engleski

Croatian property law between tradition and transition: A revival of a Roman principle superficies solo cedit

After World War II, as a part of the communist SFR Yugoslavia, Croatia adopted distinctive concept of collective property rights which had important consequences on the development of its legal system, gradually departing from the European legal tradition and taking over the essential features of the socialist legal circle. In order to achieve collective interests, the authorities sought to create a social, and therefore a legal order "from above" by marginalizing civil law in favour of public law. This transformation affected to the greatest extent property law, especially the traditional rule of the legal unity of immovables - everything permanently connected to the ground is considered a part of it and shares the same legal status as the ground - which originated in Roman principle superficies solo cedit. Disregarding this legal rule, common to all European civil codes, resulted in compromised land registry system and lack of legal certainty. Through reforms of the legal system, after declaring its independence in 1991, Croatia started the process of returning to the civil law roots and European identity, it once was a part of. Although the legal unity of immovables was re-established and all the requirements on the normative level were satisfied, the consequences of privatisation are still present in practice due to insufficient application of the law and atavism of socialist legal reasoning and mentality. Despite some misconceptions that the former socialist countries due to the communist legacy resemble a juridical wasteland, whose legal systems are supposed to be build from ground up, the aim of the following contribution is to analyse the challenges of a legal system in transition in its process of rebuilding the civil-style mode of legal thought by returning to its Roman legal foundations.

Property Law; Superficies solo cedit; Transition; Roman Legal Tradition

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