Użytkowanie wieczyste jako prawo celowe w gospodarce wolnorynkowej

Abstract

The purpose of this work is to establish whether perpetual usufruct right as a right in rem allowing – due to the purpose of that right – for more precise use of land owned by the State and by local authorities as well as their unions is - against its origin - a right that is needed in modern market economy. Deliberations are included in eight chapters and final comments are included in the conclusions. Chapter one provides an outline of laws allowing for long-term use of property owned by other people, that were present in the legal culture from ancient times until the outbreak of World War II. These rights, with Roman emphyteusis being the most important of them, are thus called emphyteutic rights. Special attention has been given to the goal-oriented nature of those rights as a recurring element of their contents, which allows to achieve specific purposes. It is necessary to characterise those rights, being indirect predecessors of perpetual usufruct right, to show that this right was not only created in a socialist country based on erroneous ideological assumptions. Chapter two provides an analysis of laws existing in the Polish legal system since 1945 which immediately preceded the occurrence of perpetual usufruct right. These deliberations are aimed at showing the evolution of domestic legal thought leading - as a result - to the development of a new institution. Further part of the work describes the functioning of the newly-established perpetual usufruct right in the first years after its implementation in the legal system and then changes in the normative environment after 1990, the result of which is the present form of perpetual usufruct. Chapter three includes a review of various attempts to eradicate perpetual usufruct after 1990, leading to transformation of this right into ownership title. The starting point for further deliberations is a systematic presentation of doctrinal and political voices of criticism related to perpetual usufruct right, which is preceded by examples of similar legal structures from selected foreign countries. Chapter four includes deliberations on the most important element of the contents, that provide ground for the goal-oriented nature of perpetual usufruct right, namely its purpose. Distinction has been made between the purpose in the urban planning aspect and in the contractual aspect, between the methods of defining and executing it. Special attention has been given to the problem of termination of perpetual usufruct, the criteria of assessing whether there is a discrepancy between the actual use of a real property and the purpose as defined in a contract, voluntary nature of request for contract termination, admissibility of contract termination with regards to a part of real property and the subsequent possibility of dividing such a real property that is subject to perpetual usufruct right. Chapter five includes proposals concerning the structuring of the mode of procedure, which are to lead to modification of a perpetual usufruct contract, if there is a permanent change in the manner of use of the real property. Controversies concerning both the admissibility of contract modifications and its terms and conditions have also been analysed. A separate part in this chapter of the work has been dedicated to assessment of competencies of public owner authorities and the function of those authorities in the process of contact modification. This issue is specifically important due to the need to answer the question of whether perpetual usufruct can function efficiently in the quickly changing free-market conditions. Deliberations from chapters six and seven have the same purpose. They include a catalogue of commercial goals that can be achieved by providing a real property for perpetual usufruct without getting rid of the ownership title thereto. It has been shown that the achievement of public goals by use of this right allows us to better control their execution, at the same time preventing the outcome of a failure in achieving those goals that occur in the form of an obligation to return expropriated real property which is not used for a public purpose. Special focus here has been given to a proposal to use perpetual usufruct as an interim right on the way to ownership of land related to residential buildings. In order for perpetual usufruct right to effectively stimulate the performance of targeted investment projects, it was also necessary to consider the potential need for changing its normative form. Comments on this topic are included in the last chapter which also focuses on the economic and financial context of the functioning of that right. The work finishes with conclusions that provide a summary of the findings included in the work and an answer to the hypothesis related to establishing whether perpetual usufruct right as a goal-oriented right can be applied in the free-market economy. The work describes the legal status as of 15 September 2018.