QUESTION: What does property mean and what does law have to do with it?
ANSWER: In accordance with the 1993 Constitution. in the Russian Federation, private, state, municipal and other forms of property are recognized and protected equally (clause 2 of Article 8 and clause 2 of Article 9).
When they talk about property, they first of all mean who owns this or that property (who appropriates it). And the ownership of property by citizens, legal entities, and the state is secured by law (the Constitution, the Civil Code of the Russian Federation, etc.). In other words, which entities can have property and what property can be in their ownership is established by law.
Ownership of a thing or property means that a citizen (or legal entity) has the authority to own, use and dispose of any property. This means that a given person has the right of ownership of a thing, which is complex in nature and consists of the right to own the thing, the right to use it and the right to dispose of it.
It is important to understand that the powers to own, use and dispose of property are only legal (i.e., provided by law) opportunities. Therefore, they must be distinguished from possession - the actual presence of a thing by a person, use - the actual exploitation of a thing, the extraction of its useful properties, disposal - specific actions to determine the legal fate of a thing. Why is it important?
The right of ownership is most often exercised by the owner himself. However, the owner may not actually own the property. Possession by a non-owner can be legal or illegal.
Legal possession is possession based on a legal basis (title). Without a legal basis, the owner is not recognized as legal; he does not have the right of ownership and, therefore, the right to restore the violated possession (for example, the owner of a bicycle lent it to a friend for several days. This means that during this time the latter has the right to own and use the bicycle. In this situation, it is not the owner who owns and uses the bicycle, but does so with the consent of the owner, i.e. legally according to his will). The legal owners, in addition to the owner of the thing, include persons who have received ownership rights from the owner under an agreement - tenants, trustees, etc.
If a person who is not the owner of a thing actually possesses it without the right of ownership based on an agreement or law, then such possession is illegal. Illegal possession, in turn, can be done in good faith or in bad faith. There are strict legal rules for assessing adverse possession as bona fide or in bad faith. This is largely due to the nature of acquiring property ownership.
Bona fide purchasers are recognized as persons who acquired possession of things under circumstances when they did not know and could not know that they were acquiring them from an unauthorized person. Those who knew or should have known about the acquisition of property from an unauthorized person are recognized as dishonest purchasers.
The right of use can be defined as the ability to extract useful properties and income from a thing, based on the permission of the law.
As in cases of possession, a distinction is made between legal and illegal use depending on whether it is based on legal title or not.
Right of disposal. In the course of exercising his right of ownership, a person can alienate the property belonging to him, make various changes to it, encumber it with a pledge, rent it out, etc. The performance of such actions constitutes the content of the most important of the owner’s powers - the right of disposal, by exercising which the owner can make decisions on the permanent (sale) or temporary (rent) disposal of a thing from his property or change the legal status of a thing without removing it from economic use (mortgage ). Administrative powers are thus manifested in the execution by the owner of various transactions through which property is transferred into possession, ownership, economic management, operational or trust management of another person.
Trust management. The transfer of one's property into trust management to another person includes all elements of property rights - the rights of possession, use and disposal. However, the act of transferring the right of trust management to the trustee does not lead to the deprivation of the owner's title to the property.
QUESTION: Can property be owned by more than one person? What is common property? What types does it come in?
ANSWER: The right of common property is a set of legal norms that regulate relations between two or more persons regarding property that they own, use and dispose of jointly. Therefore, participants in common property are usually called owners.
A distinctive feature of common ownership is that the property belongs to several persons jointly (with or without indicating shares).
The right of common ownership arises from a contract, inheritance or other grounds provided for by civil law. Thus, common property can arise in the course of joint economic activity through the creation or acquisition of common property of its participants. Spouses also have joint ownership of property acquired during marriage.
2) joint property.
Shared ownership is considered to be common property in which the property constituting its object is divided between the participants into specific shares. The main distinguishing feature of shared ownership is that already at the moment of its origin the shares (parts) belonging to each of the owners in the common property are designated. The criteria for such division (or designation) are established by agreement of the owners or determined by law. If it is impossible to determine shares using these criteria, the shares are assumed to be equal (Article 245 of the Civil Code of the Russian Federation). However, the assumption (presumption) of equality of shares not designated in shared ownership is refutable (i.e., it can be challenged). The presumption of equality of shares can be refuted by arguments that must be proven (for example, an agreement to change shares in proportion to the contribution of each owner to the increase in common property).
With shared ownership, therefore, each of the owners owns a share in the right, and not a share in the thing (material object).
Joint ownership is a type of common property in which the participants have shares that are not predetermined in the mass of the common property. The division of such property into shares is carried out only in the event of separation of a participant or in the event of termination of common ownership. A participant in common shared ownership has the right to allocate his share, and a participant in common ownership has the right to determine and allocate a share (this right also belongs to the creditor of a participant in common ownership).
The joint ownership regime applies to: -
property of spouses acquired during marriage -
common property of members of a peasant (farm) enterprise, -
property of persons living in privatized apartments.
Ownership, use and disposal of jointly owned property is subject to several rules: -
ownership and use of such property is carried out by the participants jointly by their consent; -
transactions for the disposal of this property, no matter which of the participants they were made, are assumed to be completed by mutual consent of all participants. The remaining participants (owners) can challenge such a transaction on the grounds of lack of mutual consent only if they prove that the other party knew or at least could not have been unaware of the lack of general consent (Article 253 of the Civil Code of the Russian Federation).
QUESTION: How does the acquisition of property rights occur?
ANSWER: The right of ownership can be acquired by virtue of legal facts with which the law connects its occurrence. These legal facts are called grounds, or methods of acquiring property rights. 1.
The owner of the property owns the results of economic and other use of his property, including products, fruits and other income (for example, the discovery of an item, the discovery of a treasure). 2.
The right of ownership of the acquirer of property under an agreement arises from the moment of transfer of the thing, unless otherwise provided by law or agreement. Transfer is recognized as the delivery of things to the purchaser, as well as delivery to a transport organization for sending to the consumer and delivery to the post office for sending things to the purchaser, or transfer of a document of title to the things. 3.
Citizen or entity, who is not the owner of the property, but who conscientiously, openly and continuously owns as his own real estate (i.e. an object the movement of which is impossible without disproportionate damage: a land plot, a separate water body, etc.) for at least 15 years or otherwise property of at least 5 years, acquires the right of ownership of this property (acquisitive prescription).
QUESTION: What can citizens own by right of ownership? ANSWER: A citizen may own by right of ownership: -
residential buildings, apartments, dachas, garden houses, garages, objects household and personal consumption; -
cash, stocks, bonds, checks, bills and other securities; -
enterprises, property complexes in the field of production of goods, consumer services, trade, processing or other business activities, buildings, structures, equipment, transport and other means of production; -
any other property for consumer or industrial purposes, except for certain types of property that, in accordance with the legislation of the Russian Federation, cannot belong to a citizen.
QUESTION: What can be owned by legal entities?
ANSWER: Legal entities (societies and partnerships, cooperatives, public and religious associations, charitable and other foundations, etc.) are the owners of property transferred to them by the founders (participants, members), as well as received as a result of their own entrepreneurial activities and through other grounds that do not contradict the law.
Property as an economic category is the relationship between people and their collective entities regarding the property they own. Due to these relations, based on the distinction between “one’s own” and “them’s,” some persons own property and protect it, while others must respect other people’s property and not cause harm to the owner. Property relations existed even under the primitive communal system, i.e. when there was neither state nor law. In order to survive, people appropriated the gifts of nature, domesticated animals, and made equipment for fishing and hunting. And if someone from another tribe tried to take away their property, they defended it.
Subsequently, with the development of productive forces, the division of labor occurred, and it became possible to appropriate not only natural products of nature, but also goods and values created by people in the production process.
The essence of property relations is the ownership of material goods, primarily the means of production. The content of property consists of relations of ownership, use, and disposal of property belonging to a person with his own authority and at his own discretion. With the advent of the state and law, the need arose to consolidate the property relations that had developed in society and to legally protect the interests of owners.
It is necessary to distinguish between property rights as an objective right and as a subjective right.
Property rights in the objective sense are a set of legal norms governing property relations. The group of these norms forms Institute of Property Law. In the Civil Code, the rules on property and other property rights are grouped in section. II, in ch. 13 — 20. The right of ownership in the subjective sense is a legally secured ability of a person (subject) to own, use and dispose of property belonging to a person (subject) with his own authority, at his own discretion, within the limits established by law.
Subjective ownership always belongs to a specific person for specific property. It arises on the basis of certain legal facts, for example, as a result of inheritance, donation of property, acquisition of it on the basis of a paid transaction, etc.
Right of use- the ability protected by law to extract it from a thing beneficial features, receive fruits and income from it. Individuals, using property, satisfy their material and spiritual needs: wear clothes and shoes, live in their apartments and houses, drive cars, etc. Legal entities - commercial organizations process raw materials, materials, and produce corresponding goods from them, i.e. use the beneficial properties of this property through productive consumption of it as raw materials.
Receiving fruits, harvest with land plot, the owner appropriates them, realizing his right of use.
The actual use of someone else's property without a legal basis is an unlawful act.
Right of disposal- the ability protected by law to determine the legal fate of a thing: to transfer it to other persons for ownership, as well as for derivative possession and use, and sometimes for disposal. Thus, the state, represented by the competent authority, creates an enterprise, endowing it with the right of economic management: this entity (enterprise) owns, uses, disposes of state property, but within limited limits determined by the owner (Article 114.295 of the Civil Code of the Russian Federation).
The act of disposing of property is a legal fact, most often it is an agreement: purchase and sale, donation, etc.
The owner can destroy something that belongs to him: for example, dismantle an old motorcycle for spare parts.
Destruction of one's own thing is a legal action - a unilateral transaction that terminates ownership. It should be distinguished from an act of consumption (for example, consumption of food), which is not specifically aimed at terminating property rights and belongs to the category of legal acts.
Acquisition and termination of ownership
Most often, on a derivative basis, the right of ownership arises at the will of the previous owner, who transfers the thing into ownership under a contract of sale, gift, rent, etc.
Based on the specified criterion - the presence or absence of succession - the initial methods of acquiring property rights include:
a) acquisition of ownership of new things appearing for the first time: a thing created, manufactured for oneself, in compliance with the established procedure for such acquisition (Article 218 of the Civil Code of the Russian Federation); processing of someone else's thing (the one who owns the processed resources becomes the owner of the things made from them, and the one who was honestly mistaken in believing that a thing, for example a canvas, belongs to him, and created, using this thing, a more valuable thing, for example a painting , becomes the owner of a more valuable thing, but is obliged to compensate the owner of the original material for its cost) (Article 220 of the Civil Code of the Russian Federation);
b) acquisition of ownership rights to things that previously had an owner, but he abandoned them or lost the right to them, or is unknown and could not be found. In these cases we're talking about about ownerless property: abandoned by the owner, lost by him. Thus, things that are suitable for use are sometimes thrown into landfills. By throwing away a thing, the owner commits actions indicating a waiver of ownership rights (Article 236 of the Civil Code of the Russian Federation).
