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Section 1. Agrarian law
https://doi.org/10.29013/EJLPS-20-1-3-9
Yuliia Yuriivna Bakay, PhD in Law, Assistant of the Department of Land and Agrarian Law of the Yaroslav Mydryi National Law University E-mail: yuliabakay85@gmail.com
AS FOR THE OWNERSHIP RIGHT TO THE LAND OF THE UKRAINIAN PEOPLE
Abstract. The scientific approaches to determining the content of the legal structure of land ownership of the Ukrainian people have been analysed. It is proposed to consider the ownership right to the land of the Ukrainian people as a kind of public property, consisting in the domination of the territory bounded by the borders of the state for the purpose of satisfying the interests of the whole Ukrainian society, exercised directly by the Ukrainian people or bodies of state power or local self-government on its behalf.
Keywords: land ownership, Ukrainian people, referendum, land, and jurisdiction.
By virtue of the adoption of the Land Code of shelf, exclusive (maritime) economic zone are ob-
Ukraine on 25 October 2001, a moratorium on the alienation of agricultural land was introduced. It was a temporary measure that had been going on for all this time and would remain in force until the agricultural land circulation law came into force.
Due to the land reform and the adoption of Draft Law No. 2178-10 'On Amendments to Some Legislative Acts of Ukraine on the Circulation ofAgricultural Lands' [1] by the Verkhovna Rada of Ukraine on 13 November 2019, the interpretation of the constitutionally enshrined concept of the ownership right to the Ukrainian people's land has become relevant.
Pursuant to Article 13 of the Constitution of Ukraine, land, its subsoil, atmospheric air, water and other natural resources that are within the territory of Ukraine, the natural resources of its continental
jects of property of the Ukrainian people. The aforementioned constitutional provision raises a number of theoretical issues: what is the ownership right to the land of the Ukrainian people; what competences it includes; which means the concept of land as an object of ownership of the Ukrainian people; whether the Ukrainian people can be the entity of ownership in general and the entity of ownership right to the land, in particular; how are the powers of the Ukrainian people as the entity of the ownership right to the land different from those of the state authorities and local self-government bodies entitled to act for and on behalf of the Ukrainian people as entity of the ownership right to the land.
The aforesaid issues have been repeatedly addressed by scholars in various fields of law. The
positions of scientists on determining the content and essence of the ownership right to the land of the Ukrainian people should be grouped as follows.
The first position is to completely deny the ownership right to the land of the Ukrainian people.
Therefore, in the opinion of Professor M. V. Shul-ha the Ukrainian people as the owner of the land can be considered only in social and political aspect, and in the legal sense it is unlikely that the people own the specified natural resource [2, P. 79].
By denying the concept of the right to land of the Ukrainian people P.F. Kulynych stated heretofore that the constitution of any state, including the Constitution of Ukraine, is not only a legal document, but also a political and legal one that contains not only legal regulations, but also provisions of political or political-legal nature, that is why the constitutional the "land - property of the Ukrainian people" provision should not be qualified as a monopoly on land property, its exclusive ownership of a single entity, but as a declaration by the state of the intention to impose certain requirements (restrictions) on the acquisition of the Ukrainian people and implementation of land ownership by individuals and legal entities [3, P. 67]. According to the scientist, the aforementioned article does not regulate the question of land ownership and the best way to resolve the controversy over the property right is to amend the Fundamental Law on Removal of Article 13.
Professor V. M. Yermolenko also criticises the model of "ownership right to the land of the Ukrainian people. In his opinion people is an abstract concept, and in order to determine ownership, the land needs to be clearly defined by its entity. It is due to the fact that from a legal point of view, the entity of ownership must be clearly personified. Currently, the property of the Ukrainian people lies more in the moral plane, but at the same time it must be translated into legal and economic [4].
V. O. Kobylianskyi agrees with the aforesaid position. From his point of view in Article 13 of the Constitution of Ukraine, land is referred to as an
object of ownership of the people. However, the right of ownership arises not only on the land, but only on the land plot, by virtue of the fact that under Article 79 of the Land Code of Ukraine, it is the object of the property right. As the property right can be registered only on the land plot and not on the land, the conclusion is that Article 13 of the Constitution of Ukraine is purely declarative [4].
