Private versus Public Domain

• Author: Matei, C.G.
• Position: Faculty of Law, Transilvania University of Brasov
• Pages: 133-136

Bulletin of the Transilvania University of Braşov • Vol. 5 (54) No. 1 - 2012

Series VII: Social Sciences • Law

PRIVATE VERSUS PUBLIC DOMAIN

Cătălina G. MATEI1

Abstract: The purloining of the private appropriation of a category of

goods destined for the use of the entire community has been a co ncern

acquiring to historic dimensions, since the Roman law to present. In an

incipient form goods were considered common even in the period of

emerging tribal communities, but the category of public property goods

represents, both semantically and content wise the complex result of

centuries of ju dicial as well as econ omic evolution once with the occurrence

of state organisation.

Key words: property, public interest, private domain.

1 Faculty of Law, Transilvania University of Braşov.

1. Introduction

Gradually a category of go ods emerged

not subject to private appropriation and

that could not belong to anyone, namely

the category of goods representing the

public domain. Also, the classification o f

goods, particularly of non patrimonial

goods includes the goods belonging to a

community, called res universitatis, that,

being destined for public use, could not be

alienated, only made subject of

concessions.

Leaving behind the faraway ancient

history, we retrieve the importance of

classifying goods belonging to public

property in the more recent history of

France and early French law. French law

has a significant contribution to

crystallizing the conception of p ublic

domain even since the period of absolute

monarchy, when it was known as “Crown

Property” of “Crown Domain”, which,

however, was not distinctive from the

king’s private property, the two categories

overlapping. Thus, until the French

Revolution of 1789, the king remained

owner o f t he “ Crown Property” goods,

having the sovereign right to freely decide

in relation to these.

The Edict of Moulin (1566) introduced

the principle of public domain

inalienability; hence the goods of kings

were inalienable, as bei ng part of the

Crown Domain, in the sens e of state.

Nevertheless, the king’s property right

over the Crown Domain goods was

recognized, and significantly, not a simple

administration right.

The modelling process of public property

in successive historical eras has allowed

controversy on the polarity and criteria of

distinction b etween the public and private

domain.

The principle of inalienability is

reiterated as a particularity o f the public

domain and a consequence of the fact that

public property goods re dedicated either

to utilization or to public interest.

The other two aspects of judicial

character of private property, namely

imprescriptibility and unseizability follow