The USA Journals Volume 03 Issue 10-2021
33
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
October 30, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue10-07
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ACTOR
2021:
5.
952
‘
ABSTRACT
The article discusses the civil law issues of establishing the property rights to land plots. The civil law
issues of improving the protection of these rights, ensuring the inviolability of private ownership of
land plots are also studied in this article, basing on the experience of foreign countries, theoretical and
practical recommendations are given for improving the legislation on this problem.
KEYWORDS
A Land Plot, Property Right To Land Plots, Seizure Of Land Plots For State And Public Needs On The
Terms Of Compensation, Ensuring The Inviolability Of Private Property, Protection Of Rights And The
Legitimate Interests Of The Owners.
INTRODUCTION
Land is a fundamental resource of the nation
state. Without land, without territory, there
can be no nation state
1
. Housing, agriculture,
natural resource use, and national security
concerns are all based upon land management
and use
2
.
1
R.Jennings and A. Watts, eds., Oppenheim's
International Law (London, 1992) (hereafter,
“Oppenheim”), at 121.
In this sense, in the implementation of political,
economic and social reforms by the state land
property relations play a significant role.In the
Article 55 of the Constitution of the Republic of
Uzbekistan is mentioned that the land, its
minerals, fauna and flora, as well as other
2
S.Hodgson,
C.Cullinan,
K.Campbell.
Land
Ownership and Foreigners – A Comparative Analysis
of Regulatory Approaches. FAO Legal Papers
Online, December 1999, at 6.
Property Rights Of Business Entities In Relation To The Land
Plot And Its Civil Protection
Sherbek Nazarov
The Independent Researcher At The School Of Judges Under The Republic Of Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 10-2021
34
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
October 30, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue10-07
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2021:
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natural resources shall constitute the national
wealth, and shall be rationally used and
protected by the state.
According to the Article 83 of the Civil Code of
the Republic of Uzbekistan, property as an
object of civil rights is divided into immovables
and movables, the plots of which are included
in the list of types of immovable property.
It should be noted that the property right to
land plots in relation to other objects of
property rights has been disputed at different
times, and dissimilar views have been formed
on it.
In this case, the property right to land plots
means to whom the land belongs and the
powers of the owners in relation to natural
resources. Property rights to the land are seen
in the processes of ownership, use and disposal
of land. In general sense, the land is a state
property in accordance with the laws of the
Republic of Uzbekistan. Particularly, the Article
214 of the Civil Code of the Republic of
Uzbekistan stipulates that the land is the
property of the Republic.
At the same time, the legal basis of property
right to land is defined in a number of laws. The
Article 188 of the Civil Code stipulates that
“property rights of citizens and legal entities to
land plots arise in the cases, in the manner and
under the conditions provided by law,” and
these issues are directly provided by the land
legislation. So, the land can be named as
immovable property in one hand and an
integral part of the natural environment that
surrounds us in another. Hence, the land has
3
Land Code of the Republic of Uzbekistan // Bulletin
of the Oliy Majlis of the Republic of Uzbekistan,
1998 y., 5-6, Article 82 of the law of the Republic of
Uzbekistan "on privatization of land plots not
both
environmental
and
economic
characteristics. Therefore, the land remains
both a natural object and a property at the
same time, and it is indivisible from the
environment.
On this basis, since the land is a national wealth
– state property, it follows the conclusion that
in Uzbekistan it is not possible to privatize the
land as a part of nature, but only those lands –
land plots that are not intended for agriculture
purposes.
According to the legislation of Uzbekistan, a
land plot is a part of the land fund that is not
allocated or intended for agricultural purposes,
has a specified boundary, area, location, legal
regime and other features reflected in the
state land cadastre
3
.
Obviously, the basis of market economy is
private property. Without private ownership of
the land, market economy would not be
complete.
In this regard, in present times the views on the
recognition of property rights to the land in
legal theory and law enforcement practice are
developing and changing totally in line with the
advance of market economy.
Economically developed states’ experience
shows that market relations evolve only when
the producer, particularly the farmer, is free in
his labor activity and is the real owner of the
land and the product, which are the most
important resources
of
production
in
agriculture.
intended for agriculture" / / national database of
legislative acts, 13.08.2019 y., 03/19/552/3541-
number.
The USA Journals Volume 03 Issue 10-2021
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The analysis of the experience of the land
privatization during the transition to market
relations in countries that have lived through
the similar historical processes as Uzbekistan
approves that this process was carried out in
two major ways.
The first type
of land privatization is the
restitution method. Restitution
4
(from Latin,
restitutio - restoration) is the return of
property to its previous owners on the basis of
documents, restoring the right of ownership.
This type of privatization has been introduced
mostly in Eastern European and Baltic
countries and it is still in practice.
