The emergence of property rights general provisions. Grounds for the emergence of property rights: concept and classification Grounds for the emergence of property rights concept and classification

Introduction ……………………………………………………………………… ..… 3

1. Ownership: concept and content …………………………… ...… .6

The concept of property rights …………………………………………… ..... 6
Content of the property right …………………………………………. ... eight

Initial Methods for Acquiring Ownership ………… ..16
Derivative Methods of Acquisition of Ownership Rights ……………… 22

Introduction
The importance and significance of property relations are enshrined in the Constitution of the Russian Federation, which establishes a number of fundamental provisions on property. Article 8 of the Constitution of the Russian Federation states: in the Russian Federation private, state, municipal and other forms of property are recognized and protected in an equal manner. 1 This basic provision is developed and concretized in subsequent articles of the Constitution of the Russian Federation (Articles 35, 36), securing the powers of the owner. According to Art. 35 of the Constitution of the Russian Federation, the right to private property is protected by law, everyone has the right to own property, own, use and dispose of it, the right of inheritance is guaranteed.
Based on these constitutional provisions, the Civil Code formulates a system of rules on property rights (Section II, Articles 209-306), which are supplemented by other federal laws and other legal acts. The property right related to the foundations of the state structure is a complex institution, and the norms on this issue are contained in many acts of state law (Budget Code, Law on General Principles of Organization of Local Self-Government), laws of environmental law (Land Code, Forestry Code, Water Code, Subsoil Law). However, the main regulator of property relations has always been and remain the norms of civil law: the concepts, decisions and terminology enshrined in the Civil Code are used in acts of other legal branches when they touch upon issues of property rights.
Ownership of any property can arise only in the presence of a certain legal fact, and sometimes their combination. These legal facts are called the grounds for the emergence of property rights.
Ownership belongs to the category of property rights, and property rights are an integral part of the civil legislation of any developed state. The problem of property rights today occupies a special place in our country due to the fundamental role of economic property relations, which determine the nature of social relations. The current transitional period is characterized by a complex interweaving of the most diverse methods of acquiring and terminating property rights, often opposite in their focus and social purpose. On the one hand, the privatization process is rapidly proceeding, in which state and municipal objects are transferred to the ownership of legal entities and individuals, on the other hand, the opposite is also observed, when property that previously belonged to citizens, cooperative, public and other organizations comes into state or municipal ownership. All this determines the relevance of the issue of the grounds for the emergence of property rights. This topic remains relevant also due to the transition to a market economy and the development of commodity-money relations in modern Russia. The study of the grounds for the emergence of property rights is the most important issue of civil law.
The object of this study is social relations, namely economic property relations, which characterize the appropriation of things as elements of the material wealth of society between different persons (individuals, social groups, the state).
The subject of the research is normative legal acts regulating the sphere of property relations.

The purpose of this work is to identify legal problems associated with the grounds for the emergence of property rights. To achieve this goal, it is necessary to consistently solve a number of tasks, namely:

define the concept and content of property rights;
consider the concept and classification of the grounds for ownership;
analyze the ways of the emergence of property rights on the basis of civil legislation.

1. Ownership: concept and content
1.1. Ownership concept
Ownership is one of the cornerstones of jurisprudence. The term "property" is often used in a wide variety of meanings. In some cases, it is used as a synonym, equivalent to the concepts of "property" or "things", speaking, for example, about "transfer of property" or "acquisition of property". In other cases, it is believed that we are talking about a purely economic relation, and sometimes, on the contrary, this concept is identified with a purely legal category - the right of ownership, etc. As a result of this confusion, erroneous ideas and stereotypes about property are formed: in particular, the widespread opinion that economic property relations are always legally formalized only with the help of property rights. Meanwhile, there are significant differences in the economic and legal understanding of property.
Property is, of course, not things or property. This is a certain economic (factual) relationship that is subject to legal registration. 2 The economic relationship of property, firstly, consists of the relationship between people about specific property (material goods). It consists in the fact that this property is appropriated by a specific person who uses it in his own interests, and all other persons should not prevent him from doing so; secondly, it also includes the attitude of a person to the appropriated property (material wealth, including a thing) as his own (because an ordinary person treats his property differently than someone else's).
The law formalizes both named sides of economic (actual) property relations: and relations between people about
property, giving the owner the opportunity to protect against unjustified encroachments by other (third) parties, and his attitude to the appropriated property, defining the boundaries of its permitted use. In the first case, the absolute nature of property relations, including property relations, is manifested. In the second case, we are talking about the content and the real scope of the powers of the owner (or the subject of another proprietary right). Thus, the legal form of property relations (appropriation) is predetermined by their economic content. 3
Property as an economic category is the relationship between people and their collective entities about the property they own. By virtue of these relations, based on the distinction between "ours" and "others", some persons have property and protect it, while others must respect someone else's property, not harm the owner. Property relations existed even under the primitive communal system, that is, when there was no state or law. In order to survive, people appropriated the gifts of nature, tamed animals, made devices for fishing and hunting. And if someone from a foreign tribe tried to take away their property, they defended it.
Later, with the development of productive forces, a division of labor took place, it became possible to appropriate not only natural products of nature, but also the benefits, values ​​created by people in the production process.
The object of ownership can be all material objects of the world around us, which in Art. 128 GK are called things. These are, first of all, land and other natural resources, enterprises, buildings, equipment, vehicles, raw materials, finished products, as well as securities and money. Civil law divides thingson real estate, the objects of which are firmly connected with the land, and other - movable property (Art. 130 of the Civil Code). This gradation is of great legal importance: real estate and transactions with it are subject to mandatory state registration.
Thus, economic property relations are relations of appropriation by specific persons of certain property (material goods), entailing its alienation from all other persons and providing the possibility of economic domination over the appropriated property, combined with the need to bear the burden of its maintenance.