In order for a citizen to act as an owner, no special registration is required. If he intends to engage in entrepreneurial activity, he must register with in the prescribed manner as an individual entrepreneur, and not an owner, exercising the right to use his abilities for entrepreneurial activities (Part 1, Article 34 of the Constitution of the Russian Federation, Article 23 of the Civil Code of the Russian Federation).
At the same time, ownership of real estate by a citizen requires state registration, regardless of the purposes for which they are used that do not contradict the law (Article 131 of the Civil Code of the Russian Federation).
When a citizen creates a legal entity (independently or jointly with others), regardless of its organizational and legal form, the citizen transfers a contribution to the property of the legal entity, and he himself acquires rights of obligation in relation to it (Article 48 of the Civil Code of the Russian Federation).
The range of objects that citizens can own is outlined by the negotiability of the property (Article 129 of the Civil Code of the Russian Federation). In relation to its negotiability, the following applies: general principle- everything is permitted that is not prohibited by law and is not limited by it. You can, for example, have as many cars, apartments, banknotes and other property as you like, as long as it is not withdrawn from civil circulation.
Thus, it is impossible to have privately owned subsoil plots that, according to the Law of the Russian Federation “On Subsoil” (as amended Federal Law dated March 3, 1995) are the exclusive property of the state. Certain objects can be acquired as property with a special permit (for example, weapons).
A number of restrictions have been established related to the intended use of property - for example, industrial production cannot be located in residential premises, it is used only for citizens to live there (Article 288 of the Civil Code of the Russian Federation), land plots are used strictly for their intended purpose (Article 285 of the Civil Code of the Russian Federation) . When exercising a right in violation of the law, various sanctions are applied, including penalties (for example, confiscation in judicial procedure apartments, land for sale with public auction- Art. 293, 285 of the Civil Code of the Russian Federation), civil confiscation as a consequence of the invalidity of the transaction (Article 169 of the Civil Code of the Russian Federation), refusal to protect the right (clause 2 of Article 10 of the Civil Code of the Russian Federation).
The grounds for the emergence and termination of citizens' property rights are varied; their classification coincides with that given in § 1 of this chapter. Some of the initial reasons include:
a) construction of buildings on a plot of land allocated to a citizen for these purposes in compliance with urban planning and construction norms and rules (Article 222 of the Civil Code of the Russian Federation). A structure erected in significant violation of these rules, without the established permit, on someone else’s land plot, is an unauthorized structure, ownership rights to it do not arise, the unauthorized structure is subject to demolition by the person who created it or at his expense;
b) the creation of things in a citizen’s household, including their creation in the process of carrying out entrepreneurial activities.
Derived bases are:
- receiving remuneration for work performed under an employment agreement (contract) and civil transactions, including transactions made in the course of business activities;
- receiving interest on bank deposits, income from organizations with which a citizen is bound by rights of obligation, for example, from a production cooperative, a general partnership of which he is a participant (member), dividends;
- receipt of property under a contract of gift, purchase and sale, etc.;
- receiving property by inheritance by law or by will.
Subjects of property rights of legal entities in accordance with clause 3 of Art. 213 of the Civil Code of the Russian Federation recognizes commercial and non-profit organizations (except for state and municipal enterprises, as well as institutions financed by the owner). Their range is unusually wide: these are business societies and partnerships, production and consumer cooperatives, public and religious organizations (associations), associations and unions, as well as other organizations provided for by law.
The ownership of legal entities is characterized by the following most significant features.
First of all, it is the legal entity that is united and sole owner property belonging to him. The founders (participants, members) of a legal entity to its property either have rights of obligation, if we are talking about business companies and partnerships, production and consumer cooperatives (clause 2 of article 48 of the Civil Code of the Russian Federation), or have no property rights at all, if we are talking about on public and religious organizations (associations), associations and unions (clause 3 of article 48 of the Civil Code of the Russian Federation).
A legal entity owns property transferred to it as a contribution (contribution) by its founders (participants, members), as well as produced and acquired by a legal entity for other reasons in the course of its activities (clause 3 of Article 213, clause 1 of Art. 66 Civil Code of the Russian Federation).
Legal entities, like other owners, have the right to take any actions in relation to their property that do not contradict the law, other legal acts and do not violate the rights and legally protected interests of other persons. At the same time, non-profit organizations endowed with special legal capacity are more limited in the exercise of the owner’s powers to own, use and dispose of property than commercial organizations with general legal capacity. This is directly emphasized in paragraph 4 of Art. 213 of the Civil Code of the Russian Federation, according to which such non-profit legal entities as public and religious organizations (associations), charitable and other foundations have the right to use property owned by them only to achieve the goals provided for by their constituent documents.
Both with general and special legal capacity, the property right of a legal entity may be limited by law. The Civil Code of the Russian Federation, for example, provides for the possibility of limiting the right of a legal entity to own certain types of property, which can only be in state and municipal ownership (clause 3 of Article 212). This includes property withdrawn from circulation or limited in circulation (Article 129 of the Civil Code of the Russian Federation), for example natural medicinal resources ( mineral water, therapeutic mud, etc.).
The object of ownership of a legal entity can be any property - both movable and immovable (with the exception of property that, in accordance with the law, is classified as federal, other state or municipal property). This could be: enterprises, land plots, buildings, housing stock, equipment, cash, etc. At the same time, the range of objects of such property is different for commercial and non-profit organizations: the range of objects of property rights of non-profit organizations is narrower than for commercial ones. It includes only the property necessary to achieve the goals of the organization. Trade unions, for example, have the right to own property that they need to fulfill their statutory goals of representing and protecting the social and labor rights and interests of their members.
In relation to property that, according to the law, may be owned by a legal entity, clause 2 of Art. 213 of the Civil Code of the Russian Federation establishes a rule on the inadmissibility of cost and quantitative restrictions on objects of property rights of legal entities. For example, a joint stock company that is not a motor transport enterprise may own cars of any value and in any quantity. Exceptions regarding cost or quantitative restrictions may be established by federal law, but only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and state security.
The grounds for the acquisition and termination of property rights of legal entities are the general grounds provided for in Chapter. 14 Civil Code: civil transactions, association of property, its creation in the process production activities and so on. At the same time, according to paragraph 3 of Art. 212 of the Civil Code of the Russian Federation, the law may establish the specifics of the acquisition and termination of property rights of legal entities. Thus, the sources of formation of the property of a charitable organization can be charitable donations, revenues from state and local budgets, volunteer labor and other legal facts not related to common grounds acquisition of property rights.
Let us dwell on the characteristics of property rights of certain types of legal entities.
1. Ownership rights of business companies and partnerships.
Content and exercise of property rights. Business companies and partnerships, being commercial organizations, have the right, at their own discretion, to carry out any actions of ownership, use and disposal in relation to their property that do not contradict the law and do not violate the rights and legally protected interests of other persons. For example, according to Art. 575 of the Civil Code of the Russian Federation in relations between commercial organizations, the disposal of property in the form of donation is not allowed, with the exception of ordinary gifts.
The most important grounds for acquiring property rights in business companies and partnerships are: socialization of property, its creation in the process of entrepreneurial activity, civil law transactions.
Socialization of property is carried out by making contributions by the founders (participants) to the share or authorized capital. The contribution can be either property in kind (buildings, structures, equipment, etc.), or cash, securities or property rights (right to use office space) or other rights that have a monetary value (for example, the right to use a computer program).
The objects of property rights of business companies and partnerships are both property transferred as contributions or contributions (unless it is transferred for use on the basis of an agreement), and produced or acquired for other reasons, for example, from the placement of shares and other securities.
The property of business companies and partnerships is divided into funds: an accumulation fund, a social fund, a consumption fund, etc. The types of funds, the procedure for their formation and expenditure are defined in the constituent documents, in special provisions on funds, as well as in laws and other legal acts. Thus, in a joint stock company it is mandatory to form a reserve fund, which should not be less than 15% of its authorized capital(Article 35 of the Federal Law of December 26, 1995 “On Joint Stock Companies”).
The procedure for the distribution of property during the liquidation of business companies or partnerships or the withdrawal of participants from them. Business companies and partnerships are legal entities in respect of the property of which their participants have obligatory rights: the right to a portion of profits, to dividends on shares, the right to receive a portion of the property upon liquidation of the legal entity or upon the withdrawal of a participant from it, etc.
In the event of liquidation of a partnership or company, its property remaining after satisfaction of the creditors' claims is distributed among its participants (Clause 7, Article 63 of the Civil Code of the Russian Federation).
If a participant leaves the partnership or company, he must also be paid from the property of this partnership or company (see Articles 78,85,94,95 of the Civil Code of the Russian Federation). The type of payment is determined by the organizational and legal form of this legal entity. So, according to paragraph 2 of Art. 26 of the Federal Law “On Limited Liability Companies”, the company is obliged to pay the participant leaving its membership the actual value of his share or give him property in kind. In accordance with paragraph 1 of Art. 78 of the Civil Code of the Russian Federation, upon the departure of a participant from a general partnership, by agreement with the remaining participants, payment of the value of the property, as in the case of a limited liability company, can be replaced by the delivery of property in kind (see also paragraph 2 of Article 82 of the Civil Code of the Russian Federation).
When resolving disputes arising between a partnership (society) and its founder (participant) regarding the withdrawal in kind of property contributed by the founder (participant) to the authorized (share) capital, one should proceed from the fact that such property can be given out in kind, although it belongs to the partnership (society) by right of ownership. For example, according to paragraph 1 of Art. 78 of the Civil Code of the Russian Federation in a general partnership, by agreement of the retiring participant with the remaining participants, payment of the value of property can be replaced by the delivery of property in kind (see also paragraph 2 of Article 82 of the Civil Code of the Russian Federation).
Distinctive features have consequences for member departure joint stock company from its composition. Registration of shareholder rights with shares means that the transfer of these rights to other persons is possible only through the transfer of shares. Therefore, when leaving a joint stock company, its participant cannot demand from the company itself any payments or distributions due to its share.
2. Ownership rights of production and consumer cooperatives.
The subject of property rights of a cooperative are production and consumer cooperative organizations recognized as legal entities. Production cooperatives are classified as commercial, and consumer cooperatives are non-profit organizations.
Maintenance and implementation of property rights of cooperatives. The limits of the exercise of property rights of a cooperative depend on its type (production or consumer) and on the scope of legal capacity. Consumer cooperatives, endowed with special legal capacity, are more limited in the exercise of powers to own, use and dispose of property than production cooperatives. For example, agricultural consumer marketing cooperatives use the property they own only to achieve goals related to the sale of agricultural products, carrying out their sale, storage, sorting, drying, washing, packaging, transportation and other related transactions.
