КОНСТРУКЦІЇ НАБУВАЛЬНОЇ ДАВНОСТІ В ІСТОРИКО-ПРАВОВІЙ РЕТРОСПЕКТИВІ ТА DE LEGE FERENDA

The article analyses the historical legal constructions of usucapio and longi temporis praescriptio, highlighting their influence on modern civil law systems. Usucapio was intended to resolve property issues for bona fide owners, while longi temporis praescriptio aimed to return neglected property to economic circulation. In the Ukrainian legal context, the author emphasises the importance of adapting these concepts to Ukrainian law, especially given the challenges posed by war, which often leaves property unattended. The current Ukrainian Civil Code (Article 344) contains elements of both Roman law concepts and allows a person who possesses property openly and continuously for a certain period (10 years for immovable and 5 years for movable property) to acquire ownership, provided certain conditions are met. The article argues that the legal conditions for the acquisition limitation period in Ukrainian law are incomplete and require clarification. It proposes that qualified possession should be defined. The author suggests defining bona fide possession as possession where the possessor did not know and should not have known at the time of acquiring possession that the transferor had no property rights. The article recommends that the law distinguish between bona fide acquisition by prescription and prescription of possession itself. The author discusses the need for a special regime for registered and unregistered property rights. He proposes introducing the concept of off-book prescription, which allows the acquisition of ownership even if the acquirer knew the property belonged to another person, provided the legal requirements are met. He suggests that ownership acquired by prescription should be registered on the basis of a court decision, especially in cases where the former owner is deceased, no longer exists, or has renounced ownership. The article concludes that, while usucapio and longi temporis praescriptio share the formal objective of acquiring ownership after a certain period, they differ in their functions. It is advisable to enshrine both constructions – acquisition in good faith by prescription and prescription of acquisition – in Ukrainian civil law to meet practical needs and align with European legal traditions.