The USA Journals Volume 03 Issue 07-2021
9
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
July 30, 2021 |
Pages:
9-13
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue07-02
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
The article examines the current issues of the law and practice of family members in the Civil and
Housing Code of the Republic of Uzbekistan, analyzes the theoretical views of legal scholars and
legislation. In practice, some problems related to the incorrect qualification of the norms for the use
of property by family members were also investigated. At the same time, reasonable, constructive
proposals were made for the use of the property by family members.
KEYWORDS
Family members, couple, property, housing, private property, usufruct, superficies, property law.
INTRODUCTION
It is known that housing has a special legal
regime as a permanent and basic need of a
person [1]. In this case, the property rights of
the owner and the use of family members have
a special character. After all, it is especially
important to determine the relationship
between property rights and its elements, the
study of issues related to the use of family
members.
The Right Of A Married Couple And Other Family Members
To Use The Property
Ozoda Burievna Shamsiddinova
PhD Student, High School Judges With The Supreme Judicial Council Of The Republic Of
Uzbekistan Republic Of Uzbekistan, Tashkent City, 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 07-2021
10
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
July 30, 2021 |
Pages:
9-13
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue07-02
I
MPACT
F
ACTOR
2021:
5.
952
THE MAIN FINDINGS AND RESULTS
The Constitution of the Republic of Uzbekistan
stipulates that everyone has the right to own
property. This, in turn, has given a great
impetus to the opening of private property in
the country and the formation of a sense of
ownership in people, as well as increased the
ability of individuals to meet their material and
spiritual needs.
As a result of the adoption of the Law of the
Republic of Uzbekistan “On Privatization of the
State Housing Fund” of May 7, 1993 [2], it can
be said that the problem of property rights to
housing and its use has been somewhat
eliminated.
Article 12 of the law stipulates that apartments
cannot be privatized even if two or more
tenants live there, some of whom do not agree
to privatization. According to Article 13 of the
law, the persons who agreed to the
privatization of housing must retain the right
to use the living space, and the sale or lease of
privatized housing must be carried out with
their consent.
In the 1990s, disputes over the exercise of
family members' property rights to housing
continued. The participation of family
members in the privatization process, requiring
their consent to the disposal of the property
rights, influenced the disposal of the property
rights.
According to the amendments to the Housing
Code of the Republic of Uzbekistan dated
October 11, 2018, the right to use housing of a
person who consented to the privatization of
housing is not part of the inheritance opened
after his death (Article 32). As a result of
changes in legislation over time, the dispute
has put an end to the courts ’differing
approaches to the issue. This is because the
secondary housing market has also developed
for some time.
A specific approach in this regard is related to
the definition of family members in the code.
Article 5 of the Family Code defines family
members: spouses, parents and children
(adoptees and adopted children). According to
Article 32 of the Housing Code of the Republic
of Uzbekistan, family members of a
homeowner are his wife (husband) and their
children living with him permanently. The
parents of the couple, as well as married
children living permanently with the owner and
their spouse, may be recognized as family
members of the owner only by mutual
agreement if they have not previously had this
right.
According to Article 9 of the Housing Code of
the Republic of Uzbekistan, special houses
(dormitories, temporary housing, boarding
houses for the disabled, veterans, lonely
elderly people, intended for permanent
residence of citizens, meeting the established
sanitary, fire, technical requirements, as well as
in the prescribed manner, as well as places
intended for use as orphanages and other
special-purpose houses) [3].
Accommodation is also real estate due to the
following features:
1.
Integral connection of housing with land;
2.
Inability to move accommodation from
one place to another;
3.
Inability to use the accommodation for its
intended purpose when relocated;
4.
When a dwelling is moved, its shape and
div change, if a dwelling or a house is
The USA Journals Volume 03 Issue 07-2021
11
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
July 30, 2021 |
Pages:
9-13
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue07-02
I
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F
ACTOR
2021:
5.
952
moved, its properties are lost, and if it is
damaged or cracked, the shape of the
house will change in the future. It is
impossible to build a house with such
materials, even if it is demolished and built
elsewhere [3].
From the above, it can be seen that housing as
a real estate is distinguished by its unique
features. However, according to Article 209 of
the Civil Code, any property can be private
property, except for certain items prohibited
by law. There is no full opportunity to exercise
the right of private property in relation to the
land plot.
According to O. Okyulov, there is a certain
conflict between social and private interests in
the introduction of private ownership of land.
The essence of social relations in relation to
land is that both our people as a whole and
every citizen individually want to use these
lands now, in the future and for future
generations. The legal regime established in
the current laws in relation to land is aimed at
ensuring the same social interests [4, p. 30].
The rapid development of market relations
requires that the land also be included in full
civil circulation, allowing for the conclusion of
contracts for the sale or other disposal of
property rights. This, in turn, puts the
introduction of private property rights over
land on the agenda.
At present, the President of the Republic of
Uzbekistan 2019
The draft law “On approval of the Civil Code of
the Republic of Uzbekistan”, developed to
ensure the implementation of the order of the
President of the Republic of Uzbekistan No F-
5464 dated April 5 “On measures to improve
the civil legislation of the Republic of
Uzbekistan” was submitted for public
discussion [5].
The project pays special attention to the
specific achievements, the implementation of
the goals and objectives set out in the concept.
It also includes constructions and rules related
to property rights, and it would be appropriate
to record these achievements.
