not compensate for the wealth that was scattered and scattered without mercy. The chaos that ruled within post-class Rome coincides with the attacks of the outer enemy barbarian invasions. Because of all this, the destruction of the Western Roman Empire in the 5th century is inevitable. With its end, it also marks the end of the slavery, and thus begins to pave the way for the Middle Ages. 9 1.2. The right to ownership in feudalism For the period of feudalism, the existence of feudal wealth is characteristic. The Byzantine period has never been a classic patrimony state as leaders and states that were apparently created then in Europe; Byzantium was an abso- 8 9 Ibidem. Истотака: ПОЛЕНАК-АКИМОВСКА, М. Ibid. http://iusromanum.eu Страница 4 от 14
lute monarchy with a strong bureaucratic and judicial apparatus, with its own army, their laws, with forms ethics and order. It is therefore not included in any of the forms of feudal states of the western-style type; on the other hand, the state and the legal characteristics of the Byzantine state organization suggest a sui generis position in political-juridical and theological-ecclesiastical understanding. 10 Although in property feudal relations is the most important property in land relations that arise in relation to it, it should be noted that there are different types of ownership in feudalism as a result of the existence of different types of feudalism. For example, Byzantine ownership is different from ownership in Western European feudalism. Although in property feudal relations is the most important property in land relations that arise in relation to it, it should be noted that there are different types of ownership in feudalism as a result of the existence of different types of feudalism. For example, Byzantine ownership is different from ownership in Western European feudalism. But in general all have one purpose: the essence of feudalism Church Relations is that feudal Lord owns the means of production but owns half of the output. The feudal possessor can not kill the farmer but he can go along with the land and buy it because the stalk is bound to the earth and follows it is a semicheap producer. In this period there was an individual property of craftsmen and peasants, which was the fruit of personal work. Craftsmen and titles may have been owners of their means of production and gain wealth through personal work. From all this can be concluded that ownership in this period feudalism is much more complicated than what existed during the condition of the Roman slaves. The feudal property generally has the following characteristics: The feudal ownership is based on a natural economy (as opposed to slavery based on a monetary economy of goods) It is a linked, conditional and lifelong property, with various limitations available to the supervisor There is a hierarchical structure. Such placement can be seen from the fact that the overproduction of products is divided between the producer and the 10 http://www.akademik.mk/idejnite-opredelbi-na-justinijanovoto-zakonodavstvo-pravichnostae-najsovrshenata-doblest-megu-lugeto-4/. http://iusromanum.eu Страница 5 от 14
hierarchy of the feudal lords. At the top of the hierarchy the ruler stands and all the feudal landowners depend on one another. 11 1.3. Property Rights in Capitalism In the period of capitalism, a new form of private property is created. The capitalist owns the means of production and labor. But now the employee, unlike bondage or ketone, is not connected to industry or profession. But here freedom is only apparent because of providing the means of living necessary to sell their labor power in capitalism. Despite this kind of property, the private property of craftsmen and peasants is not working. Unlike the first form of property that has a labor-intensive character by capitalists; in the latter case there is a private work property where the owner himself, with the help of his family, or in some cases by renting the manpower, uses the means of production and the things that are in his possession. Thus we can conclude that capitalist property was characteristic of capitalist enterprises and their production of goods, working in private possessions possessing craftsmen and villagers manufacturing small goods. If we compare a worker as a direct producer with a slave or a farmer, he concludes that his formal position is equal to the capitalist who owns the employee, but the employee is obliged to sell their labor force in capitalisms. 12 1.4. The right to property in socialism The injustice that has been made by workers who are fully exploited, misperceived, living in difficult conditions, without any social and economic rights, and creating a huge economic gap between capitalism and socialism where the worker contributes to the penetration of the idea and The injustice that has been made to workers who have been fully exploited, misused, living in difficult conditions, without any social and economic rights, and creating the great economic gap between capitalism and socialism where the worker contributed to the penetration of the idea and strives for equality and only equality. 13 This is in fact the beginning and the fundamental pillars of socialism. Socialism and working class tends to take power in order to create a society in which social ownership domi- 11 12 13 ПОЛЕНАК-АКИМОВСКА, М. Ibid. Ibidem. ЗАФИРОВ, Тоше. Историја на социјалдемократијата, 03.01.2012, http://zafirov.mk//. http://iusromanum.eu Страница 6 от 14