The property of a cooperative arises as a result of the pooling of their share contributions by members of the cooperative. Shares are established in cash, land or other property form. The main grounds for the emergence of property rights for cooperatives are the creation of material wealth as a result of their own activities and civil transactions.
The cooperative is the owner of the property transferred to it as share contributions by its members, as well as property produced and acquired by the cooperative in the course of its activities (clause 3 of Article 213 of the Civil Code of the Russian Federation). Laws on cooperation and the charters of individual cooperative organizations specify the range of this property depending on the type of cooperative organization (production or consumer) and the scope of its legal capacity. This could be: land, buildings, structures, agricultural machinery, fishing fleet, housing stock, healthcare facilities and other property.
The property of cooperatives is divided into funds. First of all, a mutual fund is allocated as part of the property, consisting of the share contributions of members of the cooperative. The charter of a cooperative may provide that a certain part of the property owned by it constitutes an indivisible fund. The property that constitutes it is not included in the shares of members of the cooperative (Article 109 of the Civil Code of the Russian Federation). Such property may include: industrial premises, reclamation, hydraulic and other structures, fishing fleet, fishing gear, healthcare, cultural and sports facilities, etc. Usually, and in agricultural cooperatives without fail, a reserve (insurance) fund is created. Its size in agricultural cooperatives, for example, should not be less than 10% of the mutual fund.
The procedure for distributing property in the event of liquidation of a cooperative or withdrawal of participants from it. Like business societies and partnerships, production and consumer cooperatives are legal entities to whose property their participants have rights of obligation, which, as a rule, are not determined by the size of the share of each member of the cooperative. Thus, the property remaining after the liquidation of a production cooperative and satisfaction of the claims of its creditors is distributed among its members in accordance with their labor participation, unless a different procedure is provided for by law and the charter of the cooperative (clause 4 of article 109 of the Civil Code of the Russian Federation, article 12 of the Federal Law "On production cooperatives").
If there are indivisible funds, the procedure for their distribution during liquidation or reorganization is determined by law or the charter of the cooperative. Thus, when an agricultural cooperative is liquidated (both production and consumer), social infrastructure objects included in the indivisible fund are not subject to division, and when it is reorganized, production infrastructure objects (workshops, garages, dryers, grain storage, warehouses, etc.) are not subject to division. Such objects, on the basis of a decision of the general meeting, are transferred in the manner prescribed by law to one of the newly created cooperatives into an indivisible fund or into trust management. For the use of these facilities by members of the previous cooperative, one or more new consumer cooperatives may be formed.
The procedure for distributing property when a participant leaves the cooperative is also determined by law or the organization’s charter. For example, when leaving a production cooperative (and in relation to agricultural cooperatives, also from a consumer cooperative), its member has the right to payment of a share contribution or property corresponding to his share contribution (but not to payment of a share in all property), as well as to other payments, provided for by the charter (dividends, cooperative payments, etc.) - clause 1 of Art. 111 of the Civil Code of the Russian Federation.
The objects of ownership of a public association can only be those types of property that are necessary for it to materially support the activities specified in its charter. These are land plots, publishing houses, mass media, buildings, structures, housing stock, property for cultural, educational and recreational purposes, cash, securities and other property that meets the nature of the statutory objectives of the public association.
Maintenance and implementation of property rights of public associations. Public associations have the right to use the rights of the owner to own, use and dispose of property only to achieve the goals provided for by their constituent documents (Clause 4 of Article 213 of the Civil Code of the Russian Federation). Entrepreneurial activity is carried out by public associations only insofar as it serves the achievement of the statutory goals for which they were created and corresponds to these goals. Moreover, the entrepreneurial activity of non-profit organizations is recognized as the profit-generating production of goods and services that meet the goals of creating such an organization (for example, a sports society provides sports equipment repair services to the population), the acquisition and sale of property and non-profits. property rights, securities, other property, participation in business companies and limited partnerships as an investor.
Use of property during the liquidation of a public association. Since public associations are legal entities to whose property their participants do not have property rights (clause 3 of Article 48 of the Civil Code of the Russian Federation), upon liquidation of such an organization, its property remaining after satisfying the creditors’ claims is used for the purposes in whose interests it was created and (or) for charitable purposes. If the use of property in accordance with the constituent documents of the organization is not possible, it turns into state income (clause 4 of article 213 of the Civil Code of the Russian Federation, article 20 of the Federal Law “On Non-Profit Organizations”).
4. Ownership rights of associations of legal entities (associations and unions).
In accordance with paragraphs 1 and 2 of Art. 121 of the Civil Code of the Russian Federation, associations and unions are non-profit organizations, although they can be created by both commercial and non-profit organizations. Questions about subjects, objects, features of the acquisition and termination of ownership of property, possession, use and disposal of it are resolved on the basis of the provisions of paragraph 3 of Art. 48, paragraph 3, art. 212, art. 213 of the Civil Code of the Russian Federation, as well as in accordance with the Federal Law “On Non-Profit Organizations”. Associations and unions are the owners of property transferred to them as contributions by their founders (participants), as well as property acquired by them for other reasons. Participants in such associations lose the right of ownership to the property transferred by them into the ownership of the association, and do not acquire any other property right in relation to the property of this legal entity.
The property of associations and unions is used by them only to achieve the goals provided for by their constituent documents. The founders (participants) of the association do not have the right, however, to provide in the constituent documents for the possibility of conducting business activities (Clause 1 of Article 121 of the Civil Code of the Russian Federation).
In the event of liquidation of an association, the property is used for the purposes for which the organization was created, and (or) for charitable purposes, or turns into state income (Clause 1, Article 20 of the Federal Law “On Non-Profit Organizations”).
5. The subjects of property rights are also the Russian Federation as a whole(in relation to property constituting federal property), subjects of the Federation and municipalities.
The right of state and municipal property in the objective sense- a set of legal norms that determine the ownership of material goods of the Russian Federation, constituent entities of the Russian Federation, municipalities and the content of this right, as well as regulating the emergence, implementation, termination of property rights, the procedure and methods of its protection. In a subjective sense, this is the legally protected ability of the Russian Federation, its constituent entities, and municipalities to own, use, and dispose of state and municipal property in the interests of the population, environmental protection, and ensuring the defense capability and security of the state.
The subjects of property rights are: The Russian Federation is an independent sovereign federal state and subjects of the Russian Federation - republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts (Articles 124, 212, 214 of the Civil Code of the Russian Federation).
State ownership is two-level: Some objects belong to the Russian Federation, while others belong to the constituent entities of the Russian Federation.
Municipalities(urban, rural settlements and other administrative-territorial entities) are owners distinct from the state.
The range of objects of state property rights is unlimited. Among them are state-owned objects, the privatization of which is prohibited. These include subsoil, forest resources, water resources, resources of the continental shelf, territorial waters and maritime economic zone, movable and immovable objects of historical and cultural heritage of federal significance, enterprises for the production of state signs, railways, Atom stations and enterprises for the production of nuclear and radioactive materials, nuclear weapons and other property (clause 2.1 of the State Program for the Privatization of State and Municipal Enterprises in the Russian Federation, approved by the Decree of the President of the Russian Federation of December 24, 1993). The specified property cannot become private property; it is withdrawn from civil circulation. At the same time, it is hardly correct to say that the property of the state treasury, poisonous and narcotic substances are objects of the exclusive right of the state. State budget funds (related to the state treasury) can be allocated in accordance with the law on the state budget to support small businesses, including individual entrepreneurs. Narcotic substances They are included in many medications and are sold by prescription. Toxic substances of appropriate concentration are consumer goods (used, for example, to kill rodents and insects). Land and other natural resources are state property to the extent that they are not owned by citizens, legal entities or municipalities (Clause 2 of Article 214 of the Civil Code of the Russian Federation). Property that is not the exclusive property of the state is not defined by law. In principle, it can be any property.
The classification of state property as federal property and as the property of subjects of the Federation is carried out in the manner established by law (clause 5 of Article 214 of the Civil Code of the Russian Federation). Before the adoption of such a law, one should be guided by the resolution of the Supreme Council of the Russian Federation of December 27, 1991 “On the division of state property in the Russian Federation into federal property, state property of republics within the Russian Federation, territories, regions, autonomous regions, autonomous okrugs, the cities of Moscow and St. Petersburg and municipal property”, Regulations on determining the object-by-object composition of federal, state and municipal property and the procedure for registering property rights, approved by order of the President of the Russian Federation of March 18, 1992.
Here, first of all, objects that are exclusively federal property are defined. Accordingly, they cannot be transferred to the ownership of the subjects of the Federation and municipal property. They basically coincide with those included in the list of federal property objects whose privatization is prohibited, i.e. in Sect. 2.1 Privatization programs (discussed above). Any property, with the exception of property classified as federal property and municipal property, may belong to the subjects of the Federation. This is, for example, the property of enterprises created at the expense of budget funds constituent entities of the Russian Federation, funds from the state budget and extra-budgetary state funds of the constituent entities, etc.
Municipal property includes funds from the municipal treasury, property municipal institutions and enterprises, land plots, non-privatized housing and non-residential funds, objects engineering infrastructure cities, etc.
Enterprises are classified as municipal property specified in the resolution of the Supreme Council of the Russian Federation dated December 27, 1991 (Appendix No. 3 to the resolution). In accordance with the Privatization Program, most of them are subject to mandatory privatization (for example, trade enterprises - both wholesale and retail).
Part of the state and municipal property is assigned to state and municipal enterprises and institutions, which acquire a derivative property right to it (the right of economic management, the right of operational management - see this in § 6 of this chapter) as legal entities.
The other part, not distributed in this way, constitutes the state or municipal treasury (clause 4 of article 214, clause 3 of article 215 of the Civil Code of the Russian Federation).
The powers of possession, use and disposal that constitute the content of state and municipal property are exercised on behalf of the Russian Federation, constituent entities of the Russian Federation, municipalities by state authorities and local self-government bodies. The limits of the exercise of these rights are established by law, state and local privatization programs.
Among the grounds for the emergence of the right of state and municipal property, which can be either initial or derivative, one can indicate those specific to these forms of ownership - revenues in the form of taxes and other obligatory payments (for example, in the form of contributions to state extra-budgetary funds). The state treasury is also replenished from funds from the confiscation of property, i.e. forced gratuitous seizure of property into state ownership as a sanction for an offense (Article 243 of the Civil Code of the Russian Federation) and requisition (forced seizure of property from the owner in the state, public interests with compensation for the cost of the requisitioned property, carried out under circumstances of an emergency nature).
Common property right
These subjects of common joint ownership can, by agreement, switch to the regime of common shared ownership (clause 5 of Article 244 of the Civil Code of the Russian Federation).
Possession and use of common shared property is carried out by agreement of all co-owners, and if agreement is not reached, the dispute is resolved by the court. For example, a court decision may establish which part of the residential premises each heir uses in accordance with their shares, although the property is not divided in kind.