1.2. Content of ownership
The essence of property relations is the ownership of material goods, primarily the means of production. The content of property is the relationship of ownership, use, disposal of the property belonging to a person by his power and at his own discretion. With the emergence of the state and law, it became necessary to consolidate the property relations that had developed in society, and to provide legal protection for the interests of owners. Property relations are consolidated and protected with the help of the institution of property rights. 4
Ownership can be viewed in an objective and subjective sense. In an objective sense, the right of ownership is a complex multi-sectoral legal institution, that is, a set of legal norms included in the sub-branches of property, constitutional, administrative and criminal law, which establish the ownership of property by certain persons, assign to them
the possibilities of its use and provide for legal means of protecting the rights of owners. In the Civil Code, norms on property and other property rights are grouped in section. II, in chap. 13-20.
In a subjective sense, the right to property is the possibility of certain behavior permitted by the law to the entitled person. From this point of view, it is the broadest real right in content, which makes it possible for its owner - the owner, and only him - to determine the nature and directions of use of his property, exercising complete economic domination over it. 5
The content of the owner's powers can be disclosed using the traditional for Russian civil law "triad of powers": possession, use and disposal of property (clause 1 of article 209 of the Civil Code of the Russian Federation). The right of ownership is a statutory opportunity to have this property in your farm. Possession can be legal or illegal (legal possession is based on any legal basis; illegal is not based). When considering disputes, they proceed from the presumption of legality of the actual owner. Illegal owners are conscientious and dishonest. Conscientious owner - if he did not know and should not have known about the illegality of his possession. Unscrupulous is the opposite. This division is important when claiming and is determined by the prescription in time. The long-standing owner can be recognized as the owner (Article 234 of the Civil Code of the Russian Federation).
The category of "good faith" is used in many normative acts of civil law. A correct understanding of the content of this category is of great importance for practice. Clause 3 of Article 10 of the Civil Code of the Russian Federation establishes: if the law makes the protection of civil rights dependent on whether these rights were exercised reasonably and in good faith, the reasonableness and good faith of the participants in civil legal relations are assumed.
It should be noted that earlier, in the Civil Code of the RSFSR in 1964, such a presumption was not enshrined; researchers made a conclusion about its existence based on an analysis of civil legislation. So, E. Bogdanov, based on the content of Art. 302 of the Civil Code of the Russian Federation and other civil law norms, concluded that "the conscientiousness of the participants in civil legal relations should be understood as the subjective side of their behavior: they do not and cannot know about the rights of third parties to the relevant property or about their other illegality." Satisfaction of the owner's vindication claim does not depend on the fact that the possession was illegal, but on the good faith or bad faith of the acquirer (Article 302 of the Civil Code of the Russian Federation). The presumption of good faith received legislative confirmation at the beginning in paragraph 3 of Art. 6 of the Fundamentals of Civil Legislation of the USSR and the republics of 1991, and then - in paragraph 3 of Art. 10 of the Civil Code of the Russian Federation. Property is always claimed from an unscrupulous owner, and from a bona fide owner, although unlawfully possessing someone else's property, only in cases specified by law (Article 302 of the Civil Code of the Russian Federation). Thus, a person who unlawfully but in good faith has taken possession of someone else's property can acquire ownership of it. 6
The right to use - represents the possibility of exploitation, economic or other use of property by extracting useful properties from it, its consumption.
The right to dispose - means the ability to determine the legal fate of property by changing its ownership, condition or purpose.
All three of these powers are closely related to each other, and the absence of any of these elements indicates the absence of ownership. 7
The designation of the owner's powers as a "triad" of possibilities is peculiar only to our national legal order. For the first time it was legislatively enshrined in 1832 in Art. 420 v. X, part 1 of the Code of Laws of the Russian Empire, from which it was then traditionally transferred to the Civil Codes of 1922 and 1964, and to the Fundamentals of Civil Legislation of 1961 and 1991, and to the Civil Code of the Russian Federation. eight
In their totality, the named powers exhaust all the possibilities provided to the owner. Ownership may be limited by law by establishing the intended use of property (land and residential premises), which serves to protect public interests. Restrictions on the right of ownership can be imposed in other cases established by law or agreement. Thus, the reduction of property rights to an abstract "triad" does not always fully characterize the opportunities provided to the owner. The point is not the number of powers, but to the extent of the real legal power over their property, which is provided and guaranteed by the current legal order.
For example, a legal entity that owns property on the basis of the right of economic management or operational management (Articles 294, 296 of the Civil Code of the Russian Federation) also owns, uses and disposes of property, but either within the limits determined by law, or within the limits determined not only by law, but also in accordance with the goals of their activities, the tasks of the owner or, with his consent, the purpose of the property. Consequently, such legal entities do not have control over the property and partially the ability to manage the property while maintaining, like the owner, the rights to own, use and dispose of the property. nine
Another example. In accordance with paragraph 4 of Art. 209 of the Civil Code of the Russian Federation, the owner can transfer his property in trust to another person (trustee). The transfer of property into trust does not entail the transfer of ownership to the trust manager, who is obliged to manage the property in the interests of the owner or a third party indicated by him.
In other words, the trustee has the rights of ownership, use and disposal of property, which are of a targeted nature. Property management is also targeted, and control over the property remains with the owner. The presence of such control also gives rise to the targeted nature of ownership, use and disposal of property and, of course, its management. In connection with the above, the conclusion suggests itself that the existence of the right to own, use and dispose of property is not sufficient for the emergence of ownership, or these rights have constituent elements that remain with the owner when the property is transferred into economic management, operational management or trust management. But then it can no longer be said that persons who are not owners have the rights to own, use and dispose of property. ten
The main thing in civil law is the ability to exercise property rights at your own discretion, guided by your own interests (clause 2 of article 209 of the Civil Code of the Russian Federation). E.V. Vaskovsky, in this sense, wrote that the right of property “provides its owner with the greatest measure of power that can exist in a hostel over corporal
things. " eleven
Civil law imposes on the owner the burden of maintenance and the risk of accidental loss or damage to his property, unless otherwise provided by law or contract (Article 210 of the Civil Code of the Russian Federation). But the owner's power over a thing is not unlimited. The owner can take actions that do not contradict the law and other legal acts, is obliged to take measures to prevent damage to health and the environment. The owner is obliged not to violate the rights and interests of other persons, the owner should not go beyond the exercise of civil rights (Article 10 of the Civil Code of the Russian Federation).
Thus, the reduction of property rights to an abstract "triad" of powers of ownership, use and disposal, and from this point of view, does not always characterize the real content of the opportunities provided to the owner. The point, therefore, lies not in the number and not in the name of the powers, but to the extent of the real legal power over their property, which is provided and guaranteed to the owner by the current legal order.
From this point of view, the main thing that characterizes the powers of the owner in Russian civil law is the ability to exercise them at his own discretion (clause 2 of article 209 of the Civil Code), i.e. It is up to him to decide what to do with the property he owns, guided solely by his own interests, taking any actions with respect to this property, which, however, do not contradict the law and other legal acts and do not violate the rights and legitimate interests of others. This is precisely the essence of the legal power of the owner over his property.