A. M. Miroshnychenko refers Article 13 ofthe Fundamental Law to unsuccessful provisions. However, he states that the provisions provided for by the said article cannot be interpreted in relation to property rights in the same way that at the level of individuals and legal entities, territorial communities, the state is also the Ukrainian people as the entity of property rights. In his opinion, the ownership right to the land of the Ukrainian people is a general concept in relation to the property rights of the state and territorial communities - public-legal types ofproperty rights. The property rights of the Ukrainian people can be represented either in the form of state or in the form of communal property, which does not in any way exclude the possibility of existence of property rights of citizens and legal entities, since part 1 ofArticle 13 ofthe Constitution of Ukraine does not use the formulation "object of exclusive property", instead, in Article 14 directly providing for the possibility of acquisition of land in the property of legal entities and individuals [5].
I. V. Zub considers the concept of ownership of the Ukrainian people constitutional and legal, which reflects the sovereignty of the state and the people of Ukraine over natural resources in the territory under the jurisdiction of the state of Ukraine. Therefore, this concept cannot be used directly in property relations [6].
In my opinion, it is inappropriate to consider the constitutional norm on the ownership right to the land of the Ukrainian people from the standpoint of classical civil theory. By strongly denying this construction, justifying the obligatory ownership of the land on the ownership of only one personified entity, scientists proceed from the interpretation of the es-
sence of the property right "one entity of property right - one object of ownership", do not take into account public and legal nature legal relations that develop around the ownership right to the land of the Ukrainian people. In addition, it is inappropriate to divide the provisions of the Constitution of Ukraine into normative and declarative ones by virtue of the fact that all provisions of the Fundamental Law have direct effect and are equally normative.
As for the second position of scientists, they should include authors who do not distinguish the Ukrainian people as an independent entity of ownership right to the land, but identify it with such an entity as the state. For example, civilians propose to recognize the Ukrainian people, along with the state, as an entity of state ownership and to consider it not as an independent form of property but as a form of the state ownership [7, p. 530-536].
At the same time S. O. Ivanov, I. V. Snitsar by studying the nature of the forms of property defined in the provisions of the Constitution of Ukraine, notes that if the state is an entity of the state ownership, territorial communities are entities of communal property, then what form of ownership belongs to such an entity of property rights as the Ukrainian people? Obviously, the property right of the Ukrainian people is not an independent form of property and is, by its nature, state property, the entity of which is the state of Ukraine. The scientists hereby conclude that the provisions enshrined in Article 318 of the Civil Code of Ukraine regarding the determination of the Ukrainian people as the entity of property rights is declaratory. Such a construction does not have a meaningful civil legal burden, since the real mechanisms for exercising the aforesaid right have not been developed in the classical civility sense [8, p. 122-123].
We believe that identifying the Ukrainian people as the entity of ownership right to the land and the state is not correct enough. The opinion ofV. V Nosik, who proposed a two-tier structure of the ownership right to the land, under which the property rights of
the state, legal entities and citizens are derived from the property rights of the Ukrainian people, the entities of ownership right to the land at the highest level are citizens of Ukraine of all nationalities as Ukrainian people, and at the lower level entities of the property right are individuals and legal entities, the state, territorial communities as legal entities of private law [9, P. 223]. Scientific and legal approach of V. I. Semchyk on the relationship between the ownership right to the land of the Ukrainian people and the right of state ownership right to the land also proves that these are not identical legal categories. From his point ofview, the Ukrainian people are the entity of ownership of all lands constituting the territory of a country delimited by a border from other states, to which the sovereignty of Ukraine extends, irrespective of the forms of ownership right to the land existing in the territory ofUkraine [10, P. 565].
The third position of scientists is to recognise the Ukrainian people as a full and independent entity of ownership right to the land.