The disposal of common shared property is carried out by agreement of all participants (clause 1 of Article 246 of the Civil Code of the Russian Federation). The transaction for the disposal of the property is signed by all participants or one of them by proxy of the others. Disputes regarding the disposal of an object as a whole are beyond the jurisdiction of the court.
Each participant in common shared ownership can dispose of his share: as a gift, bequeath, etc., and for this the consent of other owners is not required.
However, when a share is alienated to an outsider by selling it, other properties have a preemptive right to purchase the share at the price for which it is sold and on other equal conditions, except in the case of sale at public auction (Article 250 of the Civil Code of the Russian Federation). The seller of the share must notify in writing of his intention to sell it to a third party. After the expiration of the period - 30 days for the sale of a share in real estate and 10 days - for movable property, during which the co-owners did not express their intention to purchase the share, the seller has the right to sell it to a third party.
You can dispose of the share by requiring the co-owners to provide part of the property attributable to the share of the allocated co-owner. Having received the property, he withdraws from the membership of the common property. Sometimes it is impossible to receive a share in kind, since the object itself is indivisible. In such cases, with the consent of the allocated co-owner, the other co-owners pay him the value of the share (Clause 3 of Article 252 of the Civil Code of the Russian Federation). We emphasize that compensation in exchange for the allocation of property in kind is permissible only with the consent of the person asking for the allocation. The only exception to this rule is provided for in paragraph 4 of Art. 252 of the Civil Code: if the share is insignificant and there is no significant interest in the use of the common property, the court may oblige the participants to pay monetary compensation to the allocated co-owner even without his consent.
Unlike shared ownership, participants in joint ownership can make transactions to dispose of common property not only jointly, but also each individually, while the consent of the other co-owners is assumed and a power of attorney is not required.
Regarding this type of common property, compensation in return for shares in kind is provided for more widely. Thus, the land plot and means of production of a peasant (farm) enterprise are not subject to division. Those who leave the farm can receive monetary compensation commensurate with their share. When deciding the amount of compensation due, the law proceeds from the equality of shares, unless otherwise provided by the agreement (clause 3 of Article 258 of the Civil Code of the Russian Federation).
Property rights of persons who are not owners
The owner may transfer his property to another person who in this case has derivative property right. The content of such a right is the authority to own, use and, to a limited extent, dispose of the relevant object. The owner retains his property rights in relation to him. But he either temporarily or indefinitely limits himself to one degree or another in the exercise of this right.
The institution spends its funds according to the estimate approved by the owner and within its limits.
Other actions to dispose of the property of an institution are prohibited, and a state-owned enterprise carries them out with the consent of the owner (Articles 298, 297 of the Civil Code of the Russian Federation). The owner has the right to seize property from a state-owned enterprise and institution if, for example, it is unnecessary for them, is used for other purposes or is not used at all (Clause 2 of Article 296 of the Civil Code of the Russian Federation).
— directly protect the right of ownership and other property rights (the right of economic management, the right of operational management, etc.) as absolute rights. In addition, these claims also protect the rights of an owner who is not the owner, which are not real rights in the full sense - when persons temporarily act as title owners (for example, a commission agent who received a thing from the owner for sale; a custodian, etc.). Title owners by virtue of Art. 305 of the Civil Code of the Russian Federation protect their rights of ownership against anyone, even against the owner.
The owner has the right to reclaim his property from someone else’s illegal possession (Article 301 of the Civil Code of the Russian Federation). Such a claim is called vindication.
This is the demand of the non-possessing owner to the actual owner for the return of the thing in kind.
Conditions necessary for filing a vindication claim:
a) the owner has lost possession of the thing,
b) the thing is individually determined,
c) it is in someone else’s possession, and this possession is illegal. The illegal owner would be, for example, the person who stole the item.
It happens that the owner transfers a thing for use under a contract, for example, for rent, and the person who received the thing under the contract does not return it to the owner, but sells it to a third party. A vindication claim is also brought against this person as an illegal owner.
The thing is always reclaimed from a person who directly unlawfully (without title, i.e. without legal basis) took possession of the owner’s property. The person who stole the thing does not acquire ownership of it and is obliged to return the thing to the owner.
But it happens that an item temporarily transferred by the owner to another person is alienated by him to third parties under various transactions (donations, purchases and sales, etc.). In this case, the acquirer may not know that he is buying, receiving as a gift an item that the alienator did not have the right to dispose of. The same situation arises when a thing is alienated by the person who stole it. The buyer often purchases an item without knowing that it has been stolen. Therefore, depending on whether the acquirer knew that he was acquiring an item illegally alienated, he is considered to be in good faith or in bad faith. A bona fide purchaser is a person who did not know and could not know that he was acquiring an item from a person who does not have the right to alienate it. And, conversely, a purchaser who knew or should have known that his possession was illegal is considered dishonest.
If a thing leaves the possession of the owner or the person to whom the owner transferred it under an agreement (from the possession of a tenant, for example), against their will (stolen, lost, blown away by the wind), the owner or other title holder has the right to reclaim the thing from any acquirer - as an unscrupulous one, and conscientious. The exception is money and bearer securities (this means individually defined things, for example, banknote numbers are written down). If, say, the numbers and series of bonds are written down by the owner, and the thief who stole the bonds sold them to a bona fide buyer, the buyer acquires ownership of them, and accordingly, the vindication claim is not satisfied.
If the counterparty is a lessee, the custodian has donated the thing, any acquirer who has received the thing free of charge from a person who does not have the right to alienate it is obliged to return the thing to the owner.
A bona fide purchaser who has received a thing from such a person under a compensated transaction becomes its owner. The former owner, in defense of his interests, must submit a claim for compensation for losses to the custodian, tenant, etc.
So, the thing is demanded from an unscrupulous purchaser in any case.
A bona fide acquirer, under certain conditions - when the owner initially transfers the thing into possession of another person, and he alienates the property under a compensated transaction - acquires the right of ownership of this thing.
It happens that the owner who owns the property is interfered with in the use or disposal of it. For example, a construction organization folded reinforced concrete structures at the entrance to the premises, without legal grounds (construction is planned on one site, and building materials are stacked on the adjacent one). In this case, the purpose of protecting the rights of the legal owner is served by a negatory claim: the owner, title owner may demand elimination of violations of his rights, even if these violations are not related to deprivation of possession (Article 304 of the Civil Code of the Russian Federation). In the above example, the owner may require construction organization, so that she removes the structures, since this prevents the owner of the premises from exercising the rights of use.
This type of violation is characterized by its ongoing nature. As long as the violation continues, the grounds for bringing a negative claim remain. If the violation ceases, there is no need to file a lawsuit. The claims of the owner or another possessor, which are the content of a negatory claim, are not subject to the limitation period (Article 208 of the Civil Code of the Russian Federation).
Property right - This is a right that ensures the satisfaction of the interests of an authorized person by directly influencing a thing that is in the sphere of his economic dominance.
The difference between compulsory real rights is that in the field of real rights, his own actions are decisive for satisfying the interests of the entitled person. While in the field of compulsory rights, the actions of the obligated person are decisive.
The similarity of mandatory and material law is legal support for the proper behavior of obligated persons.
Signs of property rights:
1. Is of an indefinite nature;
2. The object is a thing;
3. Requirements arising from material rights are subject to priority satisfaction in comparison with requirements arising from obligatory rights;
4. The right of succession is inherent in real rights;
5. Real law enjoys absolute protection of legislation (clauses 3 and 4 of Article 216 of the Civil Code) only two features are fixed: a) the right to follow b) the absolute nature of the protection.
Types of property rights:
1. Ownership
2. The right to lifelong inheritance of land
3. The right to permanent (indefinite) use of land
4. Right of economic management
5. Right of operational management
6. Easements
Based on the characteristics of real rights, these include:
The rights of independent disposal of property belonging to the institution (clause 2 of Article 298 of the Civil Code), mortgage of real estate (clause 1 of Article 131 and clause 2 of Article 334), the rights of a member of a cooperative to a cooperative apartment before its redemption, the rights of family members of the owner of residential premises to use this premises (Article 292), the right to lifelong residence in residential premises belonging to another person, by agreement or by virtue of a testamentary refusal (4 Chapter 33 of the Civil Code).
By G.F. Shershenevich (Textbook of Russian civil law) signs of real rights:
It is the duty of all fellow citizens to refrain from actions that disagree with him.
The obligation of passive subjects who deny the properties they are awarded is also to abstain from using things that belong to others by right of ownership.
All fellow citizens are passive subjects, but a violation of the right can occur on the part of each person.
A claim to protect a right can be brought against each person who violates the right.
Law is established independently of the will of passive subjects.
In a collision with a property, the right of obligation always gives way to the property.
Among the real rights the following can be distinguished:
Rights attached to certain property;
Rights belonging to a certain person (the right to live in a house for life)
Rights that are established in the public interest (public easements)
Rights that are established in private interests (lifelong inheritable ownership of land)
Rights that provide the right to use someone else's thing in a certain limited respect (easements)
Rights that provide the right to dispose of someone else's property.
Real rights can be classified according to the reasons for their occurrence, unilateral expression of will, court decision, etc.
Upon their termination: destruction of the thing encumbered by the easement; coincidence in one person of the rights to the main and encumbered by the easement.
Property is one of those concepts that has been the subject of debate for many centuries.
Property means:
a) the relationship between a person and a thing;
b) public attitude;
c) property relation.
Thus, property is the attitude of a person towards a thing belonging to him as his own, which is expressed in the possession, use and disposal of it, as well as in the elimination of interference of all third parties in the sphere of economic domination over which the power of the owner extends.
The content of property rights consists of the rights of the owner to own, use and dispose of a thing. The right of ownership is the legally enforceable ability to extract useful properties from things in the process of its personal or productive consumption. The power of disposal is a legally secured ability to determine the fate of a thing by performing legal acts in relation to this thing.
The right of ownership is a system of legal norms regulating the relations of ownership, use and disposal by the owner of a thing belonging to him at the discretion of the owner and in his interests, as well as at the discretion of the intervention of all third parties in the sphere of his economic domination.
According to clause 2 of article 8 of the Constitution of the Russian Federation. private, state, municipal and other forms of property are recognized and protected equally. Private property is divided into the property of citizens and legal entities. State property is divided into: federal property belonging to the Russian Federation and property belonging to the constituent entities of the Russian Federation.
The right of ownership is one of those subjective rights that can arise only in the presence of a certain legal fact. And sometimes a combination of them. These legal facts are called the grounds for the emergence of property rights.
The grounds for the emergence of property rights are usually divided into initial derivatives.
