НИЙТИЙН ӨМЧИЙН ТАЛААРХ МОНГОЛ УЛСЫН ЭРХ ЗҮЙН ЗОХИЦУУЛАЛТ

With the emergence of paragraph 2 of Article 5 of the new Constitution of Mongolia, which provides that “the State recognizes all forms of both public or private property and shall protect the rights of the owner by law,” the legal foundations were laid down for the concept of property, different types and forms of property, and the content of property rights. A new lease of life was given to the concept of property in the legal system of Mongolia. However, when it comes to “public property”, many questions remain unaddressed in relation to the concept of public property, types of public property, the owner of public property, and the content of or limitations on public property rights. In particular, we are tempted to ask: Is public property the same as state property? Who owns public property? Does the owner have an absolute right? This article is an attempt to answer these questions which remain unclear and address the issues relating to the concept of public property in Mongolia. The concept of “public property” has the following common characteristics: - Public access or utilization; -Public property is controlled by the State, the local governments or other public law entities; and -Public property consists of things governed by public law rules. The Civil Code of Mongolia provides that public property may exist in the form of state property, local government property, religious property or communal property while state property is divided into “state property for public use” and “state’s own property.” It appears that state property for public use would be owned by the State Great Hural while state’s own property would be owned by the Government. Similarly, local government property for public use would be controlled by Hurals of Citizens’ Representatives (or their presiding members when Hurals are out of session) whereas local governments’ own property would be controlled by governors. If the term of religious property, which is not statutorily defined, is interpreted to mean the property of religious bodies or temples, such property would, then, be under control of their administrative organs. And if community property is similarly interpreted to mean the property of community organizations, such property would be under control of the governing bodies of legal persons under public law. The forms of public property, the corresponding types of public property, the owners of public property, and the content of ownership rights remain unclear or ambiguous under the current legal regulation. Moreover, Mongolian scholars and academics are not in agreement on the idea of the state being a property owner. The author argues that this idea of the state being a property owner cannot be completely rejected. It is argued that, unlike its counterpart in private law, the content of public ownership (or the right to possess, the right to use and the right to dispose) is intended to serve the "public interests" and at the same time, be limited by “public interests”. Finally, this article identifies the need for robust legal framework that revisits the forms of public property in Mongolia or introduces a new classification of public property. It is also suggested different classes of public property or things that correspond to those forms of public property should be identified and recognised within the legal framework. It is also argued that the content of ownership and the intended use of different forms or classes of public property should also be made clear.