2. Grounds for the emergence of ownership
2.1. Classification of the grounds for the emergence of property rights
Legal relations are always in constant motion and interaction with each other. Civil legal relations are no exception in this sense. The movement of civil relations, their dynamics is determined by the order and method of the emergence, change and termination of the subjective rights and obligations of a person, which are the content of the corresponding legal relationship. Any legal relationship is the result of the interaction of the rule of law, legal personality and legal facts. 12
Civil law contains an extensive list of ways for a person to acquire the right to things. These methods by their nature represent various legal facts, the presence of which, along with an indication of such a possibility in the law, is associated with the emergence of a person's subjective right of ownership to a specific thing. At the same time, the Civil Code does not at all contain any clear systematization of the grounds for the emergence of property rights.
The grounds for the emergence (acquisition) of property rights are legal facts, a summary list of which is contained in Art. 8 of the Civil Code of the Russian Federation. From this point of view, it is important to note that both actions of persons and events that do not depend on the will of people can act as such law-generating, that is, legal facts entailing the emergence of ownership of certain property in specific persons. The first, for example, include various transactions for the alienation of property, and

to the second - the death of a citizen, causing hereditary legal relations.
The grounds for the acquisition of ownership are also called title deeds. Title ownership is the ownership of a thing based on any right (legal basis) arising from the corresponding legal fact - the title (for example, the ownership right based on the contract of sale of the thing or its transfer by way of inheritance). In contrast to this, titleless (actual) ownership is not based on any legal basis, although under the conditions established by law it can also entail certain legal consequences. 13
Ownership titles can be acquired in various ways, which are traditionally divided into two groups: initial, that is, independent of the rights of the previous owner to a given thing (including cases when there was no such owner before), and derivatives, in which the ownership of the thing arises by the will of the previous owner (most often - by agreement with him). The practical significance of this distinction is that in derivative methods of acquiring ownership of a thing, it is always necessary to take into account the possibility of the existence of rights to the same thing by other non-owners (for example, a lessee, a mortgagee, a subject of another limited property right). These rights are usually not lost when the owner of the thing changes, passing to the new owner, as if burdening his property.
In this regard, the old rule, not directly expressed, but implied by the law, operates, which originates in Roman private law: no one can transfer to another more rights to a thing than he himself has. fourteen
It is clear that no restrictions of this kind can apply to the original purchaser of the thing.
Thus, the difference between the initial and derivative methods of acquiring ownership is reduced to the absence or presence of legal succession - the transfer of the rights and obligations of the owners of the thing. In turn, this circumstance makes it possible to distinguish between the concepts of "grounds for the emergence of property rights" (titles of ownership) and "methods of acquiring property rights".
2.2. Initial Methods for Acquiring Ownership
The initial methods of acquiring ownership are those in which ownership of the property arises
regardless of the rights of the previous owner, in the absence or uncertainty of such a property that was not previously someone else's
or property. The legislator identifies the following initial methods of acquiring property rights. "

