| Abstrakt: | This paper primarily deals with special forms of and modifications to the general rules that exist for trading in public real estate. In general, the legislator introduces them to enable the achievement of certain public tasks. Therefore, key considerations shall not focus on the public nature of an entity that appears in such trading, but rather on the public nature of real estate that is the subject of such trading. Such considerations are presented in three main approaches to real estate trading, or namely at the stage of purchasing real estate by a public entity, when public entities are involved in trading, and selling such properties to an nonpublic entity. The main purpose of these considerations is to try to point out features characteristic for trading in public real estate and, based on such features, to develop universal theoretical models that are present in each of the research approaches mentioned. Such trading is perceived as sensu largo, since public and private legal forms of operations pursued by public administration authorities permeate with various solutions of a legislative nature, bringing about consequences in the sphere of civil law, and limiting them to trading in real estate sensu stricto would not allow the essence of special forms of public real estate trading to be presented. The considerations presented in the paper are used to prove its main premise that assumes that the content of public real estate law authorises an assumption that they should be subject to special forms of trading with respect to disposition and obligation actions; nonetheless, such forms should create legal grounds for utilising such real properties for achieving public tasks.
The paper comprises of five chapters that have been thematically structured. Chapter I discusses issues that are topical for the paper and presents methods that have been employed in research work. Chapter II contains considerations relating to the notion and content of public ownership and their impact on separating a category of public real estate. The chapter points out the interdisciplinary nature of the notion of ownership, but it also presents views related to the theory of law on separating public and private ownership. This chapter discusses ways of understanding the “public real estate” notion, by both representatives of the theory of law and judicial practice and presents an attempt that has been made to demonstrate criteria for separating public real properties. Chapter III reviews the purpose and objective of setting up public real estate pools based on the existing legal status. Special attention has been given to real estate of the State Treasury and various ways in which it is represented in civil law relations. Chapter IV presents the rules that govern trading in public real estate. In particular, it points out that instead of defining such rules, the legislator has adopted a mechanism of applying casuistic, extended regulations that frequently do not allow general conclusions to be drawn. Chapter V discusses special forms of real estate trading based on an example of selected legal structures. Forms concerning the acquisition of real estate, forms relating to trading in real estate among public entities, and forms concerning the disposal of real estate by public entities to third-party entities have been indicated.
The paper ends with a section in which detailed assessments of the legal status have been formulated and de lege ferenda postulates have been presented. It has been emphasised that the currently applicable legal system that governs trading in public real estate is chaotic and in-depth modifications need to be implemented. The major postulates proposed for the legislator should include a change of the organisational model of managing real estates that are the ownership of the State Treasury, a separation of regulations concerning public real estate only, or the development of conditions for employing state-of- the-art technologies in the process of managing real estate that is owned by public entities. |