WŁASNOŚĆ W KONSTYTUCJI III RZECZYPOSPOLITEJ
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Date
2002
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Wydział Prawa i Administracji UAM
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OWNERSHIP IN THE CONSTITUTION OF THE III REPUBLIC OF POLAND
Abstract
One can distinguish two main meanings of the notion of ownership under the terms of the
current Constitution: the narrow one, when the Constitution legislator speaks of the right to ownership, other property rights, right of succession (art.64, points 1 and 2), and limiting ownership
in the civilistic sense (art.64, point 3); in its broad sense the term collectively refers to all rights of
ownership - in art. 21 of the Constitution. Since art. 21 point 1 of the Constitution introduces the
principle o f ownership and succession, one should consider that the guarantees resulting from this
principle apply not only to ownership in the strict sense but also other rights of ownership in the
broad sense of the term. Art. 21 of the Constitution secures the guarantee of ownership and succession
protection and regulates the expropriation conditions; one could therefore assume that
expropriation encompasses cases of deprivation or disproportionate limitation of both rights of
ownership and other property rights. These rights, like the rights of ownership, can be expropriated
only on the conditions mentioned in art. 21 point 2 of the Constitution.
The term „ownership” used in art. 21 of the Constitution (in the broad sense) is a synonym of
property (art. 44 of the Polish Civil Code). One cannot agree with the view that ownership in the
broad sense encompasses only some property rights (e.g. only those rights which are part of the
notion o f property and which are exclusive for their bearers).
When interpreting the mutual relation of art. 21 and 64 o f the Constitution, if one accepts the
arguments for the broad understanding of the term „ownership” in art. 21 (as a synonym of property)
and narrow understanding in art. 64, then one should accept that this relation is not complementary,
since the notion of ownership in art. 21 encompasses the notion of right o f ownership
and other property rights from art. 64, but rather this relation presents the right of ownership in
other categories.
On the issue of „essence of ownership” (in the strict sense), one undeniably cannot exclude any
right from this same construction of the right of ownership, while any external exclusion (limitation)
is only possible if the previous rights are restored when the exclusion is lifted. Besides,
without the full damages one cannot limit the owner in such a way as to grant him a title with no
real rights connected with it.
In the Polish legal system the essence of ownership in the strict sense is best expressed in
art. 140 of the Civil Code. This right would be violated if the introduced limitations infringed upon
the basic freedoms comprising this right and impeded its due function in the legal order founded
upon the guidelines included in art. 20 o f the Constitution.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 64, 2002, z. 2, s. 179-192.