The second type
of land privatization states
that a free share of the land was provided to
the population who are directly occupied in
agriculture. This type of privatization was
carried out in the Russian Federation
5
.
Reforms in the field of land relations in foreign
countries have led to significant changes in the
form of ownership of land and in the state's
monopoly on land, consequently expanding
the range of users has brought positive
economic effects.
In particular, in Bulgaria in 1992 it was adopted
the Law “On Land”, which specifies the
formation of a free land market in the country.
Moreover, in Romania under the “Land Law”
of 1991, farmers' land became their private
4
Land Code of the Republic of Uzbekistan // Bulletin
of the Oliy Majlis of the Republic of Uzbekistan,
1998 y., 5-6, Article 82 of the law of the Republic of
Uzbekistan "on privatization of land plots not
intended for agriculture" / / national database of
legislative acts, 13.08.2019 y., 03/19/552/3541-
number.
5
Xolmo'minov O. (2020) "Civil law issues of land
ownership formation," Review of law sciences: Vol.
4
:
Iss.
1, Article 20.
properties. The principle of free choice of land,
adopted in the XIX century in Australia, still
applies. In addition to the sale of land plots, the
lease of land is also common
6
.
And in Uzbekistan it is notable that a peculiar
method was selected in this process, taking
into
consideration
the
socio-economic
situation and the national mentality of the
people.
Several regulations intended for the gradual
implementation of reforms have been adopted
in this area. Initially, by the Decree
7
of the
President of the Republic of Uzbekistan No.
PD-745 dated 21 January 1994 and by the
Decree
8
No. PD-1009 dated 24 November 1994,
the land plots, where the objects of
commercial and service spheres are located,
are mentioned to be sold individuals and legal
entities, including foreign persons on the basis
of selection as a private property and in order
to build individual private house by the
auction
9
.
According to the Decree
10
of the President of
the Republic of Uzbekistan dated 24 July 2006
No. PD-3780, legal entities-residents of the
Republic of Uzbekistan were entitled to
privatize buildings and structures possessed by
them, land plots on which the objects of
infrastructure production are located, as well
as land plots adjacent to these objects,
6
Kuchkinov K.A. Legal regulation of land use
contracts: juridical. science. the dis. ... - Tashkent:
2012. - 17b.
7
https://lex.uz/docs/195887
https://lex.uz/docs/197514 (2021 year 30 April lost
its power)
9
Azizov Kh. Objects of private property rights of
citizens. Dissertation. 1994. - 162 р.
10
"Collection of legislative acts of the Republic of
Uzbekistan", Article 288, number 30, 2006 year.
The USA Journals Volume 03 Issue 10-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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Published:
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Pages:
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Doi:
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I
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2021:
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additionally applicable technology processes,
taking into account the norms and rules of
urban construction
11
.
The Decree of the President of the Republic of
Uzbekistan No. PD-5623 of 10 January 2019,
establishes cases with the right to privatize
land plots of individuals and legal entities in
order to introduce modern market conditions
into the circulation and use of land plots,
moreover the privatized land plots are
considered as private properties (objects of
civil relations) and they are inviolable regarding
to the protection by the state in accordance
with the law.
The Law of the Republic of Uzbekistan “On the
privatization of land plots which are not
intended for agriculture”, that entered into
force on 1 March 2020, having a great
importance for determining the legal basis for
the privatization of land plots not intended for
agriculture, defined the basic rules and
procedures for the privatization of land plots.
O.Xolmo'minov believes that this law, adopted
as a legal experiment, is to a certain extent the
first stage of the introduction of private
ownership in relation to the land. In the first
order, among of other cases of land
privatization, a private individual has a right to
privatize the land, where his enterprise is
located. Consequently, there is a principle of
unity of land plots and objects located in
them
12
.
The introduction of a transparent, market-
based and equal procedure for allotment of
11
Rahmankulov H., Azizov Kh., Civil-legal guarantees
of the right to private property of business entities.
Monographs. T.: 2013. - 190 p.
12
Xolmo'minov O. (2020) "Civil law issues of land
ownership formation," Review of law sciences: Vol.
land plots, ensuring stability in property and
legal relations in the field of land use, land
protection, guaranteeing the property rights of
landowners, as well as their introduction into
free circulation as an object of civil law
relations by determining the economic value of
land, are considered as the basic principles of
the market economy (the Degree of the
President No. PD-6243).
It should be noted that the President of the
Republic of Uzbekistan Shavkat Mirziyoyev
carried out important reforms in this area. In
particular, the Decree
13
of the President of the
Republic of Uzbekistan No. PD-6243 of June 8,
2021 “On measures to ensure equality and
transparency in land relations, reliable
protection of land rights and their conversion
into market assets” has brought the reforms,
carried out on the establishment of property
rights in relation to the land plot and its civil-
law protection, to a new level.
