ON THE RELATIVITY OF THE LIMITATION OF THE SUBJECT OF DISCUSSION AND EVIDENCE IN PROCEEDINGS DUE TO INTERFERENCE WITH THE POSSESSION

Abstract

Independent protection of the possession, regardless of whether its existence is
based on law or not, is its only universal legal effect, regardless of its types and qualities.
The right to protection of the possession is primarily realized in a specific court procedure.
Almost all modern legal systems, which are built on the Roman legal tradition, provide the
holder with the possibility of exercising the right to the protection of the possession through
the courts in a special procedure. The protection of the possession only makes sense if the
interference with the possession is being removed, i.e. the possession is being established,
urgently and effectively. Only in that case can judicial protection of the possessions fulfill
the basic goal of the right to protect the state's property - prevention of arbitrary actions, that
is, arbitrary changes in factual relations regarding the object. The speed and effectiveness of
the court procedure for the protection of the possession are also being contributed by the
limitation of the subject of discussion and evidence. Discussions in this process are limited
only to the search and proving of the facts of the last state of the possession and the
resulting nuisance, and the hearing about the right to the possession, the legal basis of the
possession, the properties of the possession (conscientiousness and legality) as well as
requests for compensation are excluded. However, this does not mean that the
aforementioned two facts are the only subject of discussion and evidence. The legal
provisions on the limitation of the subject of discussion and evidence cannot be consistently
implemented. In the paper, we listed only some of those legal and factual issues and thus
tried to illustrate the relativity of the mentioned legal provisions and indicated some
proposals de lege ferenda.