In particular, V. I. Andreytsev distinguishes the property right of the Ukrainian people as an independent form of ownership along with the right of state, communal and private property (individuals and legal entities). The scientist considers the property of the Ukrainian people in the sovereignty-territorial aspect, as the exclusive owner, who has authority in particular to change the boundaries and, accordingly, the land as a territorial-spatial basis of the functioning of the state or the exercise of this power by legalised representative and other authorities of the state in accordance with the functions, delegated to them by the Constitution of Ukraine or a special law. The aforesaid natural resources form the material basis of Ukraine's sovereignty and ensure its social and economic development [11, P. 22].
Article 14 of the Constitution of Ukraine enshrined the provisions that proclaimed land the main national wealth, which is under the special protection of the state [12]. However, the Declaration on State Sovereignty of Ukraine stated that it is the people
of Ukraine who have the exclusive right to own, use and dispose of national wealth [13]. The importance of such an order determines the importance of land not only as a natural heritage of present and future generations of the Ukrainian people, but also that land is the main means of production in agriculture, the basis of national wealth, since the creation of gross domestic product of the state is primarily based on the use of this natural resource potential of land within the borders of Ukraine.
A. I. Khalota recognises the Ukrainian people as an independent entity of property rights, which, in the forms and limits defined by the Fundamental Law of Ukraine, may directly exercise the ownership, use and disposal of land, or may be exercised by state and the local authorities on its behalf [14, P. 206].
The authority of the Ukrainian people to own land is absolute and is unchanged and permanent. Private ownership right to the land by individual entities does not imply a loss of ownership of the land by the Ukrainian people, since the right of ownership of the people and the right of ownership ofan individual are different in economic sense and the legal nature ofthe phenomenon. At the same time, the Ukrainian people own the land only under the title ofownership, and in this aspect the ownership of the Ukrainian people is exclusive [14, P. 206]. It means that the power of the Ukrainian people to own land cannot be limited by national or international legal acts.
In addition to the above, the exclusive right of the Ukrainian people to possession should be combined with the accessibility of every citizen to the natural resource. At the same time, public authorities should ensure the implementation of the social function of ownership of the Ukrainian people by adopting laws that would restrict restrictions on the acquisition of private land by individuals and legal entities, prevented the formation of latifundia or land fragmentation.
An important element in the content of ownership right to the land of the Ukrainian people is the right to use, the essence ofwhich is revealed through the economic nature of ownership right to the land.
It is the obligations of every member of society to comply with the requirements and rules of land use in order to ensure their efficiency and rationality in the operation thereof.
The competence of the Ukrainian people to dispose of land, which is conditioned by objective and subjective factors, has a special meaning. Although the Ukrainian people are entity to public law, they are not directly entity to property rights in civil relations. On behalf of the people, the rights of the owner are exercised by state authorities and local self-government. In view of the special aspect of the legal status of the Ukrainian people as entities of property rights, only the people can dispose, for example, of land as the territory of Ukraine by transferring part of the land to other states [14, P. 207].
By agreeing with the aforesaid position, we see the possibility of applying to the ownership right to the land of the Ukrainian people a triad of ownership rights - ownership, use, and disposal. However, the peculiarity of the exercise of the powers of the Ukrainian people is that the people exercise powers either directly in the form of a referendum, or the bodies of state power or local self-government exercise separate powers on behalf of the Ukrainian people.
As of today, the issue of introduction of market circulation of agricultural lands is an urgent one for our country. In view of the strategic nature of this natural resource and its enormous social importance, the lifting of the moratorium on the sale of agricultural land should be decided directly by the Ukrainian people, as the titular land owner in Ukraine in the All-Ukrainian referendum.
The All-Ukrainian Referendum, according to the Law of Ukraine 'On the All-Ukrainian Referendum' dated 6 November 2012 No. 5475-VI, is a form of unchallenged democracy in Ukraine, a way of exercising power directly by the Ukrainian people, which is to make (approve) citizens of Ukraine with decisions issues of national importance by secret ballot in the manner provided for by the law [15]. However, on 26 April 2018, the Constitutional Court of
Ukraine ruled that the above Law of Ukraine was declared unconstitutional and on the basis whereof the Law was repealed [16].
