The principle of publicity of the pledge of property rights: problems of law enforcement practice and legislative risks

This article examines the issues related to the implementation of the principle of publicity concerning the pledge of property rights in modern Russian civil law (the subject of the study). The object of the study is the current legal regulation of the mechanism for ensuring the effect of «visibility» («publicity») of the pledge of property rights. The main objective of the study is to identify the shortcomings of the current mechanism for ensuring the effect of «visibility» («publicity») of collateral for property rights in order to further develop proposals to improve the accounting system for collateral encumbrances. The study examines in detail such aspects of the topic as the impact of the principle of publicity on the protection of the rights of participants in collateral legal relations and on ensuring the stability of civil turnover. Special attention is paid to the analysis of the existing mechanism for accounting for collateral encumbrances of property rights and the identification of systemic problems in the field of judicial and law enforcement practice. The methodological basis of the study is founded on the interconnected application of general scientific, specialized (comparative legal and formal-legal), and practical (comparison, description, modeling) research methods. The scientific novelty of the study lies in substantiating the necessity of transitioning from a declaratory to a constitutive model of registration of pledges of property rights, as well as in developing specific measures to reform the system of accounting for collateral encumbrances. During the research, systemic problems in the implementation of the principle of publicity regarding the pledge of property rights were identified, namely: the notarial registry contains incomplete information about all existing collateral relations, which is due to the legislator’s choice of a declaratory (confirmation) approach to the registration of pledges of property rights; the existence of «hidden pledges»; duplication of information across several disparate public registers; unreliability of entries about pledges of property rights due to the lack of verification of information when registering collateral encumbrances in the notary registry, etc. In conclusion, the study concludes that consistent reforms of the registration system are necessary in order to effectively ensure the principle of publicity of the pledge of property rights.