In rem jurisdiction

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In rem (Latin, "power about or against 'the thing'"[1]) is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).

United States[edit]

Within the U.S. federal court system, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court's jurisdiction. The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law against a vessel to satisfy debts arising from the operation or use of the vessel.

Within the American state court systems, jurisdiction in rem may refer to the power the state court may exercise over real property or personal property or a person's marital status. State courts have the power to determine legal ownership of any real or personal property within the state's boundaries.

A right in rem or a judgment in rem binds the world as opposed to rights and judgments inter partes which only bind those involved in their creation.

Originally, the notion of in rem jurisdiction arose in situations in which property was identified but the owner was unknown. Courts fell into the practice of styling a case not as "John Doe, Unknown owner of (Property)", but as just "Ex Parte (property)" or perhaps the awkward "State v. (Property)", usually followed by a notice by publication seeking claimants to title to the property;[citation needed] see examples below. This last style is awkward because in law, only a person may be a party to a judicial proceeding – hence the more common in personam style – and a non-person would at least have to have a guardian appointed to represent its interests, or the interests of the unknown owner.[citation needed]

The use of this kind of jurisdiction in asset forfeiture cases is troublesome because it has been increasingly used in situations where the party in possession is known, which by historical common law standards would make him the presumptive owner, and yet the prosecution and court presumes he is not the owner and proceeds accordingly. This kind of process has been used to seize large sums of cash from persons who are presumed to have obtained the money unlawfully because of the large amount, often in situations where the person could prove he was in lawful possession of it, but was forced to spend more on legal fees to do so than the amount of money forfeited.[2]

Examples[edit]

Some examples of in rem cases:[3][4]

China[edit]

According to Professor Jianfu Chen of La Trobe University, "officially, the drafting of the 2007 Law of Rights in rem started in 1993, . . . [but] rights in rem have always been part of the effort to draft a civil code in the PRC."[5] "Rights in rem are defined to mean the rights by the right-holder to directly and exclusively control specific things (property); it includes ownership rights, usufruct and security interests in property."[6]

See also[edit]

  • Jus ad rem, a term in civil law meaning "a right to a thing", distinguished from jus in re, which is dominion over a thing as against all persons.

References[edit]

  1. ^ Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN: Thompson/West. p. 362. 
  2. ^ LII Backgrounder on Forfeiture
  3. ^ The United States vs. Money? thenuts, MetaFilter, March 22, 2009
  4. ^ United States v. Forty Barrels and Twenty Kegs of Coca-Cola, freethought forum
  5. ^ Chen, Jianfu (2008). Chinese Law: Context and Transformation. Boston: Martinus Nijhoff Publishers. p. 374. 
  6. ^ Chen 2008, p. 379. See Article 2 of the Law on Rights in rem