According to the current FC, the right to build
(super fiction) was not provided. The draft FC
specifies the right to build (super fiction),
which includes the concept of super fiction, the
basic conditions, payment for it, and the
termination of the super fiction. The draft FC
also defines the right of personal use and
possession (usufruct), which also includes the
types of usufruct, the determination of the
status of the object, the rights and obligations
of the usufructuary, the rules for the
termination of usufruct.
Although the usufruct specifies the application
of the rules established for the acquisition of
movable and immovable property as well as
intangible benefits, the usufruct in the FC
project may be established only in respect of
real property. In essence, usufruct can be
defined in relation to both real estate and
movable property. Article 581 of the French
Civil Code provides for this possibility. Under
French law, another usufruct may be
established in favor of the parents of the
children in respect of the usufruct which is part
of the property bequeathed to the children
(Articles 382-387). In contrast, the German Civil
Code prohibits the designation of usufruct in
relation to usufruct (§ 1059b).
The USA Journals Volume 03 Issue 07-2021
12
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
July 30, 2021 |
Pages:
9-13
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue07-02
I
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ACTOR
2021:
5.
952
Although the draft FC stipulates that usufruct
can be assigned to legal entities, the question
of how long it can be granted remains open.
According to the French Civil Code, a term of no
more than 30 years may be imposed (Article
619). It appears that the legislature has chosen
the path of the German Civil Code and
stipulates that usufruct may be imposed until
the legal entity is liquidated.
The right to use housing on the basis of limited
property rights is also a form of “usufruct”
known in ancient Rome. It, in turn, means
taking profit, income (including produce and
income) from someone else’s real estate while
retaining it [6]. In this case, unlike the
easement, usufruct also imposes certain
obligations on the user. For example, the
provision of goods for use, payment of fees,
etc., [7, pp. 78-79]. This property right is not
provided by civil law. It should be noted that
certain elements of this right are provided for
in the current civil legislation of the CIS and, in
particular, the Republic of Uzbekistan (for
example, Article 32 of the Housing Code).
The jurisprudence, on the other hand, naturally
faces difficulties in applying Article 32 of the
Housing Code. On the one hand, the protection
of the rights of family members, especially
minors, and women, on the other hand,
requires the exercise of the rights of the
owner. True, the landlord can dispose of the
home even if other people have the right to use
it. In this case, the owner or family members
can often become victims of various offenses
(blackmail, extortion, fraud, etc.).
However, it should be borne in mind that the
simultaneous existence of elements of
property rights, in particular the important rule
of the contract of sale, that is, the right to
dispose of housing without the transfer
without the rights of third parties, cannot be
exercised literally.
Based on the above, it should be noted that the
usufruct is due to the fact that the norm is
limited to a certain period of time. The usufruct
rule has been widely used in court practice as a
right of certain persons in the form of a certain
norm (Article 32 of the Housing Code). The
subtlety of the matter is that this exercise was
largely exercised by those who were "able" to
exercise the right. Otherwise, it is also known
that the landlord is subjected to various
pressures by selling or renting the home.
Usufruct should not be seen as a personal
servitude, as it is another type of property right
limited to another's property.
In our opinion, usufruct originated in Ancient
Rome as the right of family members to use
things. This is because usufruct stems from the
need to provide assistance to those who need
to be cared for by the owner. Some experts
also emphasize this right as a right that clearly
performs the function of alimony [8, p. 262].
For example, according to the legate, the
father of the family (pater families) provided
his widow with income from the inherited
property, even though the heir was another
person.
According to Article 32 of the Housing Code,
the interests of the minor family members of
the privatized homeowner are represented by
their parents and in their absence by the
guardianship and trusteeship authorities.
However, the issue of protecting the rights of
family members, especially minors, in cases
where they have lost their right to housing
remains.
The USA Journals Volume 03 Issue 07-2021
13
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
July 30, 2021 |
Pages:
9-13
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue07-02
I
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ACTOR
2021:
5.
952
CONCLUSION
In our opinion, it is appropriate to include the
following ninth paragraph in Article 32 of the
Housing Code:
In the event that a minor loses the right to
reside in the residence where the parent
resides or is unable to reside, the court may
order each parent to be involved in the
additional costs of providing the children with
housing. Accommodation for children can be
provided through the purchase or rental of
housing, depending on the parent’s choice.
REFERENCES
1.
Constitution of the Republic of Uzbekistan
Publishing House "Uzbekistan" 2018 Article
36. – p. 15.
2.
https://lex.uz/docs/98430.
3.
Comments on the Housing Code of the
Republic of Uzbekistan./ Editor-in-Chief:
Honored Lawyer of Uzbekistan, Doctor of
Law, Professor I.B. Zokirov. –Tashkent:
STUL, 2007. – p. 30-113.
4.
Oqyulov O. Problems of full introduction of
land into civil circulation in the Republic of
Uzbekistan. Journal of Legal Sciences.
2019. №2. – p. 30.
5.
https://regulation.gov.uz/ru/d/29059
6.
German Civil Regulations § 1030 and § 1068;
Article 745 of the Swiss Civil Code.
7.
Civil law: In 4 volumes. Volume 2: Property
law. Inheritance law. Exclusive Rights.
Personal moral rights: Textbook. 3rd
edition, revised and enlarged. Ed. E.A.
Sukhanova. - Moscow: Walters Kluver,
2008. – pp. 78-79.
8.
Sanfilippo C. (2007) Course of Roman
private law: textbook. – Moscow. – p. 262.