Therefore, the decision of the Constitutional Court of Ukraine has cancelled the possibility of holding referendums in Ukraine for the purpose of expressing the will of the people and legitimising the power decisions through the institute of direct democracy. There is a gap in the laws. Regardless of the regulations of the Constitution of Ukraine, which establish the possibility of holding referenda, there is no legislative regulation. That is why the legislative body is faced with the urgent question of drafting and adopting a new act that will be constitutional, democratic, meet European standards, and determine the legal basis, organization and procedure of holding referenda - a form of direct democracy, a way of exercising power directly by the Ukrainian people as a holder of sovereignty and sole source of power in Ukraine.
For the purpose of eliminating the gaps in the laws and regulate legal relations related to the initiation, appointment (proclamation), preparation and holding of an all-Ukrainian referendum under the provisions provided for by the Constitution of Ukraine, taking into account the practice of holding national referendums in Ukraine, creating a real possibility for the implementation of all resolutions, was drafted and submitted to the Verkhovna Rada of Ukraine the draft Law of Ukraine 'On the All-Ukrainian Referendum' dated 26 September 2019 No. 2182 [17], which is under consideration and revision. In view of the lack of legislative regulation of the will of the people to express their will on the issue of lifting the moratorium on the circulation of agricultural land, the state of the state under antiterrorist operation in the east of Ukraine, the abolition of the moratorium on the sale of land can lead to speculation of the power holders.
Despite the fact that the Ukrainian people are constitutionally recognized as the entity of ownership right to the land, the exercise of this right, ac-
cording to Article 14 of the Constitution of Ukraine, relies on the relevant bodies of state power and local self-government, which should act in the interests of the whole society. State and local self-government bodies exercise the rights of the landowner on behalf of the Ukrainian people, while maintaining the permanence and immutability of property rights within the territory of Ukraine. The powers of the aforesaid authorities are defined by the Constitution of Ukraine and other regulatory acts, but in general, their powers in relation to land concern only the exercise of the right to manage the said property.
The work of Professor V. V. Nosik, which most fully discloses the content of the powers and proves that the Ukrainian people is an independent entity of ownership right to the land that owns, uses and disposes of land within the territory of Ukraine. The author notes that the content of each of the powers has its own specificity, due to the public-legal nature of the ownership of the people on land. In particular, the right of ownership is based on the natural law of the Ukrainian nation on its territory and is absolute, unchanged, permanent, determining the legal regime of other natural resources; it cannot be restricted by any laws of Ukraine and at the same time it must be combined with the accessibility of every citizen to the right to use the land [9, p. 225-227].
Summarising the foregoing, we hereby finds as follows: The Ukrainian people are an independent entity of ownership right to the land, exercising their powers directly through a referendum or indirectly through state or local government bodies, which are obliged to act on behalf of the Ukrainian people on the basis of within the limits of powers and in the manner provided by the Constitution and regulations of Ukraine. Land as an object of property rights of the Ukrainian people has a special legal regime, but at the legislative level this concept has not found its foothold. Therefore, land as an object of property rights of the Ukrainian people should be considered as a natural resource, territorially limited by the borders of Ukraine, recognized as the main
national wealth, which is under special protection of the state, is the material basis of sovereignty and economic basis of independence of the state.
Furthermore, the constitutional consolidation of ownership right to the land of the Ukrainian people, as a legal phenomenon, should receive the proper
constitutional and legal mechanism for its implementation, which would include a system of guarantees of the interests of the owner by virtue of the fact that today we see the separation of constitutional regulations from the real institution of the ownership right to the land of the Ukrainian people.
References:
1. Draft Law of Ukraine 'On Amendments to Certain Legislative Acts of Ukraine on the Circulation of Agricultural Lands'. Dated 13.11.2019. - No. 2178-10. [Electronic resource]. - Access mode: URL:http:// w1.c1.rada.gov.ua/pls/zweb2/ webproc4_1?pf3511=67059
2. Shulha M. V. Relevant Legal Problems of Land Relations in Modern Conditions / M. V. Shulha. - Kharkiv: Consum, 1998. - 224 p.