Acquisition of ownership of a newly manufactured item (clause 1 of article 218 of the Civil Code of the Russian Federation). The right of ownership here arises to a thing that did not exist before, and the owner becomes the one who made it or created it for himself in compliance with the law and other legal acts. 15 A newly made thing can be both movable and immovable. Real estate is subject to state registration, and the ownership right to it arises from the moment of such registration (Articles 131, 218 of the Civil Code).
Processing or specification (Article 220 of the Civil Code of the Russian Federation). The right of ownership here arises to a thing that is made by one person from the material of another person, and the ownership of this thing is acquired by the owner of the material, unless otherwise provided by the contract. The contract may provide that the owner can become the person who made the thing - the processor or the specifier, if the specifier uses someone else's material in the absence of an agreement with the owner of the material. A specifier can become the owner of a new thing only if three conditions are present simultaneously: the cost of his labor significantly exceeds the cost of the material; the specifier did not know and could not know that he was using someone else's material; the specifier has done the processing for himself and not for commercial purposes. In the absence of a contract, the owner of the material who has become the owner of the thing is obliged to reimburse the specifier for the cost of processing, and the specifier who has become the owner of the thing is obliged to reimburse the owner for the cost of the materials. 16
Turning into ownership of things that are publicly available for collection (picking berries, fishing, etc.) (Article 221 of the State Committee for the Russian Federation). In this case, the right of ownership to these things is acquired by the person who collected or extracted them, provided that this collection is allowed in accordance with the law, the general permission of the owner or local custom. The person who collected or extracted acquires ownership of these things, which at the time of collection and extraction constitute someone's property (for example, the state or the municipality).
Acquisition of ownership rights to ownerless property (clause 3 of Art.218; Clause 225 and 226; Clause 1 of Art.235, Clause 236 of the Civil Code of the Russian Federation), a find (Clause 227-229 of the Civil Code of the Russian Federation), neglected animals (Art.230- 232 GKRF), treasure (Art.233 GKRF). Property as an object of law does not always have a subject to whom it belongs, and due to certain legal facts it may turn out to be ownerless. An ownerless thing is a thing that does not have an owner or the owner of which is unknown, or a thing, the right to which the owner has refused. Refusal from the thing does not entail the termination of the rights and obligations of the owner until the right of ownership is acquired by another person. Real estate ownerless property at the request of the local government is registered by the body that registers the right to real estate at the place of its location. Upon the expiration of one year after registration, the municipal property management body may apply to the court with a demand for the recognition of real estate as municipal property, and in case of refusal, it can be re-accepted by the owner who left it or acquired into ownership by prescription. Movable ownerless property may be turned into ownership by other persons in the manner provided for in paragraph 2 of Art. 226 of the Civil Code of the Russian Federation. If the value of the thing is lower than the minimum established by law (5 times the minimum wage), then the person, having started using the thing, or having performed other actions to turn it into ownership, may become the owner of the thing. Other things come into the ownership of the person who took possession of them, if, according to his application to the court, they are recognized as ownerless. 17 The legal regime of finding, neglected animals and treasure is determined by Art. 227-233 of the Civil Code of the Russian Federation. A find is a thing that has been removed from the possession of the owner or another person entitled to possession against his will as a result of loss and has been discovered by someone. In case of a find, chance takes place on the side of both the one who lost the thing and the one who found it. Article 227 of the Civil Code defines the scope of responsibilities of the person who found the lost thing. First, this person is obliged to notify the person who lost the thing or another person who has the right to receive it. Secondly, if the specified person or his place of stay is unknown - report the finding to the police or local government. The person who has found the thing has the right to keep it with himself or to deposit it with the police, local self-government body or a person indicated by them. The finder shall be liable for the loss or damage of the thing only in case of intent or gross negligence and within the limits of the value of the thing. If within 6 months from the date of notification to the police, the person entitled to receive the found thing is not established, the finder acquires ownership of this thing, and in case of his refusal, it goes into municipal ownership. The finder is not entitled to a reward if he did not declare the find or tried to conceal it. eighteen

The property right belongs to the number of subjective rights, therefore, like any other subjective right, it can arise only in the presence of a certain legal fact. And sometimes their combination (legal composition). These legal facts are called the grounds for the emergence of property rights. The grounds for the emergence of the right of ownership are called in the Civil Code of the Russian Federation and in Chapter 14 the most common of them are given.

It should be noted that in modern legal literature, along with the term "The basis for the emergence of property rights", some authors use the term "methods of acquiring property rights", often using them as identical concepts, although the already well-known Russian civil scientist D.I. Meyer noted that "it is easy to confuse ways of acquiring property rights with ways of acquiring other rights." This issue is complex and debatable in the science of civil law, among scientists there is no consensus regarding the semantic content of these two categories and their relationship to each other. This state of affairs can be explained primarily by the fact that the Civil Code of the Russian Federation does not contain a legal definition of “ways of acquiring property rights”, the Code uses only the term “grounds”, and the term “ways of acquiring property rights” is a doctrinal concept. In addition, in legal science, a general system for constructing a unified and consistent theory of legal facts has not developed. However, it is especially important for a lawyer to carefully consider this issue, since its resolution is of practical importance.