By this Decree, the types of rights to the land
were enhanced, the procedure for allocating
land with rights of inherited lifelong
possession, of permanent possession, of a
temporary access to the land were completely
abolished,
moreover
land
plots
were
determined to be allocated on the basis of the
right for property and lease by the private
sector and for permanent use by state
organizations. The sale of lands as a private
property, which are not intended for
agriculture, to citizens and legal entities of
Uzbekistan as well as the sale of rental rights of
lands that cannot be privatized, to foreign
4
:
Iss.
1 , Article 20.
13
National database of legislative acts, 09.06.2021 y.,
06/21/6243/0540-number.
The USA Journals Volume 03 Issue 10-2021
37
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Pages:
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persons, and the privatization of lands, where
buildings and structures of individuals and legal
entities are located, at the expense of the
material recourses, are determined.
In order to introduce the provisions of the
Decree into the practice, on August 16, 2021,
the Law “On amendments and additions to
certain legislative acts of the Republic of
Uzbekistan regarding to the separation and
use of land plots, as well as land accounting
and improvement of the system of State Land
Registry” was adopted
14
.
Concerning to this reform, the President of the
Republic of Uzbekistan Shavkat Mirziyoyev
noted: “in open dialogue with entrepreneurs
of our country, a solid legal ground was created
for the introduction of lands into economic
turnover, their purchase and sale and their
conversion into a pledge object. The market
value of the land plots appears as a result of its
privatization. A person, who has a land,
becomes a real proprietor and capital
owner”
15
.
The most important thing is what changes can
be occurred in the life of an ordinary citizen.
First of all, his private property will have
powerful protection. According to the request
of the legislation, private lands can be
withdrawn only for the needs of the state and
the public with the consent of the owner. If the
land is privatized, then it will no longer be
possible to take the land away for the needs of
14
National database of legislative acts, 17.08.2021 y.,
03/21/708/0799-number.
15
Speech by the President of the Republic of
Uzbekistan Shavkat Mirziyoyev at the meeting with
entrepreneurs of our country in the form of open
communication "Creation of all conditions for rapid
and wider development of entrepreneurship is our
most
important
task"
//
https://president.uz/uz/lists/view/4551
the state and the public solely providing the
compensation for the building and property. In
that case, the particular land should be sold by
the owner or other way of agreement should
be reached with the owner. If it is not agreed,
then the land cannot be withdrawn. So,
another legal opportunity was created for
citizens to protect their properties.
Private property is an integral part of the
economic basis of society and driving force in
the transition to market relations, therefore, its
development and stimulation, as well as all-
round protection are fixed at the highest
legislative level
16
.
In concordance with the foregoing the issue of
civil legal regulation of land ownership in
Uzbekistan has its own peculiarity of
development.
At the same time, the legislation on property
rights has not been sufficiently improved
17
. It is
necessary to consistently implement reforms
aimed at further enhancement of the
protection of property rights of business
entities, strengthening the legal framework for
the protection of property rights and its civil
law basis in relation to the land plot.
Firstly
, the Land Code of the Republic of
Uzbekistan, which is in force today, was
adopted in 1998 and it is not fully responsive to
the legal regulation of complex and rapid
economic and social relations at the current
16
Azizov Kh. Judicial protection of private property
and entrepreneurship. Bulletin of the Supreme
Economic Court. 7/2010, article 12.
17
Podshivalov T. Models of Actio Negatoria in the
Law of Russia and European Countries. Russian Law
Journal.
2019;7(2):128-164.
(In
Russ.)
https://doi.org/10.17589/2309-8678-2019-7-2-128-164
The USA Journals Volume 03 Issue 10-2021
38
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
October 30, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue10-07
I
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F
ACTOR
2021:
5.
952
stage of development of society. At the
moment, many relations in this field are not
regulated by this Code, but by subordinate
legal acts.
Therefore, the unification of normative legal
acts in this field by drafting a new edition of the
Land Code is necessary and relevant to cover
the full regulation of legal relations in the land
sector
and
promote
the
economic
development of the state.
Secondly
, the seizure of land plots for the
needs of the state and the public, as well as the
destruction of objects located on the seized
land plots, are a pressing problem in many
states, and the inadequacy of legal regulation
of these issues to the necessary extent, in most
cases,
causes
discontent
among
the
population.
It should be noted that the issues related to the
seizure of land plots for the needs of the state
and the public are regulated mainly by the
present
day
subordinated
legislation.