The initial methods of acquiring ownership include:
Acquisition of ownership of a newly manufactured item (clause 1 of Article 218 of the Civil Code);
Processing (Article 22 0);
Transfer of ownership of publicly available things (Article 221 of the Civil Code), acquisition of ownership of ownerless property (clause 3 of Article 218; Articles 225 and 226; clause 1 of Article 235 of Article 236 of the Civil Code), a find (Article 227, 229 of the Civil Code);
Stray animals (Article 230-232 of the Civil Code);
Treasure (Article 233 of the Civil Code);
Acquisition prescription (Article 234 of the Civil Code);
Acquisition of ownership rights to unauthorized construction (Article 222)
Derivative methods of acquiring ownership include:
Nationalization (Part 3, Clause 2, Article 235, 306 of the Civil Code);
Privatization (Article 217; Part 2, Clause 2, Article 235 of the Civil Code);
Acquisition of property rights under a contract;
Acquisition of property rights by inheritance and others.
There are also ways of acquiring property rights, which in some cases act as initial, and in others as derivative (for example, acquiring ownership of fruits, products and income (Article 136, paragraph 2, paragraph 1, Article 218 of the Civil Code)
The right of ownership terminates when the owner alienates his property to other persons, the owner renounces the right of ownership, or the property is destroyed or destroyed in the event of loss of ownership of the property in other cases provided for by law.
Forced confiscation of property from the owner is not permitted, except in cases provided for by law and only on the basis of a court decision.
The property relationship receives legal expression both in the system of legal norms that form the institution of property rights, and in the subjective right of property, i.e. to that extent of power. Which the law and other legal acts assign to the owner. The property of citizens is no exception.
All cases when a citizen, as an owner, introduces his property into civil circulation should be divided into two groups: a) cases when the citizen’s acting as an owner does not require registration; b) cases when a citizen’s acting as an owner requires registration.
The objects of property rights of citizens can be any property, with the exception of certain types of property, which, in accordance with the law, cannot belong to them. The quantity and value of property that may be owned by citizens is not limited, except in cases established by law.
Ownership rights of legal entities.
The range of legal entities acting as owners of property they own is unusually wide. These are business societies and partnerships, production and consumer cooperatives, public and religious organizations and unions.
According to paragraph 1 2 of Article 213 of the Civil Code, legal entities can own any property, except for certain types of property, which, in accordance with the law, cannot belong to legal entities.
In accordance with the permissive orientation and discretionary nature of civil law regulation, the legislator sharply limited the number of mandatory regulations concerning the procedure for forming property funds of legal entities, determining the purposes of their expenditure, and ensuring the interests of individuals and legal entities participating in the formation of the property of a given legal entity.
Common property right.
Common property is characterized by a plurality of subjects of property rights, which are called participants in common property or owners.
The law establishes two types of common property: shared and joint (clause 2 of article 244 of the Civil Code). Common property is called shared property when each of its participants owns a certain share. In common joint property, the shares of its participants are not determined in advance; they are oriented
Only when dividing joint property or when separating from it.
The right of common shared ownership has a number of advantages:
Firstly, the right of each owner is not limited to any specific part of the common property;
Secondly, the indication remains that the object of this right as a property right is a thing;
Thirdly, the rights of other owners also apply to all property as a whole; the characterization of common property as multi-subject property is not questioned;
Fourthly, since the ownership right of each owner is expressed in a certain share, the specificity of shared ownership as a special type of common property has been revealed.
Each owner, at his own discretion, can dispose of his share in the common property. To dispose of shares, including for their alienation, he should not seek the agreement of other participants in the common property, however, the owners have the right of first refusal to purchase the share.
Joint ownership, unlike shared ownership, can be formed only in cases provided for by law. The Civil Code establishes two types of common joint property - spouses and members of a peasant (farm) household.
Participants in joint ownership, unless otherwise provided by agreement between them, own and use the common property jointly. The disposal of common property is carried out by mutual consent of all owners.
Limited real rights.
1. Citizens acquire the right to lifelong inheritable ownership of a land plot that is in state or municipal ownership on the grounds and in the manner provided for by land legislation.
A citizen has rights of ownership and use of such a plot, which are inherited.
A citizen's right to dispose of a land plot that is in lifelong inheritable ownership is limited.
The acquisition of ownership rights to participating real estate does not in itself entail the transformation of the right to lifelong inheritable ownership of a land plot and the right of ownership to it.
1. The right to permanent use of a land plot is granted to both citizens and legal entities, and on the basis of a decision of a state or municipal body.
The person to whom the plot is provided has the right, unless otherwise provided by law, to independently use the plot for the purposes for which it was provided, including the construction of buildings, structures and other real estate on the plot for these purposes. The said property created by this person for himself is his property.
3. An easement should be understood as the right to use someone else’s property within a certain limitation. The owner of a land plot and other real estate has the right to demand that the owner of a neighboring plot grant the right to limited use of the neighboring plot.
An easement can be established either by agreement of the parties, or, if no agreement is reached, by a court decision.
Clause 1 of Article 175 of the Civil Code of the Russian Federation in accordance with clause 3 of Article 216 of the Civil Code of the Russian Federation establishes the right of succession in relation to the easement: the easement is preserved in the event of the transfer of rights to the land plot encumbered by the easement to another person.
The concept of system and the basis for the emergence of obligations.
1. The concept of obligation.
2. Commitment system.
3. Grounds for the occurrence of obligations.
The concept of obligation. The term “obligation” is used in science and practice in various semantic meanings. It denotes, first of all, a certain civil legal relationship, sometimes an obligation (debt) of a debtor, and in some cases a document in which such an obligation is recorded (receipt, receipt). An obligation as a legal relationship is characterized by: that by virtue of it one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc. or refrain from a certain action, and the creditor has the right to demand from the debtor the fulfillment of his obligations(Part 1 of Article 307 of the Civil Code of the Russian Federation).
Obligations are mediated by both normal relations of society associated with the sale of goods, performance of work, provision of services, etc., and relations arising as a result of unlawful actions - causing harm or unjust savings or acquisition of property at the expense of another person. However, in both the first and second cases, homogeneous social relations that develop in the spheres of circulation or distribution, expressing the process of moving property and other results of labor of a property nature, are clothed in the form of obligatory legal relations. For example, obligations for purchase and sale, delivery, transportation, etc. mainly mediate the movement of assets from the sphere of production to the sphere of circulation, and through the latter to the sphere of consumption. Obligations for compensation for harm are based on relations associated with the redistribution of material benefits, when, in order to eliminate the harm caused, part of the property of the perpetrator is transferred to the victim, etc.
It is sometimes argued that obligations are mediated by organizational relations built on the principles of coordination and equality. However, organization and orderliness are properties of any social relations, including property relations. Organizational relations are inseparable from property relations; they characterize either the stage of formation of the latter or the degree of their organization. Therefore, organizational relations, not being an independent subject of civil law regulation, cannot as such be mediated by obligations.
The most important feature of obligations is that these are property civil legal relations, since they are always associated with means, products of production or other results of labor that are of a property nature.
Opinions are expressed about the possibility of establishing obligatory relations with non-property content. However, theoretical arguments are not given to substantiate this view and can hardly be given, since by their very essence obligations mediate relations of economic turnover, which are always of a property nature. And it’s a coincidence that representatives of this concept operate only with isolated, unconvincing examples. So. it is argued, for example, that a gratuitous contract is an order-obligation with non-property content. But non-compensation does not deprive legal relations of their property nature. Sometimes examples of individual non-proprietary obligations are given (for example, the author’s obligation to keep his work proofread).
However, the presence of individual non-property obligations does not affect the property nature of the obligation as a whole (in this case, the obligation under a contract for the publication of a work). The property nature of obligations predetermines their similarity to the legal relations of property.
But unlike them, obligatory legal relations:
a) are associated with the movement of property - its movement from one entity to another;
b) they establish a connection between the authorized person not with all third parties, but with a specific person and, therefore, are not absolute, but relative. By general rule, obligations cannot create obligations for persons not participating in them as parties (clause 3 of Article 308 of the Civil Code of the Russian Federation).
All obligations are established in order to achieve certain goals. A distinction is made between general and immediate goals. In terms of their general goals, obligations are no different from other civil legal relations: together with the latter, they serve to achieve the goals put forward by the state and society. Direct ones are those specific goals that the participants in a certain obligatory legal relationship strive to achieve. They can be very diverse: implementation of the national economic plan, satisfaction of the material and cultural needs of citizens, ensuring the protection of socialist and personal property, protection of property rights and interests of citizens, etc.
Elements of obligation. Like any civil legal relationship, an obligation includes a number of elements, subjects, object, content. Subjects of obligation- these are the persons participating in it. Their circle is wide and varied. Obligations are established both between socialist organizations and between them and citizens, as well as between the citizens themselves. The subjects of the obligation are called the creditor and the debtor. A creditor is a party authorized to demand the performance of a certain action and the resulting abstinence from other actions. Debtor is a party obligated to perform a certain action or refrain from performing any action.
The creditor, as the authorized person, is usually called an active participant, and the debtor, as an obligor, is called a passive participant in the obligation. In some obligations, one party acts only as a creditor, and the other only as a debtor. For example, in an obligation from a loan agreement, the lender has the right to receive the money or things given to him on loan, determined by generic characteristics, and the borrower has the obligation to return the same amount of money or an equal number of things of the same kind and quality. But in most obligations, each of their participants is both a debtor and a creditor. For example, in an obligation to buy and sell, the seller has the right to receive a certain amount of money, but at the same time is obliged to transfer the thing to the buyer into ownership (operational management), and the buyer has the right to receive the thing, but is obliged to pay the agreed price.
Object of obligation something about which an obligatory legal relationship is established is recognized. This quality can be represented by things, products of creative activity, results of actions, separable and inseparable from the actions themselves. Thus, in obligations for purchase and sale, delivery, property rental, loan, etc., the object is things. In obligations arising from copyright contracts, the object is the product of creative activity (works of science, literature, art, etc.). Most of the obligatory legal relations for the production of work and the provision of services have as their object the results of actions that are separated from the actions themselves. Thus, in an obligation arising from a work contract, the thing as its object is separated from the actions (the activity of producing the thing). However, in some obligations to provide services, the object becomes the result of actions that are inseparable from the actions themselves (for example, the very performance in a concert of the artist with whom the corresponding contract has been concluded).
Contents of the obligation like any other civil legal relationship, form the powers and obligations of its subjects. In obligations, the right is the right to claim, and the obligation is the debt. Therefore, the creditor has the right to demand, and the debtor undertakes to perform certain actions and the resulting abstinence from performing any actions. Positive actions that the debtor may be obliged to perform are very diverse: transferring things to the creditor for ownership or temporary use, performing any work or providing services, concluding by the debtor of any transaction for the creditor, etc. Sometimes, however, The debtor’s obligation to perform certain actions is accompanied by the same conditioned abstinence from performing any actions.
Obligatory, like all other, civil legal relations are ensured by measures of state coercion. These measures are called sanctions in obligations.
