Dominio público y posesión: hacia el cambio de un paradigma.

Abstract

Possession and public property appear to exist as parallel concepts in legal theory and legislation, with the understanding that each belongs to a different sector of the legal system. This, however, is not correct, and it is unfortunate that the new Patrimony Act, in its integration efforts, does not take care of the link existing between these concepts, using the same approach followed with regard to registration matters. This study is thus a short contribution towards overcoming this tendency, that the modernization of our property law, public and private, requires. With this purpose, this study begins with the influential teachings of IHERING, who uses public goods as a case in which his objective theory, opposed to animus domini as a central element of possession theory, is applicable. From that basis, the study continues with an effort to overcome the traditional public domain theory, which has been absolutely disconnected from superior legal concepts such as good faith and legal appearance. The conclusion is reached that the legal system should not do away with knowledge about legal relationships, by using completely separated categories, even in the case of goods affected to public use or services. This would be the purpose of the abovementioned modernization.