Protection of property rights
1. Declaratory claim
As a means to protect subjective rights, the declaratory claim was established in the Civil Procedural Code (CPC) and is eligible for the protection of property rights. Art. 124 (1) CPC allows every person to bring an action in order to restore a right thereof where the said right has been impaired, but also to establish “the existence or non-existence of a legal relation or of a right, where the said person has standing to do so.” Subject of such claim may be any rights - including property rights. The aim is clarification and uncontestedness in civil relations. The demanded force is exhausted by the force of res judicata, by which the right in question is confirmed or denied. An important prerequisite for the admissibility of the action is the existence of legal interest. The right that is alleged or denied by the plaintiff against the defendant should be in relation to the same property. If the target is for the court to establish the existence of the contested right, this action is a positive declaratory claim. If the action is brought by a person who denies the existence of the contested property right, the action is called a negative declaratory claim. It could be said that declaratory relief is a subsidiary form of protection. It would be inadmissible when the claimant may be protected by reprehensible action /Decision 3/1983 of the Supreme Court /.
2. Restitution claim under Art. 108 of the Property Act (PA)
Restitution claim under Art. 108 PA is defined as a reified, proprietary claim, but it can also protect limited property rights. This action can defend not only private but also state and municipal property. As a reified claim it is not statute barred. The aim is to restore possession to the owner when it has been taken, i.e. it is necessary for the seized property to actually exist. It must be delivered to the owner in the state in which it was upon filing of the claim. It follows that if the property has been destroyed or damaged, the owner may seek its monetary equivalent, respectively compensation for damage caused by way of a debenture claim.
Claimant can only be the owner, respectively the holder of the limited property right. So is the co-owner, if another owner has taken away their possession of the property. In recent case law it is assumed that co-owners may bring an action under Art. 108 PA against another co-owner, who entirely deprived them from the possession of the general property so as to reclaim their undivided part.
The defendant in a restitution claim can be any person who possesses or holds foreign property without any basis for doing so. Passively legitimised is the person exercising actual power over the foreign property, without having such rights. Defendant may only be a person who at the time of filing the claim possesses or holds the foreign property.
According to Art. 109 of the CPC, the claim is cognizable in the regional court where the property is located. The application must indicate the circumstances concerning the ownership and unjust control of the property, as well as the form of order sought. In the case of a restitution claim the burden of proof is on the claimant. He must prove two things: first, that they are the owner; second, that the defendant possesses or holds the property. The defendant is the one who must prove to the opposition that their possession of the property is unfounded.
The form of order sought includes a request to order the defendant to surrender possession of the property and to return the property in the patrimony of the owner. The restitution claim has reified, proprietary nature. It is a reprehensible claim. The decision is reprehensible and enforced by the means provided in the CPC. The general rule is that the judgment has effect only between the parties to the claim. Thus, if the bailiff does not find the movable in the debtor, they will recover its monetary equivalent. However, if the restitution claim concerns real estate and the latter is no longer in the possession of the defendant after the entry into force of the decision, the decision has effect on the person who is in possession thereof, if such possession was gained after the restitution claim was brought.