Lex Commissoria: World Experience and Ukrainian Realities

The scientific article is devoted to the analysis of the world experience in the development of the institution lex commissoria, i.e. a contractual condition that allows a creditor (pledgee) in case of non-fulfillment by the debtor (pledger) of his obligation to acquire ownership of the pledged item out of court. The relevance of the study lies in the need to eliminate legal uncertainty in the mechanism of foreclosure on mortgaged property in Ukraine by adapting modern European approaches. The purpose of the article is to examine the genesis and development of lex commissoria in various legal systems, to analyze the state of legal regulation and practical application, as well as to identify directions for improving the institution of foreclosure on mortgaged property based on an agreement on satisfying the mortgagee’s claims in Ukraine. The development of this institution in Roman law, the law of continental Europe, England, the USA and the European Union is studied. The tendencies of development of lex commissoria are determined through the prism of ensuring the stability of civil turnover and the need to protect the mortgagee as an unprotected party to the relevant legal relations. The main shortcomings of the legal regulation and practical application of the institution of lex commissoria in Ukraine have been studied , in particular, on the basis of the analysis of such aspects as determining the amount of debt when foreclosing on the subject of collateral, valuation of collateral property, as well as circumstances that make it impossible or difficult to apply this method of foreclosure on the subject of collateral, such as moratoriums, encumbrances, obstacles in the use of property. It is concluded that that Ukrainian legislation in this area is not based on any of the models that have been developed in the legal systems of other countries, and does not provide the necessary balance of interests of creditors and collectors. The study uses historical, comparative-legal, formal-logical and system-structural methods of scientific cognition. It is proposed to implement in Ukrainian legislation the most progressive approaches that would ensure both market stability and integration into the global financial system, as well as consumer protection