Sanction- these are the adverse consequences that occur in the event of non-fulfillment or improper fulfillment of an obligation for the party who violated it. The sanctions established for violation of obligations are very diverse. Some of them are of a general nature (for example, recovery of losses), others apply only to certain types of obligatory legal relations (as, for example, the adverse consequences provided for in Article 475 of the Civil Code of the Russian Federation are applied only in sales and purchase relations, which come to the seller when selling them things of inadequate quality). A typical form of enforcing a sanction is a lawsuit. A claim brought by a creditor in court, arbitration or arbitration tribunal serves as the main means of ensuring the satisfaction of the interests of the creditor in addition to and against the will of the debtor.
Commitment system. Numerous obligations provided for by civil law, or although not provided for by it, but applied in practice, can be subjected to a certain classification. Such a classification should be based on a criterion that makes it possible to combine all homogeneous obligations in one classification heading. From this position, the most successful criterion seems to be one that combines economic and legal characteristics inherent in obligations.
As a result of its use, the following groups of obligatory legal relations are formed:
1) obligations to transfer property into ownership or operational management (purchase and sale, lifelong maintenance with dependents, supply, contracting, energy supply, barter, donation);
2) obligations to transfer property for use (renting residential premises, free use of property);
3) obligations to carry out work (contract, research, design and design and survey work);
4) transportation obligations (railway, sea, river, air, road transportation);
5) insurance obligations (property, personal insurance);
6) obligations for lending and settlements (loan, bank loan, settlement and current account, settlement legal relations, check, bill);
7) obligations to provide services (order, commission, storage, expedition);
8) obligations for joint activities(relations between citizens, relations between organizations);
9) obligations resulting from unilateral actions (conducting other people’s affairs without instructions, competition);
10) protective obligations (for compensation for damage, for the return of unjustifiably acquired or saved property).
Grounds for the emergence of obligations. Legal facts (or their compositions), with the occurrence of which the law associates the emergence of subjective rights and obligations, are called the grounds for the emergence of obligations.
The most common and important basis for the emergence of obligations is contract
A contract is an agreement between two or more persons aimed at creating, changing or terminating a civil legal relationship. Different kinds contracts (purchase and sale, barter, transportation, commissions, orders, loans, storage, insurance, etc.) ultimately have a general purpose: to serve as a form of organizing property turnover.
In cases where a person, by his sole actions, without entering into an agreement with anyone, gives rise to civil obligations for other persons, the obligations arise from unilateral transactions. This is a less common reason for their occurrence. These include, in particular, a will, acceptance of an inheritance, etc.
Bidding has become a more common form of unilateral transaction in the new economic situation in Russia. , conducted in the form of competitions and auctions. Trades are held to identify persons who are ready to enter into certain contracts on terms that are most favorable to the auction organizer (Article 447 of the Civil Code of the Russian Federation). As a result of the auction, the person who wins the auction acquires the right to enter into an agreement.
Obligations may also arise in areas not related to contracts or unilateral transactions. They are usually called non-contractual obligations.
These are considered:
a) obligations arising from causing harm (clause 2 of Article 307 of the Civil Code of the Russian Federation);
b) obligations arising from unjust enrichment (Article 8 of the Civil Code of the Russian Federation).
A person who causes harm to the life or health of a citizen or the property of a legal entity is obliged to compensate for such harm in full. The scope of compensation also includes moral damage, the amount of compensation for which is determined by the court, taking into account the specific circumstances of its infliction.
Causing harm, therefore, is the result of a civil offense (tort), allowing the victim to make a claim to the causer for compensation. In the context of causing harm, the Civil Code of the Russian Federation also considers harm caused to a person as a result of the abuse by the causer of his subjective right (clause 1 of Article 10 of the Civil Code of the Russian Federation). However, there are no direct instructions in the code about compensation for damage caused in this way; In this case, we are talking about a different way of influencing an abuser of rights - the court has the right to refuse to protect his rights (Clause 2 of Article 10 of the Civil Code of the Russian Federation).
Unjust enrichment may manifest itself in various forms. Thus, unlawful withholding of other people's funds, evasion of their return, unjustified receipt or savings at the expense of another person obliges the offender to pay interest on the amount of these funds (Clause 1 of Article 395 of the Civil Code of the Russian Federation), as well as to compensate for losses caused by unlawful use of other people's funds (clause 2 of article 395 of the Civil Code of the Russian Federation).
Obligations may also arise from other grounds provided for by the Civil Code (clause 2 of Article 307 of the Civil Code of the Russian Federation).
Execution, modification and termination of obligations
1. Concept and principles of fulfillment of obligations.
2. Subjects of fulfillment of obligations.
3. Subject of execution.
4. Method, place and deadline for execution.
5. Change of obligations.
6. Concept and grounds for termination of obligations.
7. Certain ways to terminate obligations.
Concept and principles of fulfillment of obligations.
Execution of obligations is the implementation of certain active actions. Refraining from action also constitutes the content of obligations, but it is only a complement to the obligation to take active actions.
Obligations must be fulfilled properly ( principle of due process) in accordance with the terms of the obligation and the requirements of the law, and in their absence - in accordance with business customs or other usually imposed requirements (Article 309 of the Civil Code of the Russian Federation).
The second principle of fulfillment of obligations provided for by civil law is principle of real performance. This principle is formulated in Art. 396 of the Civil Code of the Russian Federation. As a general rule, it establishes the obligation of performance in kind—the performance by the debtor of precisely those actions that constitute the content of the obligation.
Counter is the fulfillment of an obligation by one of the parties, which, in accordance with the contract, is conditioned by the fulfillment of its obligations by the other party.
Subjects of fulfillment of obligations.
One or several persons may participate in an obligation as each of its parties - creditor or debtor (Article 308, Clause 1, Civil Code of the Russian Federation). In accordance with the scope of rights and obligations, it is customary to distinguish between equity, joint and subsidiary obligations.
Equity obligations exist when several creditors or several debtors participate in the obligation. Each of the creditors of the shared obligation has the right to demand performance, and each of the debtors is obliged to fulfill the obligation in an equal share with others (Article 321 of the Civil Code of the Russian Federation).
Solidary obligations, as well as joint and several claims, arise in cases specifically provided for by law (in particular, when the subject of the obligation is indivisible) - an agreement or the law itself (Article 322 of the Civil Code of the Russian Federation).
Subsidiary obligations arise both by force of law and by agreement. The peculiarity of subsidiary obligations lies in the nature of the relationship between the main and subsidiary debtor, as well as the priority of execution to the creditor.
The subsidiary debtor fulfills the claim only in that part in which it is not fulfilled by the main debtor. The creditor is obliged to present a demand for performance first of all to the principal debtor. An example of subsidiary liability is the liability of a guarantor, if this is provided by law.
As already noted, the rule applied to the performance of an obligation is that the performance must be carried out by the proper debtor to the proper creditor. This rule has an exception, namely that instead of the debtor and/or creditor, a third party may participate in the execution or its acceptance. The participation of third parties is possible in cases of assignment (reassignment) and redirection of execution.
Reassignment of execution - imposition by the debtor of the fulfillment of obligations on a third party (Article 313 of the Civil Code). In cases of delegation, the third party performs only actual actions (for example, pays) and is not a party to the obligation. In this case, the creditor is obliged to accept the performance offered for the debtor by a third party. A third party who is in danger of losing his right to the debtor’s property (the right to lease, pledge, etc.) as a result of the creditor’s foreclosure on this property may, at his own expense, satisfy the creditor’s claim without the debtor’s consent. In this case, the rights of the creditor under the obligation are transferred to the third party.
If the personal participation of the debtor is necessary to fulfill the obligation, he cannot delegate it to third parties (clause 1 of Article 313 of the Civil Code). Thus, an actor who has entered into a contract to perform a role cannot delegate this to a third party.
Forwarding execution- the right of the debtor, which consists in the opportunity to fulfill the obligation both to the creditor and to the person specified by the creditor.
The debtor is responsible for non-fulfillment or improper fulfillment of the obligation by third parties who were entrusted with the performance, unless the law establishes that the third party who is the direct executor is responsible (Article 403 of the Civil Code).
The participation of third parties in the fulfillment of obligations does not imply replacement of the creditor or debtor. However, such situations are possible, and they are called a change of persons in the obligation. The assignment by a creditor of his right to demand is possible on the basis of the conclusion of an appropriate agreement (in the order of partial succession) or law and is called replacing the creditor.
Subject of execution.
Subject of fulfillment of obligation- this is that thing, service or work that, due to obligations, must be transferred, provided or performed to the creditor. Requirements for an item are determined in accordance with the terms of the contract, the law, and in the absence of such, with the usually imposed requirements (the item must be suitable for use in accordance with its intended purpose). The law provides for a number of special requirements regarding the fulfillment of monetary obligations. They must comply with the legislation of the Russian Federation on currency regulation - expressed in rubles (clause 1 of Article 317 of the Civil Code).
A monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency, or in conventional monetary units (ecus, “special drawing rights”, etc.). In this case, the amount payable in rubles is determined at the official exchange rate of the corresponding currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties (clause 2 of Article 317 of the Civil Code). The use of foreign currency, as well as payment documents in foreign currency when making payments on the territory of the Russian Federation for obligations, is permitted in cases provided for by the law on exchange control, and in the manner established by the Central Bank of Russia.
The amount paid under a monetary obligation directly for the maintenance of a citizen: in compensation for harm caused to life or health, under a lifelong maintenance agreement, and in other cases - with an increase established by law minimum size wages increase proportionally (Article 318 of the Civil Code).
The amount of the payment made, which is insufficient to fulfill the monetary obligation in full, in the absence of another agreement, first of all pays off the creditor’s costs of obtaining fulfillment, then interest, and the remainder - the principal amount of the debt (Article 319 of the Civil Code).
There are also a number of special rules for alternative obligations.
Alternative obligations are recognized in which there are several items, and the transfer of any of these items is the proper fulfillment of the obligation.
The debtor, who is obliged to transfer one or another property to the creditor or to perform one of two or more actions, has the right to choose, unless otherwise follows from the law, other legal acts or the terms of the obligation.
If one of the items of performance in an alternative obligation perishes, and the choice of the authorized person is focused on this item, the obligation is terminated due to the impossibility of performance.
Optional are obligations that have one subject of execution, which can be replaced by the debtor with another pre-agreed subject. In contrast to an alternative obligation, in a facultative one, the destruction of its subject entails the termination of the obligation.
Method, place and time of execution.
Method of execution - the procedure for the debtor to perform actions to fulfill the obligation. The method of execution is determined by the parties when an obligation arises. If it has not been determined, the creditor has the right not to accept the fulfillment of the obligation in parts (Article 311 of the Civil Code).
Unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law. Unilateral refusal to fulfill an obligation related to the implementation of entrepreneurial activities by its parties and unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation (Article 310 of the Civil Code).