nates the equality and the prohibition of exploitation of workers' work. 14 The main objective of socialism is liberation from economic ties, despite the greatest objective in the life of material interests, solidarity for all people, and there is no person where it can be a means to another person. In the period of socialism, important changes to real rights have been introduced. The country that has had private property in this period has been replaced by socialist property, which, despite now incorporating the use, disposal and management of items on socialist property, as a result of which are presented new property rights such as the right to permanent use, the tenant's right and the like. 15 2. THE RIGHT OF OWNERSHIP IN THE REPUBLIC OF MACEDONIA 2.1. Normative Definition In the legal system of the Balkan countries, with particular emphasis on the Republic of Macedonia, property rights are regulated by: Constitution; Property law and other real rights as (lex generalis); Other special laws regulating some issues related to property rights. 2.1.1. The right of ownership under the constitution of the republic of Macedonia The Constitution of the Republic of Macedonia contains some provisions regarding ownership and the right of inheritance. 16 The right of ownership is regulated by the Constitution of the Republic of Macedonia as the highest act. Moreover, in Art. 8 legal property protection is provided as a fundamental value of the constitutional order of the Republic of Macedonia. In section-chapter dedicated to human rights and freedoms, Articles 30 and 31 of the Constitution guarantees the right to property and inheritance rights, and states that the property creates rights and obligations and should serve the well-being of the individual 14 15 16 ФРОМ, Ерих. За капитализмот и социјализмот. 1984, http://www.time.mk/info/merichfromm/fromm.5. ЖИВКОВСКА, Р. Стверно право. Книга I. Поимот стварно право, ствари, владение. Скопје, Европа 92, 2005. ГЕОРГИЕВСКИ, С. Правци на развитокот на граѓанското право на Република Македонија. УКИМ, 1999. http://iusromanum.eu Страница 7 от 14
and the community. 17 Although not explicitly stated, the wording of the Constitution can be concluded that private ownership is the dominant form of property in the country, while the provisions for the protection of general-purpose goods (public roads, canals) and goods of common interest (resources natural, plants and animals, objects and objects of cultural and historical importance) there is also the presence of public and state property. Although not mentioned in the Constitution, however, in the Republic of Macedonia, they are not in municipal ownership, as permitted under local government and collective ownership (owned by associations, religious communities and political parties) and the Law on Associations and Foundations. 18 2.1.2. The right of ownership under the Law on Property and Other Rights of Right The law on property and other real rights regulates the right of ownership in the Republic of Macedonia, where it is foreseen as a real substantive right. In addition, the law also provides for other limited rights: the right to servitude, the right to commit, the right to a real burden and other real rights (right to long-term lease of construction land and the right to long term lease of agricultural land). 19 3. RIGHT TO IMMOVABLE PROPERTY As we have mentioned before, the law on property and other real rights regulates the right of ownership in the Republic of Macedonia, where it is foreseen as a real substantive right. Despite this law and the law, it provides other limited property rights, including the right to servitude, the right to pledge, the right to a real burden and other real rights (right to long-term lease of land and the right to long term lease of agricultural land). 20 It is important that if property is to be incorporated normatively, it should be included in a public book from which its credibility will be extracted. 17 18 19 20 Устав на Република Македонија. Полициски прирачник Правни изданија. Книга 1. Скопје, Министерство за внатрешни работи на Република Македонија, 2003. КАМБОВСКИ, И. Стварно право авторизирани предавања. Скопје, Флексограф дооел-куманово, 2012. Истотака: КАМБОВСКИ, И. Ibid. Истотака: КАМБОВСКИ, И. Ibid. http://iusromanum.eu Страница 8 от 14
3.1. Receipts and types of ownership of a property in a public register The registration of the title of the property on the basis of legal work is done through the registration in the public register for registration of immovable property or real estate cadastre or otherwise provided for by law. The registration and the manner of registration of immovable property rights are determined by the Law on Surveillance, Cadastre and Registration of Non-Dignity Rights. From the moment the application or the registration document is received in the body holding the public book, the legal effect of the registration will be taken into account. Like (aquirendi modus) or legally-determined acquisition of Nain's title of property is considered registration in the register after it reached it. But if one has acquired real estate at the origin time without writing in the public registry (maintenance, built on each other's land), then the acquirer acquires the right of ownership under the ex lege law, and becomes additional registration in the public registry only in declarative meaning and acts in the former sense. The basic assumptions for obtaining the right of ownership of immovable property on the basis of legal work are: the foreigner has the right to own the immovable property that he / she alienates the new property right is based on a legally valid legal act the property right in the configured way is entered in the public book or is adapted to the other means that the registration has the meaning of the right (modus aquirendi). 