3. Kulynych P. F. Perspectives on the Development of the Land Laws of Ukraine / P.F. Kulynych // The Legal System of Ukraine: History, State and Prospects: in 5 volumes - Kharkiv: Law, 2008. - Vo. 4. Methodological Foundations for the Development of Environmental, Land, Agrarian and Commercial Law. 2008. - P. 86-125.
4. Constitutional provisions on land ownership need improvement: Roundtable of 12.11.2019. [Electronic resource] / Access mode: URL: http://nubip.edu.ua/ node/67178
5. Miroshnychenko A. M. Scientific and Practical Commentary on the Land Code of Ukraine / A. M. Miroshnychenko, R. I. Marusenko. - 5th ed., as amended and supplemented - Kiev: Allerta, 2013. - 544 p. [Electronic resource]. - Access mode:URL: http://pidruchniki.com/1589031557764/pravo/ pravo_vlasnosti_zemlyu_ ukrayinskogo_narodu
6. Zub I. V. Opinion on the draft Law of Ukraine 'On Public Property', submitted by the People's Deputy of Ukraine M. M. Papiiev. - 9 July, 2009. (Reg. No. 4418) [Electronic resource]. - Access mode: URL: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511 = 35134
7. Scientific and Practical Commentary of the Civil Code of Ukraine: in 2 volumes - 5th edition, as amended and revised / edited O. V. Dzery, N. S. Kuznietsova, V. V. Lutsia. - Kiev: Yurinkom Inter, 2013. - Vol. 1. - 832 p.
8. Ivanov S. O., Snitsar I. V. Special Aspects of the Exercise of the Property Rights of the Ukrainian People by the State Authorities / Protection of the property rights of the Ukrainian people: domestic realities and foreign experience for Ukraine: Proceedings of the First International Scientific and Practical Conference (22 September 2016). - Kiev: National Academy of Public Prosecutor of Ukraine, 2016. - 226 p.
9. Nosik V. S. Ownership Right to the Land of the Ukrainian People: Monograph. / V. S. Nosik. - Kiev: Yurinkom Inter, 2006. - 544 p.
10. Semchyk V. I. Ukrainian People as the Entity of the Ownership Right to the Land // Bulletin of the Academy of Legal Sciences of Ukraine. 2003. - No. 2 (33). - 3(34). - P. 558-566.
11. Andreytsev I. Mechanism of Guaranteeing the Ownership Right to the Land / V. Andreytsev // Competition. 2003. - No. 1. - P. 21-24.
12. Constitution of Ukraine dated: 28.06.1996. - No. 254k/96-VR // Bulletin of the Verkhovna Rada of Ukraine. 1996. - No. 30. - 141 p.
13. Declaration on the State Sovereignty of Ukraine dated: 16.07.1990. - No. 55-XII // Bulletin of the Supreme Soviet of the USSR. 1990. - No. 31. - 429 p.
14. Haliota A. I. Issues of Exercise of the Ownership Right to the Land by the Ukrainian People / Protecting the property rights of the Ukrainian people: domestic realities and foreign experience for Ukraine: materials of the First Annual International Scientific and Practical Conference (22 September 2016). -Kiev: National Academy of Public Prosecutor's Office of Ukraine, 2016. - 226 p.
15. Law of Ukraine 'On the All-Ukrainian Referendum'. - No. 5475-VI. - Dated 6, November, 2012 // Bulletin of the Verkhovna Rada of Ukraine. 2013. - P. 44-45. - 634 p.
16. Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of 57 People's Deputies of Ukraine on compliance with the Constitution of Ukraine (constitutionality) of the Law of Ukraine 'On All-Ukrainian Referendum' dated 26.04.2018. - No. 4. 2018 // Official Journal of Ukraine. 2018. - No. 41. - 1460 p.
17. Draft Law of Ukraine 'On All-Ukrainian Referendum' dated 26.09.2019. - No. 2182. [Electronic resource]. - Access mode: URL: http://search.ligazakon.ua/l_doc2.nsf/link1/JI00544A.html