Therefore, it is desirable to define at the law
level the issues of withdraw of land plots based
on compensation for the needs of the state
and the public, and also to develop and
implement the law "On the acquisition of land
plots for public needs (expropriation)", which
mentions the fair compensation for the
acquisition of the land plots of individuals and
legal entities for public needs (expropriation).
Thirdly
, in order to determine the cadastral
value of objects of immovable properties,
including land plots, based on their market
prices, to regulate the relations that arise when
conducting state cadastral valuation of
immovable properties, it is desirable to
18
Over the past five years, about 2 thousand laws,
decrees and decisions have been adopted aimed at
develop and adopt the draft law "On the state
cadastral valuation of immovable properties".
Fourth
, in order to provide constitutional
guarantees for the inviolability and protection
of private property, it is proposed to cancel the
procedure for imposing additional obligations
on the owner on the basis of non-use or non-
rational use of private property or the
establishment of taxes and other fees in an
overstated amount (rate), to establish in our
legislation norms based on the best foreign
experience in relation to the right to self-
protection of the owner's property, where the
limits of necessary protection (self-help) are
not exceeded.
In conclusion, socio-economic reforms carried
out in our country in these conditions
18
,
ensuring the inviolability of private property,
strengthening the right of property owners,
including entrepreneurs, in relation to the land
plot and improving the legal framework for its
civil-legal protection, are especially important
for the economic development of the country
and the prosperity of the population.
REFERENCES
1.
R.Jennings
and
A.
Watts,
eds.,
Oppenheim's International Law (London,
1992) (hereafter, “Oppenheim”), at 121.
2.
S.Hodgson, C.Cullinan, K.Campbell. Land
Ownership
and
Foreigners
–
A
Comparative Analysis of Regulatory
Approaches. FAO Legal Papers Online,
December 1999, at 6.
3.
Land Code of the Republic of Uzbekistan //
Bulletin of the Oliy Majlis of the Republic of
Uzbekistan, 1998 y., 5-6, Article 82 of the
law of the Republic of Uzbekistan "on
developing
this
sector
//
https://president.uz/uz/lists/view/4550
The USA Journals Volume 03 Issue 10-2021
39
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
October 30, 2021 |
Pages:
33-39
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue10-07
I
MPACT
F
ACTOR
2021:
5.
952
privatization of land plots not intended for
agriculture" / / national database of
legislative
acts,
13.08.2019
y.,
03/19/552/3541-number.
4.
Land Code of the Republic of Uzbekistan //
Bulletin of the Oliy Majlis of the Republic of
Uzbekistan, 1998 y., 5-6, Article 82 of the
law of the Republic of Uzbekistan "on
privatization of land plots not intended for
agriculture" / / national database of
legislative
acts,
13.08.2019
y.,
03/19/552/3541-number.
5.
Xolmo'minov O. (2020) "Civil law issues of
land ownership formation," Review of law
sciences: Vol. 4 : Iss.1, Article 20.
6.
Kuchkinov K.A. Legal regulation of land use
contracts: juridical. science. the dis. ... -
Tashkent: 2012. - 17b.
7.
https://lex.uz/docs/195887
8.
https://lex.uz/docs/197514 (2021 year 30
April lost its power)
9.
Azizov Kh. Objects of private property
rights of citizens. Dissertation. 1994. - 162 р.
10.
"Collection of legislative acts of the
Republic of Uzbekistan", Article 288,
number 30, 2006 year.
11.
Rahmankulov H., Azizov Kh., Civil-legal
guarantees of the right to private property
of business entities. Monographs. T.: 2013.
- 190 p.
12.
Xolmo'minov O. (2020) "Civil law issues of
land ownership formation," Review of law
sciences: Vol. 4 : Iss.1 , Article 20.
13.
National database of legislative acts,
09.06.2021 y., 06/21/6243/0540-number.
14.
National database of legislative acts,
17.08.2021 y., 03/21/708/0799-number.
15.
Speech by the President of the Republic of
Uzbekistan Shavkat Mirziyoyev at the
meeting with entrepreneurs of our country
in the form of open communication
"Creation of all conditions for rapid and
wider development of entrepreneurship is
our
most
important
task"
//
https://president.uz/uz/lists/view/4551
16.
Azizov Kh. Judicial protection of private
property and entrepreneurship. Bulletin of
the Supreme Economic Court. 7/2010,
article 12.
17.
Podshivalov T. Models of Actio Negatoria in
the Law of Russia and European Countries.
Russian Law Journal. 2019;7(2):128-164. (In
Russ.) https://doi.org/10.17589/2309-8678-
2019-7-2-128-164
18.
Over the past five years, about 2 thousand
laws, decrees and decisions have been
adopted aimed at developing this sector //
https://president.uz/uz/lists/view/4550
