Natura przywilejów osobowych i rzeczowych (kan. 78 §§ 1-3 KPK)

Abstract

This article focuses upon the nature of personal and property privileges. As the author’s analysis shows, the legislature responded to the question of the nature of privileges in can. 78 §§ 1-3 CIC. The legal definition of privilege codified in can. 76 1 CIC concluded, among other things, that privilege is determined by the decision of a competent authority. As a rule, this act is permanent. It should be noted, however, that can. 76 1 allowed for the presumption of evidence to the contrary. This means that the permanence of a decision of this type is of a conditional nature. In other words, it is not an essential element of this institution. Can. 78 §§ 2-3 CIC, on the other hand, codifies the dispositions concerning the cessation of two principle categories of privileges, i.e. personal and property privileges. The cessation of both types of privileges is of a natural character. A personal privilege granted to an individual is extinguished with the person’s death and is not inherited by the heirs whereas a privilege concerning a legal person ceases when the conditions codified in can. 120 § 1 CIC are met. Finally, a property privilege becomes extinguished through the complete destruction of the thing or place. Still, in the case of a local privilege, the legislature, relying on legal fiction, allows for the revival of a privilege if the damaged site is restored within fifty years. In conclusion, the author points out that normative findings regarding the nature of personal and real privileges codified in can. 78 § 1-3 CIC arise from positive law. The legislature establishing them often bases it on the mechanism of legal fiction.