21 According to the Law on Real Estate Cadastre, registration types are registration, pre-registration and registration. Starting from the land postulates the title of the book, and the provisions of the General Law on Property and Other Real Rights, of Article 169 of this law, following the law on real estate since 2008, offers three types of registration in the cadastre of real estate: 1. Disbursement, 2. Pre-registration, and 3. Registration. 22 21 22 ГЕЛЕВСКИ, С. Закон за сопственост и други стварни права, со коментар и судска практика. Леге Артис, 2002. ЖИВКОВСКА, Р. dhe ПРЖЕСКА, Т. Коментар на Законот за катастар на недвижности. (Стварно право 3). Скопје, 2013. http://iusromanum.eu Страница 9 от 14
3.1.1. Last registration (intabulatio) Intabulatio is an unconditional, complete and final registration of the appearance and termination of the right to: the right to property, as well as their subdivisions (co-ownership and coownership) other real rights (servitude, the right to real estate mortgage right and under long-term lease of land on land) under conditions and in the manner prescribed by law. 23 3.1.2. Pre-registration (praenotatio) Conditional (praenotatio) is conditional registration, temporary acquisition, transfer, restriction or prohibition of a fixed right whose success depends on whether it will be further justified or not. If legitimate ownership is considered to have been acquired at the time of application for registration of the right in the public register operating ex tunk. 24 After ensuring that there is legal evidence, respectively the conditions for registration, the pre-registration will be canceled and the right of ownership will be canceled and if the opposite situation occurs, the conditions for filing within the six-month pre-registration application are not met, the same will be deleted. In fact, pre-registration is a priority for keeping accounts, provided that the foreseen legal conditions are met. According to the Law on Real Estate Cadastre, property rights and their ownership (joint ownership and joint ownership) of future constructions (buildings, separate part of buildings and common parts of buildings in function of separate parts of buildings) may be prevented when it is in the construction phase. This is done by recording the data for the persons who have the right to build in accordance with the approval of the building and the data on the buildings, special and common parts of buildings taken from the basic project related by the competent authority. If there is any change that occurs during construction with respect to eligible people in construction, base project etc., they will be included in the list of preregistration of the building on the property list. Unregistered construction right will be erased and ownership rights will be recorded upon a request submitted by a competent authority by attaching the licenses for the use license of the building, a geodetic report and proof of payment of the registration fee for the change. 23 24 ЗАКОН за катастар на недвижности. Сл. Весник на Р. Македонија, бр. 55 од 16.04.2013 година, чл.169 и чл.170. ГЕЛЕВСКИ, С. Ibid. http://iusromanum.eu Страница 10 от 14
3.1.3. Recording (adnotatio) Adnotatio is an introduction that is not constitutive but informative. It can be noticed: Bond rights (the contract law mainly for real estate, leasing real estate, leasing and concession of immovable property) Preliminary or temporary immovable (prohibition and restriction) measures affecting immovable property rights The facts affecting immovable property such as custody, non-maturity, deceased person, prolongation of parental right, liquidation, bankruptcy proceedings, management of the joint property of spouses, right to mortgage a right to registered in the ownership of a building and a separate part of a building at a construction stage, legal acts for the circulation of an unregistered right to a building and a separate part of a building at the construction stage and other. 25 3.2. Confidence in the public book and the accuracy of the public record One of the principles on which a public book is based is to trust it. This principle of trust in public records means that what it is written in the public register is considered appropriate and complete, reflecting the situation legal and factual truthfulness, whereas what is written is considered to be non-existent. So those who in good faith (bona fides) relied on the records, not knowing what is written on, it is true it has the right to protection. In this case the buyer's good faith means that he knew or may have known that there is a dispute between the factual situation and the record in public records. The principle of the accuracy of a public book is similar to the principle of trust in the public book, that is, what was said about trust is valid for the accuracy of public records. After all, what is written in the public book is considered true. However, if there is a dispute over what is considered true and recorded in the public book, the record in public records may be reversed as priority is given to material legal status. If an error has been made, it can be challenged by a request for overturn within 3 years of entering the public book. 26 25 26 ЗАКОН за катастар на недвижности, чл.171 и чл.172 и чл.173. ГЕЛЕВСКИ, С. Ibid. http://iusromanum.eu Страница 11 от 14