In the legal literature, there are different approaches to this issue. As already mentioned above, some scholars put an equal sign between “foundations” and “means”, considering them as interchangeable categories denoting legal facts established by law that underlie the emergence of property rights. Sometimes, without directly asserting their identity, the authors use them without making a clear distinction between them. In other existing approaches, the authors endow each of these concepts with its own special legal meaning and content.

According to the point of view of the famous Russian legal scholar L.V. Sannikova, the acquisition of property rights should be understood as a set of legal and actual actions with which the law connects the emergence of property rights. In this sense, legal actions are called “grounds”, and actual actions are called “means” of acquiring property rights. At the same time, it is emphasized that the "foundation" by itself is not enough for the property right to arise, it is necessary to perform certain actual actions - "ways". As an argument L.V. Sannikova gives an example with a purchase and sale agreement, which D.I. Meyer. In clause 2 of Art. 218 of the Civil Code of the Russian Federation, the sale and purchase agreement is indicated as the basis for acquiring ownership, however, in Art. 223 of the Civil Code of the Russian Federation, it is noted that the buyer's right of ownership arises only from the moment of the actual transfer of the thing. It follows that the conclusion of a sale and purchase agreement gives the buyer not the right of ownership of the thing, but only the right to demand its transfer. That is, in the event of a dispute between the parties to these contractual relations, the buyer will go to court with a claim not for the protection of property rights, but with a demand to compel the defendant to fulfill the obligations arising from the concluded contract of sale or with a claim to recover damage incurred by non-performance contract and the demand for restitution.

This point of view is very interesting, but it is not completely accurate. If, to recognize the legal significance of actual actions, without the commission of which the emergence of property rights is impossible, then the distinction between actual and legal actions is lost. And this, in turn, will lead to the fact that it will be difficult to determine the place and role of "specialties" as actual actions in the system of legal facts. Especially when analyzing specific cases of the emergence of property rights. In one situation, "ability" as an actual action will be a special circumstance that has independent legal significance and exist next to the "basis". For example, the basis for the emergence of the right of ownership in the order of inheritance will be a will or the Law, and in order to become the owner directly, it is necessary to perform a certain action - “inheritance”. In another situation, "ability" will be one of the characteristics of the action, recognized by the "basis", that is, coincide with it. For example, "government" is named as the basis in the Civil Code of the Russian Federation in Art. 221, is at the same time a "kind", which is manifested in a single action of a person as a legal act.

The following point of view on this issue is also noteworthy. According to this position, "abilities" underlie the emergence of "basis", as if preceding the latter. The grounds are referred to here as title deeds. Title ownership is the ownership of a thing based on any right (legal basis, or title) arising from the corresponding legal fact. These titles are acquired in various ways specified in Chapter 14 of the Civil Code of the Russian Federation. It seems that such a position is quite possible, but hardly applicable as a general rule.

Thus, proceeding from the fact that it is objectively difficult to unambiguously resolve the issue of the relationship between the concept of "basis" and "means" of acquiring property rights, in the scientific literature the emphasis is on the category of "basis" as a legal concept used in the law, and the term "means "As a substitute for the term" basis ".

For further analysis of specific methods of acquiring property rights, we need to refer to the classification of methods (grounds) for acquiring property rights.

In civil science, the grounds for the emergence of property rights have long been customary to subdivide into primary and derivative ones. It is understood that with derivative methods, the right of the new owner is based on the right of the previous owner, and with the original methods, the ownership right is either acquired for the first time, or the right of the new owner does not depend on the volume and nature of the rights of the previous one. Thus, with the initial methods, the ownership right is acquired in full, and with derivatives - in the amount that the previous owner had. Such a division of methods into initial and derivative ones is a consequence of doctrinal interpretation; this classification is not given in the law.

The distinction between the ways in which the right of ownership of derivatives and initial ones arises is of practical importance, which lies in the fact that in case of derivative methods of acquiring the right of ownership of a thing, in addition to the consent (will) of the owner, it is also necessary to take into account the possibility of the existence of the rights of other persons - non-owners to the same thing (for example, pledgee, lessee, subject of limited property rights), since these rights are usually not lost when the owner of the thing changes.

The delineation of the ways in which property rights arise is carried out on various grounds (criteria). At the same time, some authors give preference to the criterion of will, others - to the criterion of succession.

In accordance with the criterion of will, with the initial methods, the property right is acquired independently of the will of the previous owner (or for the first time), and with derivatives - at the will of the previous owner and with the consent of the acquirer.

It seems that the distinction between methods according to the criterion of will is not entirely successful. The law directly names cases when the right of ownership is transferred to a person in the absence of the will of the previous owner. So, the heir, who has the right to a compulsory share in the estate, acquires ownership of the property against the will of the testator, expressed in the will. Or, in the event of a levy on the property under the obligations of the owner (within the framework of Art. 237 of the Civil Code of the Russian Federation), the powers to the acquirer are transferred to the same extent as they existed for the first, because however, there is no reason for the termination of encumbrances.

The concept based on the succession criterion is the most common in the legal literature and is used b O Greater recognition, since it allows you to explain the preservation of encumbrances in the event of a change of ownership. According to this concept, the initial methods include methods based on which there is no legal succession, while derivatives are methods that rest on the right of succession.