According to Art. 327 of the Civil Code, the debtor has the right to deposit the money or securities due from him to the deposit of a notary, and in cases established by law, to the deposit of the court - if the obligation cannot be fulfilled by the debtor due to:
Absence of the creditor or the person authorized by him to accept performance in the place where the obligation must be fulfilled;
Incapacity of the creditor and absence of his representative;
An obvious lack of certainty as to who is the creditor of the obligation, in particular in connection with a dispute on this issue between the creditor and other persons;
Evasion of the creditor from accepting performance or other delay on his part.
Depositing a sum of money or securities with a notary or court is considered the fulfillment of an obligation. The notary or the court, in whose deposit the money or securities are deposited, notifies the creditor about this.
Place of performance - this is the place where the execution must take place. As a rule, it is defined in the obligation itself.
If, at the conclusion of the contract, the place of performance was not determined, then the following rules, provided for in Art. 316 Civil Code:
Under the obligation to transfer a plot of land, building, structure or
other real estate - at the location of the property;
Under the obligation to transfer goods or other property that provides for its transportation - at the place of delivery of the property to the first carrier for delivery to the creditor;
For other obligations of the entrepreneur to transfer, goods or other
property - at the place of production or storage of property, if this place was known to the creditor at the time the obligation arose;
For a monetary obligation - at the place of residence of the creditor at the time the obligation arose, and if the creditor is a legal entity - at its location at the time the obligation arose; if by the time the obligation is fulfilled, the creditor has changed his place of residence or location and notified the debtor about this - in the new place of residence or location of the creditor, with expenses associated with the change of place of performance being charged to the creditor’s account;
For all other obligations - at the place of residence of the debtor, if the debtor is a legal entity - at its location.
Period of execution obligations are determined by law, the basis for the occurrence of the obligation or its essence. A distinction is made between obligations with a certain period of time, which make it possible to establish a period of time during which they must be fulfilled, and obligations that do not provide for a period of fulfillment.
For the last of the above obligations, there are reasonable deadlines for fulfillment. Reasonable time refers to the period of time usually required to complete the actions required by the obligation.
For obligations that must be fulfilled within a sufficiently long period of time, intermediate deadlines for fulfillment are also important.
The obligation must be fulfilled within the time limits provided for by the agreement and the law. Early execution is the right of the debtor, unless otherwise provided by law, the terms of the obligation, or does not follow from its essence.
Violation of established deadlines for fulfilling obligations - overdue. Delay can be caused by both the debtor and the creditor.
A debtor who is late in performance is liable to the creditor for losses caused by the delay and for the consequences of an accidental impossibility of performance occurring during the delay. If, due to the debtor's delay, the performance has lost interest for the creditor, he may refuse to accept the performance and demand compensation for losses. The debtor is not considered to be in default until the obligation cannot be fulfilled due to the creditor's delay (Article 405 of the Civil Code).
The creditor is considered to be in default if he refused to accept the proper performance proposed by the debtor or did not perform actions provided for by law, other legal acts or agreement, or arising from business customs or from the essence of the obligation, before which the debtor could not fulfill his obligation .
The creditor's delay gives the debtor the right to compensation for losses caused by the delay, unless the creditor proves that the delay occurred due to circumstances for which neither he himself nor those persons who, by virtue of law, other legal acts or the instructions of the creditor, were entrusted with accepting the execution , do not answer (Article 406 of the Civil Code). The creditor is considered to be in arrears if, when accepting the performance, he did not, at the request of the debtor, issue a receipt for receipt of the performance in full or in the relevant part (clause 2 of Article 408 of the Civil Code).
Under a monetary obligation, the debtor is not required to pay interest during the creditor's delay
Change of obligations.
The grounds for changing obligations are provided for by the Civil Code of the Russian Federation, other laws and legal acts or an agreement, as well as by agreement of the parties, which takes place in the same form as the obligation itself.
The obligation may be changed and at the request of one of its parties, if this is provided for in the agreement concluded by the parties. The obligation is also changed unilaterally in cases where one of the parties to the obligation has committed a significant violation of its obligations. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract (Clause 2 of Article 450 of the Civil Code of the Russian Federation). At the request of one of the parties, the agreement can be changed by a court decision.
A change in obligations may also occur when significant change in circumstances. In accordance with paragraph 1 of Art. 451 of the Civil Code of the Russian Federation, a change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen this, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.
The concept and basis for termination of obligations.
Under termination of obligation one should understand the repayment of the rights and obligations of its participants, which constitute the content of the obligation. The meaning of termination of an obligation is that it ends the existence of the obligation.
To terminate an obligation, there must be a certain basis, i.e. a legal fact with the occurrence of which an agreement or law binds the termination of this obligation (Article 407 of the Civil Code of the Russian Federation). These legal facts can be both unilateral and bilateral transactions, and some are not transactions at all (for example, the coincidence of a debtor and a creditor in one person). The grounds on which obligations are terminated are provided for by laws, other legal acts or agreements.
The Civil Code of the Russian Federation provides for the following grounds for termination of obligations:
Termination of obligations by proper execution;
By test;
Termination of obligations by agreement of the parties;
Termination of obligations at the initiative of one party;
Termination of obligations due to impossibility of performance;
Termination of an obligation by the coincidence of the debtor and the creditor in one person;
Termination of an obligation by the death of a citizen or liquidation of a legal entity.
General provisions.
It is necessary to distinguish between ownership and ownership. Property is the relationship between various subjects of civil law regarding material objects, property, things. In these relations, one of the subjects treats this property as his own; for others it is foreign. Dividing things into “ours” and “theirs” makes sense only in society, in social relations. Property arises in the process and as a result of social production.
Property covers two types of relationships: 1) a person’s relationship to a thing as his own; 2) the relationship between persons regarding this thing (regarding the appropriation of things and their location in some subjects).
Property rights are a system of legal norms that establish relations of ownership of the means of production and consumer goods. The main legislative act on these issues is the Civil Code of the Russian Federation, section 2 “Property rights and other real rights”. The Civil Code of the Russian Federation came into force on January 1, 1995.
The Civil Code first introduced the concept of real rights as a general category of various rights, which included the right of ownership. The latter remains the main and broadest property right. Therefore, the right of ownership will be considered first, and an analysis of other property rights will be given at the end of this subsection.
Contents and forms of property rights
The owner has three rights (powers) in relation to his property: possession, use and disposal. The right of ownership means the possibility of physical possession of a thing, economic influence on the thing. The right of use is the right to extract the useful properties of a thing through its exploitation and use. During the process of use, the property is either completely consumed or worn out (depreciated). The right of disposal is understood as the right to determine the legal fate of a thing (sell, donate, lease).
Rights of possession and use may belong to both the owner and other persons who have received these powers from the owner. The right of disposal is exercised by the owner, and by other persons only upon his direct instructions.
The owner uses the thing (possesses, uses and disposes of it) at his own discretion. At the same time, he can remain the owner of the thing. In general, the owner has the right to perform any actions in relation to the property he owns that do not contradict the law, of course, if these actions do not violate the rights of other persons.
Along with the rights granted to the owner, the law imposes certain responsibilities on him. These include the burden of maintaining the property (paying taxes, repairing certain types of property). In addition, the owner bears the risk of accidental death or accidental damage to his property.
Various categories of owners have the right of ownership: citizens and private legal entities, the Russian Federation, constituent entities of the Russian Federation, municipal organizations, public organizations, foreign citizens and states, international organizations.
Depending on whether the property belongs to the owner of one category or another, his rights are defined by law more broadly or narrowly. Therefore, the following forms of ownership are distinguished: private, state, municipal, public and religious organizations, foreigners, etc. Some types of property cannot belong to certain categories of owners.
Citizens and private commercial legal entities may own any property, with the exception of certain categories, which by law cannot belong to them. At the same time, the quantity and value of property owned by citizens and private commercial legal entities are not limited (with some rare exceptions).
State property in Russia is considered to be property belonging to the Russian Federation or its constituent entities. It may be in the possession and use of these entities themselves (and then it will form the state treasury of the corresponding entity) or be assigned to state enterprises and institutions.
Property owned by the right of ownership to urban and rural settlements, as well as other municipal entities, is municipal property. It is assigned to the possession and use of municipal enterprises and institutions or is in the possession and use of the municipality itself.
Public and religious organizations have the right of ownership of their property and can use it only to achieve the goals provided for by the constituent documents of these organizations. State and municipal property can be transferred into the ownership of citizens and non-state legal entities (privatized) in the manner prescribed by privatization laws. In this case, the rules contained in the Civil Code of the Russian Federation on the acquisition and termination of property rights are additionally applied.
Acquisition of property rights.
A person who has manufactured (created) a new thing for himself acquires ownership rights to it.
The right of ownership to property that already has an owner can be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction for the alienation of this property.
In the event of the death of a citizen, the ownership of his property passes to his heirs, and when a legal entity is reorganized, the ownership of his property passes to his legal successors.
A member of a housing, dacha, or garage cooperative who has made his full share contribution acquires ownership of an apartment, dacha, garage, etc.
The right of ownership of property subject to state registration (buildings, structures, some movable property) arises from the moment of state registration.
The right of ownership to a new movable thing made by a person by processing from materials belonging to him is acquired by the owner of these materials, and only in cases where the cost of processing significantly exceeds the cost of the materials, and the person who carried out the processing acted in good faith, the right of ownership is acquired by the processor.
Complex questions of ownership arise regarding unauthorized construction (for example, structures erected without obtaining the necessary permits). The general rule states that a person who has carried out an unauthorized construction does not acquire ownership rights to it. The unauthorized construction is subject to demolition; it cannot be sold or rented.
Ownership of an unauthorized structure may be recognized by the person who owns the plot of land where the structure is located (with reimbursement of construction costs). And only if the plot of land on which the unauthorized building is erected is provided in the prescribed manner to the person who carried out this construction, can the court recognize his right of ownership of this building.
Important practical significance has the moment from which the thing transferred under the contract is considered the property of the acquirer (buyer). After all, it is from this moment that the risk of accidental loss or damage to the item passes to the acquirer. In cases where the alienation of property is subject to state registration, the ownership right passes to the acquirer from the moment of registration. In most other cases, this point is determined in the contract. But if it is not specified in the contract, then ownership passes to the buyer at the time of transfer of the thing.
Transfer is the delivery of a thing (transfer from hand to hand). But if the acquirer is far from the person transferring the thing, and the thing is transported (transported) by a third party (carrier), then the moment of transfer of ownership to the acquirer depends on which party is obliged to deliver the thing: if the thing is delivered by the seller, then it becomes the property of the acquirer after delivery; if the seller is not entrusted with the obligation to deliver the thing, then the ownership of it passes to the purchaser at the time of delivery to the carrier (or to a communications organization for mailing).
Finder lost item is obliged to return it to the owner (with a remuneration of up to 20% of the value of the item). If the owner of the find is unknown, the finder is obliged to report the find to the police or local government. The finder of the thing can become its owner 6 months after the statement of discovery, if the owner of the thing is not found.
However, if a thing is found in a premises or on a vehicle, it is subject to gratuitous surrender to the person representing the owner of this premises or vehicle.
