Considerations on the Right to Public Property

• Author: Adriana Pascan
• Position: Senior Lecturer, PhD, Danubius University of Galati, Faculty of Law, Romania
• Pages: 308-311

European Integration - Realities and Perspectives

2012

308

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Considerations on the Right to Public Property

Adriana Pascan

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Abstract: From a ncient times, property has been perceived as b eing something absolutely necessary for life

as the human society could not have been perceived without property which was characterised in the doctrine

as being “ the matrix of the moder n subjective rights”. According t o the Bible, at the origin of the humanity,

the owners of goods could only have been Adam and Eve, a s ocial equity in an ideal world that could have

existed in the pre state age and will continue to exist in a future world. We can ther efore consider the property

as being natur al and necessary for humans. W ithout it the social organization cannot be possible as the

property relations are the most important element in the production r elations, together with the exchange

activity between humans. The individual property is the indispensable condition for freedom.

Keywords: private property; right to property; administrative units; holder of right to property; legislation

1 Introduction

The property (Dogaru & Sambrian, 1966) represents a social relation of proximity being at the same

time an economic relation of property, acknowledged as a proximity relation between people for the

material goods as a condition of their existence, of assuming the material premises of a production

process that also creates a particular behaviour for the neighbours (Ungureanu & Munteanu & Rujan,

2005). “Good proximity entails at least two duties: first, the neighbour will not prejudice the

neighbour and second, the neighbour will not inconvenience the neighbour in an intolerable manner”.

When this property is protected and guaranteed by the coercive force of the state, it becomes a

property relation, namely the right to property and is part of the economic basis of every human

society the jurisprudence having the creative role and difficult task to conciliate the legitimate interest

of the proprietor with social interest, when the discussion regards the proximity relations based on

laws, regulations, customs and jurisprudence (Boroi & Stanciulescu, 2003).

2. Judicial Features of the Right to Public Property

Analysing the constitutional dispositions i n the matter of the right to private property as well as the

provisions of the laws comprising incidental norms in the matter of the judicial regime of the right to

property, the doctrine underlined that the following judicial characteristics are specific to the latter:

inalienability, non prescriptible character, indeterminable. This triple area of features for the right to

public property results from the texts of law. Accordingly, article 136, paragraph 4 in the Constitution

establishes that the public property goods are inalienable, article 5 paragraph 2 in Law 18/1991

stipulates that the terrains part of the public domain are inalienable, non prescriptible and

indeterminable. Article 120, paragraph 2 in Law 215/2001 regulates the principle according to which

the goods part of the public domain are not alienable, non prescriptible and indeterminable as follows:

a) they cannot be alienated but can be given in administration, concession or rented, under the

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Senior Lecturer, PhD, Danubius University of Galati, Faculty of Law, Romania, Address: 3 Galati B lvd, Galati, Romania,

tel: +40372 361 102, fax: +40372 361 290, Corresponding author: adriana.pascan@univ-danubius.ro.