In accordance with the above classification, the initial methods include:

36. Acquisition of the right of ownership to a newly manufactured thing for fruits, products, incomes, unauthorized construction (under certain conditions);

processing;

ownership of publicly available things;

acquisition of ownership of ownerless property, treasure, find, neglected animals, movable things from which the owner refused (abandoned things);

acquisitive prescription.

Derivative methods of acquiring ownership rights include the acquisition of this right:

37. on the basis of a contract or other transaction on the alienation of a thing;

by way of inheritance after the death of a citizen;

by way of succession upon reorganization of a legal entity.

Thus, ownership is acquired as a result of a person's legal and factual actions. Legal actions are referred to as "grounds", actual actions - "allowances." Although the question of the relationship between these two categories in legal science is still controversial. The methods (grounds) for acquiring property rights are divided into initial and derivative ones, and this division is based on the criterion of succession.

What are the grounds (titles) for the acquisition (emergence) of private property rights?

Private property can be in the form of property of citizens (several citizens), in the form of property of legal entities. Moreover, various combinations are not excluded: property can be the private property of legal entities, established only by citizens; citizens and organizations.

The acquisition of property rights is divided into initial (when the property right arises for the first time) and derivatives. Ownership arises:

as a result of the manufacture of a thing on their own from materials belonging to the owner or ownerless;

as a result of the use of property (fruits, products, income);

as a result of the acquisition of property by transaction (purchase and sale, exchange, donation);

as a result of inheritance or succession;

by the right of the first one to find an ownerless thing (find, treasure);

by the statute of limitations of ownership.

The ownership of real estate arises upon registration.

The grounds for the emergence (acquisition) of property rights are legal facts, a summary list of which is contained in Art. 8 of the Civil Code of the Russian Federation. From this point of view, it is important to note that both actions of persons and events that do not depend on the will of people can act as such law-generating, that is, legal, facts that entail the emergence of ownership of certain property in specific persons.

The grounds for the acquisition of ownership are also called title deeds. Ownership titles can be acquired in various ways, which are traditionally divided into two groups: initial, that is, independent of the rights of the previous owner to a given thing (including cases when there was no such owner before), and derivatives, in which the ownership of the thing arises by the will of the previous owner (most often - by agreement with him). The practical significance of this distinction is that in derivative methods of acquiring ownership of a thing, it is always necessary to take into account the possibility of the existence of rights to the same thing by other non-owners (for example, a lessee). These rights are usually not lost when the owner of the thing changes, passing to the new owner, as if burdening his property. In this regard, the old rule, not directly expressed, but implied by the law, operates, which originates in Roman private law: no one can transfer to another more rights to a thing than he himself has. It is clear that no restrictions of this kind can apply to the original purchaser of the thing.

How do the concepts of “grounds (titles) for the emergence of property rights” and “methods of acquiring property rights” relate?

The grounds for the emergence (acquisition) of property rights are various legal acts that give rise to, that is, real life circumstances, in accordance with the law entailing the emergence of ownership rights to certain property from specific persons.

The grounds for acquiring property rights in modern civil law literature are also referred to as ways. However, D.I. Meyer, an outstanding pre-revolutionary civilist, pointed to the need to differentiate these concepts, noting that "it is easy to confuse the methods of acquiring property rights with the methods of acquiring other rights."

The danger of such confusion can be most clearly demonstrated by the example of a sale and purchase agreement, which is indicated as the basis for acquiring ownership in paragraph 2 of Art. 218 of the Civil Code of the Russian Federation. The conclusion of a sale and purchase agreement gives the buyer not the right of ownership, but only the right to demand the transfer of the thing. According to Art. 223 of the Civil Code of the Russian Federation, the right of ownership, as a general rule, arises from the moment the thing is transferred.

The grounds for the acquisition of ownership are also called title deeds, as mentioned above. Title ownership is the ownership of a thing based on any right (legal basis, or title) arising from the corresponding legal fact, for example, the ownership right based on a contract of sale of a thing or on its transfer by way of inheritance. In contrast to this, titleless (actual) ownership is not based on any legal basis, although under the conditions established by law it can also entail certain legal consequences.

Various criteria are proposed for distinguishing between methods of acquisition. Some scholars believe that it should be based on the will of the previous owner: with the initial methods, the property right is acquired independently of his will or for the first time, and with derivatives - at the will of the previous owner and with the consent of the acquirer.

However, the above criterion is not always confirmed. First of all, in cases where the emergence of ownership of the acquirer is due to its compulsory termination from the previous owner. So, when foreclosure is levied on property under the obligations of the owner (within the framework of Art. 237 of the Civil Code of the Russian Federation), the powers to the acquirer are transferred to the same extent in which they existed with the first, tk. however, there is no reason for the termination of encumbrances.

Professor E.A. Sukhanov expresses the opinion that property titles can be acquired in various ways, which are traditionally divided into two groups:

Initial, i.e. not dependent on the rights of the previous owner to the given thing (including cases when such an owner did not previously exist at all);

Derivatives, in which the right of ownership to a thing arises at the will of the previous owner (most often - by agreement with him).

The initial methods of acquiring property rights include:

Creation (production) of a new thing, to which there was not and could not have been established by anyone's property rights;

Processing and collection or extraction of things generally available for these purposes;

Under certain conditions - unauthorized construction;

Acquisition of ownership rights to ownerless property, including property that the owner abandoned or lost his right to.