Relatively new to Russian legislation are the rules on the acquisition of property rights by virtue of acquisitive prescription. These rules are that a citizen or legal entity who in good faith, openly and continuously owns any property as his own for a long period of time becomes its owner on the basis of acquisitive prescription. The acquisitive limitation period is: for real estate 15 years, for movable property - 5 years. But for property that is subject to state registration, the right of ownership arises in the person who acquired this property by virtue of acquisitive prescription only from the moment of such registration (Article 234 of the Civil Code of the Russian Federation).
Termination of ownership
Ownership rights are usually terminated at the will of the owner. This is, first of all, the alienation (sale) of a thing or a direct or indirect waiver of ownership.
There are frequent cases of termination of property rights against the will of the owner: loss of property, its destruction, as well as forced seizure of property from the owner.
Forced seizure mainly refers to the following cases:
1. Due to the obligations of the owner, foreclosure may be applied to his property. Usually it is carried out by court order.
2. The owner may have property that cannot belong to him by law. For example, a public organization has property that cannot be used for the purposes of its statutory activities. Such property must be voluntarily alienated (sold, transferred) by the owner within one year from the moment ownership rights arise. If this is not done, then it will be forcibly confiscated from the owner by a court decision (with compensation to the owner for its value).
3. If a land plot is confiscated from the owner, the buildings erected on this plot are also confiscated from him for compensation.
4. Particularly valuable and state-protected cultural assets can be confiscated (purchased) from the owner by court decision if they are maintained in a mismanaged manner, which threatens their loss.
5. In the event of natural disasters and other emergency circumstances, property can be purchased from the owner (requisition).
6. For a crime or administrative offense, property in the form of a sanction can be confiscated from the owner free of charge by a court decision or in an administrative manner (confiscation) (Article 245 of the Civil Code of the Russian Federation).
Common property
Property that is owned by two or more persons belongs to them under the right of common ownership (Article 244 of the Civil Code of the Russian Federation). There is a distinction between common shared property and common joint property. These are two different categories with significant features.
In shared ownership, the shares of each owner are determined; in joint ownership such shares are not defined. The total cost is shared, with the exception of cases established by law that provide for the formation of joint ownership. But even in these cases, by agreement of all or some of the participants in joint ownership, such property is transformed into shared ownership.
In shared ownership, the shares of individual owners are determined by law or agreement of the parties. If this is not the case, then the shares are considered equal (Article 245 of the Civil Code of the Russian Federation).
Possession, use and disposal of property in shared ownership is carried out by agreement of all owners.
Fruits, products and income from the use of property that is in shared ownership are included in the common property and are distributed among the participants in the common property in proportion to their shares.
Each participant in shared ownership has the right to sell his share to any person. However, in this case, the remaining participants in shared ownership have a pre-emptive right to purchase the share being sold at the price for which it is sold. In practice, this pre-emptive right to purchase is exercised as follows.
The seller of a share is obliged to notify the other participants in shared ownership in writing of his intention to sell his share to an outsider, indicating the price and other conditions of sale. If the remaining participants in shared ownership do not acquire this share within a certain period of time (1 month for real estate and 10 days for movable property), then the seller has the right to sell his share to any person. If the seller does not notify the other participants about the upcoming sale, then any participant in shared ownership has the right to demand in court, within three months, that this share be transferred to his ownership.
The pre-emptive right does not apply if the share is transferred free of charge or sold at public auction.
The law provides that joint (not shared) property arises among spouses, as well as among members of a peasant (farm) household. Joint property of spouses extends to property acquired during marriage. However, a marriage contract may be concluded between the spouses, establishing a different regime for this property. Property that belonged to each of the spouses before marriage, as well as property received as a gift or as an inheritance by one of the spouses, is not included in the joint property of the spouses.
The joint ownership of the members of a peasant (farm) enterprise includes land, buildings, equipment, equipment, fruits, products and income.
The disposal of jointly owned property is carried out by agreement of all participants. However, if the transaction is made by one of the participants in joint ownership, the consent of the other participants is assumed.
Other real rights
Along with the right of ownership, there are other rights to a thing. They belong not to the owners of the thing, but to other owners. The following types of property rights are distinguished:
1) lifelong inheritable ownership of a land plot (Articles 265 - 267 of the Civil Code of the Russian Federation);
2) permanent (indefinite) use of a land plot (Articles 268 - 272 of the Civil Code of the Russian Federation);
3) passage (travel) through a neighboring land plot;
laying communications on a neighboring land plot or building (easements) (Articles 244 - 277 of the Civil Code of the Russian Federation);
4) economic management (Articles 294 - 295 of the Civil Code of the Russian Federation);
5) operational management (Article 296 of the Civil Code of the Russian Federation).
The last two property rights deserve special attention.
The right of economic management can be established only by the owner of state or municipal property. It is provided to a state or municipal unitary enterprise and applies to any property of such an enterprise - both transferred to it by the owner and received by the enterprise through transactions or produced by it. The right of economic management assigned to such an enterprise is that the enterprise uses (exploits) this property to make a profit, but under the control of the owner. The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise.
An enterprise owns and uses property that belongs to it under the right of economic management. It can independently dispose of such property if it belongs to the category of movable. As for real estate, an enterprise can dispose of it (sell, lease) as a general rule only with the consent of the owner.
The right of operational management is granted to the owners of state and municipal property, the so-called state-owned enterprises. This right can also be assigned by any owner (both state and other) to the institution ( non-profit organization), owner financed.
The content of the right of operational management is narrower than the right of economic management. Property under operational management can be used by its owner only in accordance with the goals of the organization and the owner’s assignments. Moreover, the owner can seize excess and unused property or property that is not used for its intended purpose. A state-owned enterprise independently manages only its own products. Disposal of any other property is carried out with the consent of the owner.
The property under the operational management of the institution is divided into two parts: 1) property acquired from funds allocated to the institution according to the estimate; it can be alienated only with the consent of the owner; 2) income received by the institution from activities in which it has the right to engage, as well as property acquired from such income, shall be at the independent disposal of the institution.
There are other categories of property rights, for example, the right to manage property exercised by a trustee, as well as the right of pledge.
Ownership and other proprietary rights to land.
Persons who own a land plot have the right to sell it, donate it, pledge it, lease it or dispose of it in another way, unless the relevant lands are excluded from circulation or limited in circulation on the basis of law.
The law defines lands for agricultural and other purposes, the use of which for other purposes is not permitted or limited.
As a general rule, ownership of a land plot extends to the surface (soil) layer and enclosed bodies of water, as well as to the forest and plants located on the site. The owner of a land plot has the right to use at his own discretion everything that is above and below the surface of this plot, unless otherwise provided by law (for example, the law on subsoil and the law on airspace).
Citizens have the right to freely, without any permission, be on land plots that are not closed to public access and are in state or municipal ownership, and to use the natural objects located on these plots, but only to the extent permitted by legal acts, as well as by the owner of this plot .
The owner of a land plot can erect buildings and structures on it, carry out their reconstruction and demolition, and allow other persons to build on his plot. If the ownership of a building or structure belonging to the owner of a land plot is transferred to another person, then the rights to that part of the land plot that is occupied by the building (structure) and necessary for its use are also transferred to the acquirer of the building (structure). By agreement of the parties, the boundaries of the land plot transferred to the acquirer may be determined differently.
A land plot can be seized from the owner for state or municipal needs through redemption. The owner of the land plot must be notified in writing about the upcoming redemption no later than one year before the redemption. The purchase of part of a land plot is permitted only with the consent of the owner.
The redemption price is determined by agreement with the owner. It includes market price land and buildings, as well as losses caused to the owner. If the owner does not agree with the confiscation of a land plot from him or with the redemption price, the issue of confiscation of the land plot is resolved in court at the request of the relevant government body.
A land plot can be forcibly seized from the owner if the plot is used not in accordance with its purpose or in violation of the law.
Ownership and other proprietary rights to residential premises
Residential premises are used in accordance with their purpose. The owner exercises the rights of ownership, use and disposal of this property.
A citizen who owns a residential premises can use it for personal residence of his family members. Residential premises may be rented out by their owners to other persons for residence on the basis of an agreement (Article 288 of the Civil Code of the Russian Federation). The placement by the owner of enterprises, institutions, and organizations in the residential premises belonging to him is allowed only after the transfer of such premises to non-residential premises.
The owner of an apartment in a residential apartment building also owns a share in the ownership of the common property of the house (common premises of the house, bearing structures, electrical, sanitary equipment). This share in the ownership of common property cannot be alienated separately from the ownership of the apartment.
Apartment owners to ensure the operation of residential apartment building may form associations of apartment (housing) owners operating as non-profit organizations.
Members of the owner's family living in residential premises belonging to him have the right to use this premises under the conditions provided for by housing legislation. When the ownership of a residential building or apartment is transferred to another person, family members of the previous owner retain the right to use the residential premises.
Protection of property rights and other proprietary rights
Ownership and other property rights may be violated. Then the question arises about their protection
The right of ownership can be violated in two ways: either the owner is deprived of his property, and he cannot own, use and dispose of it, or the owner is prevented from using the property and disposing of it.
In the first case, the owner has the right to file a claim for the seizure of property from someone else’s illegal possession, and in the second, a claim for the removal of illegal obstacles to the use of his property (Articles 301 - 303 of the Civil Code of the Russian Federation).
If the owner demands the removal of his property from someone else’s illegal possession, then, first of all, it is established whether the acquirer (new owner) of the property is in good faith or in bad faith. In this case, a purchaser who did not know and could not know that he acquired property from a person who did not have the right to alienate it is considered bona fide. On the contrary, the acquirer who knew or at least should have known about it is considered dishonest. Property from an unscrupulous purchaser is always returned to the owner, in all cases.
Property from a bona fide purchaser is returned to the owner only in two cases:
1) if this property was acquired by him free of charge (for example, given to him) or
2) if the property was lost by the owner or the person to whom the owner transferred the property into possession, or stolen from both, or left their possession in some other way against their will.
In other cases, the property remains with the bona fide purchaser.
Special rules are established in relation to money and bearer securities: they cannot be demanded from a bona fide purchaser.
If the property is subject to return to the owner, then the owner has the right to additionally receive from the illegal owner all income that was actually received or should have been received by the illegal owner. In this case, an unscrupulous acquirer is obliged to compensate the owner for these incomes for the entire period of his ownership, and a bona fide owner - from the moment when he learned or should have learned about the illegality of his possession or received a summons for the claim. In turn, the owner, as a bona fide owner, has the right to demand from the owner compensation for incurred or necessary expenses on the property from the time from which the owner is due income from the property.
The owner may demand the elimination of any violations of his rights, even if these violations are not related to the right of ownership.
Finally, an owner who is not the owner, if he owns the property legally, has the right to protect his property rights in the same way as the owner. He can defend his right to ownership against any person and even against the owner.
