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of July 31, 2013 No. 423-0-2-13/11

The Ministry of Justice considered the address <...> concerning provision of explanation of the term "other ownership of person" used in Art. 233 of the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure), in connection with its ambiguous interpretation in case of law enforcement and within competence the following reports.

The Ministry of Justice is the central executive body operating according to Konstitutsiiya, the laws of Ukraine and the Regulations on the Ministry of Justice of Ukraine approved by the Presidential decree of Ukraine of 06.04.2011 No. 395. According to the specified acts Ministry of Justice provides explanations on the questions connected with activities of the Ministry, its territorial authorities, companies, organizations and organizations relating to the sphere of management of the Ministry and also concerning acts which are issued to them and has no powers concerning provision of explanations on the questions raised in the address.

In turn, according to provisions of part two of Art. 147 of the Constitution of Ukraine and item 4 of Art. 13 of the Law of Ukraine "About the Constitutional Court of Ukraine" (further - the Law) official interpretation of the Constitution and the laws of Ukraine gives the Constitutional Court of Ukraine.

The basis for the constitutional address of rather official interpretation of the laws of Ukraine according to provisions of Art. 94 of the Law is availability of ambiguous application of their provisions by courts of Ukraine, other public authorities if the person of law on the constitutional address considers that it can bring or led to violation of its constitutional rights and freedoms.

At the same time we inform that according to part one of Art. 233 of the Code of Criminal Procedure nobody has the right to get into housing or other ownership of person with any purpose, except as soon as in the voluntary consent of person who owns them, or based on the resolution of the investigative judge, except the cases established by part three of this Article.

Other ownership of person is understood as the vehicle, the parcel of land, garage, other buildings or rooms of household, office, economic, production and other purpose, etc. which are in ownership of person (part two of Art. 233 of the Code of Criminal Procedure).

According to Art. 317 of the Civil code of Ukraine (further - the Civil Code of Ukraine) to the owner possesses rights of possession, uses and orders of the property. Content of the property right is not influenced by residence of the owner and the location of property.

Persons of law of property according to part one of Art. 318 of Civil Code of Ukraine are the Ukrainian people and other participants of the civil relations, certain Art. 2 of Civil Code of Ukraine.

Physical persons and legal entities can be owners of any property, except for separate types of property which according to the law cannot belong to them. Structure, quantity and property value which can be in property of the physical persons and legal entities which are not limited (parts two, third Art. 325 of Civil Code of Ukraine).

According to Art. provisions 397, of 398 Civil Code of Ukraine the owner of alien property is person who actually holds it at itself.

The right of possession someone else's property can belong at the same time to two or more persons.

Actual possession by property is considered lawful if other does not follow from the law or is not established by the judgment.

The right of possession arises based on the contract with the owner or person to whom the property was transferred by the owner, and also on other bases established by the law.

It should be noted that in the theory of the civil law understand the opportunity which is legally provided to the owner to have property in the direct physical or legal maintaining, in the field of the actual economic or other impact as ownership.

At the same time the owner can give the property to temporary ownership of other persons, including under agreements of storage, lease (hiring), free use, etc.

Besides, the right of possession can arise also on other legal basis, in particular by law, wills, the judgment.

According to parts two, third Art. 311 of Civil Code of Ukraine penetrations into the dwelling or into other ownership of physical person, carrying out in it survey or search can take place only on the motivated judgment.

In the urgent cases connected with rescuing of life of people and property or with direct prosecution of persons suspected of crime execution, other procedure for penetration into the dwelling or in other ownership of physical person, carrying out visit and search in them can be established by the law.



O. Lukash

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