Derivative methods of acquiring ownership rights include the acquisition of this right:

On the basis of an agreement or other transaction on the alienation of a thing;

In the order of inheritance after the death of a citizen;

By way of succession upon reorganization of a legal entity.

The practical significance of such a distinction is that in derivative methods of acquiring ownership of a thing, in addition to the consent (will) of the owner, it is also necessary to take into account the possibility of the existence of the rights of other persons - non-owners to the same thing (for example, a mortgagee, lessee, subject of limited property rights). These rights are usually not lost when the owner of the thing changes, passing to the new owner, as if burdening his property.

Thus, the difference between the initial and derivative methods of acquiring property rights, in fact, boils down to the absence or presence of legal succession, i.e. succession of rights and obligations of the owners of the thing. In turn, this circumstance makes it possible to distinguish between the concepts of "grounds for the emergence of property rights" (i.e., titles of ownership, or legal facts) and "methods of acquiring property rights" (i.e., legal relations arising on the basis of relevant legal facts) ...

Many ways in which property rights arise can be used by any subject of civil law. Therefore, they are called general or general civil methods of acquiring property rights. Such are, for example, legal relations arising on the basis of various transactions. There are, however, and special methods for the emergence of this right, which can be used only by strictly defined subjects.

Department of Civil Law Disciplines

GRADUATION

QUALIFICATION

WORK

Female students

On the topic : The emergence of ownership. Acquisition methods

Supervisor:

Reviewer:

"Admit to protection"

« ____ » _______ __ G.

Protection date " ____ » _______ Grade _____________ _____

Introduction……………………………………………………………….

1. The emergence of property rights. General Provisions……
1.1. Institute of the emergence of property rights in the history of civil law …………………………………………………………………… ..
1.2. Basis and method of acquiring ownership. Correlation of concepts and classification ……………………………………… ............

2. Initial methods of acquiring property rights……………………………………………………………..
2.1. Acquisition of ownership of a newly manufactured thing, fruits, products, income and unauthorized construction. Processing. ……………………………………………………………… ....
2.2. Taking possession as a method (basis) for acquiring property rights ………………………………………

3. Derivative methods of acquiring ownership……………………………………………………………..
3.1. Acquisition of ownership under the transaction ……………………………………………………………………………
3.2. Acquisition of property rights by way of inheritance. Succession of legal entities during reorganization ……………………………………………………………………

Conclusion……………………………………………………………………….

Bibliography……………………………………….

Applications…………………………………………….

Introduction

The right to property is the "cornerstone" of the entire current economic life of society and, as an integral part of real rights, is an integral element of the national civil legislation of any developed state. Especially in countries with market economies, where private property plays a leading role, where each participant in civil circulation, acquiring this or that thing (be it movable or immovable), must be sure of the irrevocable right of ownership to it. In a word, in a society in which property is its economic base and the core of property relations, the study of the issue of property rights becomes relevant. And in Russia in recent decades, there has been a process of return of interest in property rights and its institutions, and mainly in the institution of acquiring property rights.

It should be noted that the attitude of the legislator and scientists in our country to various ideas and theories, in particular to the concept of property rights, was made dependent on the socio-political situation and the regime. In the post-revolutionary period, the issue of acquiring property rights was considered only in the context of state economic entities, other participants in civil turnover fell out of the legislator's field of vision. Thus, methods of acquiring ownership rights that are not associated with the transfer of ownership rights under contracts and transactions (initial methods) have practically not received normative regulation. The reason for this state of affairs, of course, was the presumption of state ownership that was in force at that time, when the value and amount of property in the personal property of citizens was limited and all the scientific work of legal scholars of that time was reduced to only one thing - to give some acceptable explanation the position of the legislator. With the transition from a centralized economy to a market economy model, Russian society faced the need to establish new rules for regulating relations arising from the acquisition of property rights. A new Civil Code was adopted, and in Chapter 14, the main provisions on the acquisition of property rights were set out, which significantly, and in some cases, fundamentally differ from the Civil Code of the RSFSR in 1964. The new rules embodied both the foreign experience of legislative regulation of property relations, and all the accumulated domestic experience, including the experience of pre-revolutionary legislation and the achievements of Russian legal science. Meanwhile, the legal regulation of the institution of acquiring property rights in practice turned out to be insufficiently developed and effective (for example, the rules on the find and the rules on the discovery of treasures). It turned out that there are still many questions facing the legislator that require their solution. Legal science, also dealing with the regulation of individual methods of acquiring property rights, has not yet developed a unified approach to understanding the nature of acquiring property rights as a legal phenomenon. At the same time, it is precisely this theoretical understanding of the institution of acquiring property rights that is the basis that will then form a practical basis for improving the legislative framework and eliminating gaps in regulation.

Therefore, it seems that the selected research topic is very relevant today and needs both theoretical and practical study.

The purpose of this thesis research is the search for ways to improve the efficiency of legal regulation of relations arising from the acquisition of property rights, and based on the results obtained, specific proposals for improving the existing civil legislation. In accordance with this goal, the author formulated the following tasks research:

Develop a general concept of the acquisition of property rights, reveal its nature as a legal and social phenomenon

Provide a classification of methods and grounds for acquiring property rights and the main doctrinal approaches on the relationship between the concepts of methods and grounds

Consider the process of legal regulation in the field of acquiring property rights in historical development

Study of each method of acquiring property rights separately

Identification of gaps and inaccuracies in the legal regulation of the institution of the emergence of property rights and the development of proposals for its improvement.

