Modern Ukrainian commercial law started to develop following the break-up of the Soviet Union in August 1991 and the reemergence of Ukraine as an independent democratic state. As a result of the break-up, in 1991 the new state of Ukraine inherited the jurisprudence, institutions and government of the former Ukrainian Soviet Socialist Republic. While Ukraine quickly shed its Soviet past by changing the communist names of streets and institutions, the transition was not as easy when it came to substantive changes in Ukrainian jurisprudence and legal thinking. Ukraine needed to develop its own system of law to establish an open market and promote democracy. Developments in property law, and particularly mortgage law, played an important role in the market economy’s development. Ukraine’s efforts in adapting its legal system to conform to the requirements of a new market economy are undeniably substantial. However, the task of creating a system of law that deals with security transactions is an arduous one. To make things complicated, Ukraine was starting from a clean slate. Unlike the American law of mortgages that derives from fourteenth and fifteenth century English common law, and therefore has had the luxury of more than six hundred years of development, Ukraine had no foundation for developing its real estate jurisprudence. There was no need for mortgage laws during the Soviet rule because real property belonged to the State and could not be sold or rented by private persons. Despite this lack of prior experience, Ukraine is currently developing its mortgage jurisprudence and the market is ready for it. The real estate market is growing with incredible speed, especially in the capital of Ukraine, Kiev. In the last few years, land has been one of the most cost effective and reliable investments in Ukraine. However, the system is still immature and needs a lot of improvement. Financing of housing, land, commercial land, and buildings is rare. Inconsistencies and ambiguities in laws and lack of experience with their implementation hinder development of secured transactions. To create a healthy investment environment, Ukraine needs to better regulate its land market by establishing comprehensive and stable rules. Although Ukraine is a civil law country, the Unites States has influenced many of its new legal and economic developments. The purpose of this Comment is to present an in-depth discussion and evaluation of the history and modern state of property and mortgage laws in Ukraine. This Comment will use American mortgage laws to provide some answers to the existing uncertainties in the Ukrainian jurisprudence. While no claim is made that American mortgage laws and principles are superior to those of any other country, the American model has been developed and implemented over the course of more than two hundred years, and it may provide some answers to the evolving Ukrainian legal system. Part II of this article starts by examining the background of the mortgage concept. It then proceeds to discuss the history of property and mortgage laws in Soviet Ukraine. It next discusses the modern state of property and mortgage affairs in Ukraine. Part III focuses on the law of Ukraine On Mortgage, the current Ukraine mortgage statute, and provides a detailed discussion of its shortcomings.
Development of Ukrainian Real Property and Mortgage Law: The American Perspective,
San Diego Int'l L.J.
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