3.3. Multiple talks on the alienation of the same real estate The law on property and other rights of law, regulated the real realistic situation, the alienator sold the same immovable property to some persons with some legal acts. In this case, the owner of the multiple alienated property shall become the one or the one who in good faith first sought the registration of ownership of the real estate in the public register, provided that all other conditions for the acquisition of the property. Within three years after the registration of the property, the person to whom the alienator also alienated the property and handed over that property may request the deletion of the registration and registration of the immovable property on his behalf to prove that the purchase was not in good faith, that is, knew or could have known that the alienator had separated him and handed it over to the other. 27 Persons whose alienator has alienated immovable property several times, but who have not acquired the right of ownership, have the right to claim compensation for non-execution of the contract, according to the rules of the law on obligatory relations. CONCLUSION Property rights are developed through various forms of human organization of society, since such ownership is always there, only its form changes for a certain historical period. In this context, the property in Macedonia and in the Balkan countries is governed by the Constitution which guarantees the right of ownership, the predominant type of private property, but also the existence of social and state property. The right of ownership in all Balkan states generally regulates in detail the Law on Property and Other Rights of the Right. Roman history since antiquity, but the modern world offers an opportunity to monitor the development of a changing society, change of law, and of course as playing an essential part of the property right. From the outset of Rome, by the law of 12 tables a continuous process of transforming ownership into the gentalnatet into a family, and then privately owned. However, its importance to the Romans is highlighted, as for the first time private property is displayed, that excludes social and family property. 27 КАМБОВСКИ, И. Ibid. http://iusromanum.eu Страница 12 от 14
It is also important that the exchange is normalized, the husband, who is one of the basic ways of gaining ownership in old civil law. Even then, ownership was protected by rei vindicatio and actio negatoria. The right to property in Roman classical law, Roman post Roman law, Feudalism, and capitalism and property rights in socialism, according to which the characteristic of possession in this period varies with its characteristics, characterized by social order in those historical periods. The right to property under the Constitution and the law on property and other real rights until the registration of the property in a public register, which according to the Law on Real Estate Cadastre offers registration types will be the last registration, conditionally and temporary. In the Balkans there are two ways to acquire property rights: the original mode and derivative of the title acquisition of the winner derives from the title of the previous owner, which is a characteristic of the privatization of state-owned construction land. BIBLIOGRAPHY 1. ALIU, A. E drejta sendore (Pronësia). Prishtinë, 2006 2. ALIU, A. E drejta sendore. Prishtinë, 2014 3. BILALLI, A. dhe BAHTIRI, B. E drejta romake. Prishtinë, 2015 4. http://www.akademik.mk/idejnite-opredelbi-na-justinijanovotozakonodavstvo-pravichnosta-e-najsovrshenata-doblest-megu-lugeto-4/ 5. http://www.harmonius.org/sr/pravni-izvori/pravo-eu/privatnopravo/zakon_12_tablica%20.pdfhttp://www.harmonius.org/sr/pravniizvori/pravo-eu/privatno-pravo/zakon_12_tablica%20.pdf 6. https://www.marxists.org/makedonski/m-e/1867/tom1/predgovor1.htm 7. ГЕЛЕВСКИ, С. Закон за сопственост и други стварни права, со коментар и судска практика. Леге Артис, 2002 8. ФРОМ, Ерих. За капитализмот и социјализмот. 1984, http://www.time.mk/info/m-erichfromm/fromm.5 9. ЖИВКОВСКА, Р. Стварно право, Книга I. Поимот стварно право, ствари, владение. Европа 92, 2005 10. ЖИВКОВСКА, Р. dhe ПРЖЕСКА, Т. Коментар на Законот за катастар на недвижности. (Стварно право 3). Скопје, 2013 http://iusromanum.eu Страница 13 от 14
11. ЗАКОН за градење. Службен весник на Република Македониjа, број 130 од 28.10.2009 година 12. ЗАКОН за домување. Службен весник на Република Македонија, број 99 од 05.08.2009 година. Измени и дополнувања, број 57 од 26.04.2010 година 13. ЗАКОН за експропријација. Службен весник на Република Македонија, број 95 од 26.07.2012 година 14. ЗАКОН за катастар на недвижности. Службен весник на Република Македонија, број 55 од 16.04.2013 година 15. ЗАКОН за сопственост и други стварни. Службен весник на Република Македонија, број 18 од 5.03.2001 година 16. КАРБОНИЕ, Ж. Граѓанско право. Т2/Арс Ламина-публикации, Скопје, 2014 17. ПОЛЕНАК-АКИМОВСКА, М. Римското право и развојот на правото на сопственост. Скопје, НИО Студентски збор, 1990 18. ГЕОРГИЕВСКИ, С. Правци на развитокот на граѓанското право на Република Македонија. УКИМ, 1999 19. ЗАФИРОВ, Тоше. Историја на социјалдемократијата, 03.01.2012, http://zafirov.mk// 20. УСТАВ на Република Македонија, Полициски прирачник Правни изданија. Книга 1. Скопје, Министерство за внатрешни работи на Република Македонија, 2003 http://iusromanum.eu Страница 14 от 14