Object thesis research are public relations in the field of legal regulation of the acquisition of property rights. Subject - norms of civil legislation governing the relationship for the acquisition of property rights.

The methodological basis of the research was formed by the following private scientific methods: formal logical, historical, comparative legal, technical and legal, and the method of system analysis (or complex research). The works of such domestic scientists as: Abova T.E., Aksenova E.V., Andreev V.K., Andreev Yu.N., Barshchevsky M.Yu., Boguslavsky M.M., Vladimirsky- Budanov M.F., Isaev I., Kamyshansky V.P., Karpychev M.V., Korshunov N.M., Kuzbagarov A.N., Meyer D.I., Novitsky I.B., Peretersky I.S. ., Pileev V. Pokrovsky I.A. Rusetsky A., Sannikova L.V., Svetlakov A.B., Sedakov S., Seliverstov T.V., Sergeev A.P., Tolstoy Yu.N., Tolcheev N.K., Khuzhin A.M., Eriashvili N. D. The work was carried out on the basis of the current civil legislation of the Russian Federation. The work used the jurisprudence of the Supreme Arbitration Court of the Russian Federation, the Federal Arbitration Court of the North-West District and the Kaliningrad Regional Court.

Scientific novelty This work consists in a comprehensive study of issues related to the acquisition of property rights and the development of proposals for solving problems in the legal regulation of these relations.

Practical significance - in the fact that the proposals given in it can be used to improve the current Russian legislation, in that part of it, where relations arising from the acquisition of property rights are regulated.

The thesis consists of three sections, introduction, conclusion, bibliography and appendices.

1. The emergence of property rights. General Provisions

1.1. Institute of the emergence of property rights in the history of civil law

For a complete and comprehensive study of the issue of the origin of property rights, it seems necessary to consider it in a historical retrospective: how this institution of law arose and how it changed at different historical stages of its development.

The most ancient source of law - the Laws of Manu in Ancient India (II century BC and II century AD), who clearly distinguished the border between property and possession and paid considerable attention to the protection of private property, indicates eight possible ways the emergence of property rights: inheritance, receiving in the form of a gift, finding, buying, conquering, usury, performing work and receiving alms. Ancient Indian law also knew such a method as acquisitive prescription, a characteristic feature of which was that only with legal confirmation from an owner a person turned into an owner.

A feature of the regulation of property rights in Ancient India was that the acquisition of a thing was allowed only directly from the owner, and therefore, proving one's ownership by referring to fair ownership was not allowed. Discovered stolen property, even from a bona fide purchaser, was returned to its rightful owner.

Roman law also had its own developed system of methods for acquiring property rights. The main provisions were set out in the Laws of the XII tables (451-450 BC), as well as in the Code of Justinian (529-534 AD).

The laws of the XII tables call such methods of acquiring property rights as: acquisition of ownership of fruits, specification (processing), occupation, treasure, acquisitive prescription and acquisition of property rights under a contract. In classical Roman law, three methods were used for the contractual acquisition of property: mancipation (mancipatio), "sham litigation" (in iure cessio) and transfer (traditio). Of these, only tradition (transmission) has survived in Justinian's law.

It is interesting that during the period of the Laws of the XII tables, the classification of methods was based not only on the sign of the initial or derivative emergence of property rights, but also on the historical sign of belonging to civil law or to the right of peoples. The transfer of ownership was allowed only between persons capable of alienating and acquiring property and was carried out through contracts and transactions in turnover between living (inter vivos), as well as on the basis of mortis causa transactions, i.e. by inheritance by will and waivers, as well as by inheritance by law.

Like the law of ancient India, Roman law also required the actual existence of ownership on the side of the alienator of the thing. Based on this requirement, stolen things - res furtivae - were declared objectively incapable of transferring ownership. This vice of things (vitium rei) was removed from them if they again passed through the hands of the owner, even without his knowledge.

A characteristic feature of Roman law was that the beginning of the complete informality of real estate transactions prevailed there; the transfer of ownership of land could be carried out by a simple transfer, devoid of any forms of its transfer.

In Russia, the institution of property was considered the object of complete domination of the owner. Therefore, he received the appropriate regulation in such sources as Russkaya Pravda and later in the Pskov and Novgorod court letters. Old Russian law was well aware of the method of acquiring property rights - transfer, it stood out among other methods, such as prescription of ownership, acquisition (capture), separation of fruits and inheritance.

The transfer of ownership was carried out on the basis of contracts and had to be accompanied by a certain rite and always publicly, symbols were also used. The transfer of ownership took place physically, i.e. the thing or the symbol replacing it was actually transmitted.

The institution of prescription appears in legislation very late, in the middle of the 15th century in the Pskov Judicial Charter; in other Slavic legislation, the institution of prescription is found in the 13th century. But practically the prescription of land ownership existed earlier. So, in the first acts of transactions, there are constant references to the antiquity of ownership as the basis of property rights. It should be noted that Old Russian law applied the rules on the prescription of ownership only in relation to land.

Land ownership could be acquired by taking possession of free land, the so-called. borrowing, while the boundaries of ownership were not subject to any strict definition (and "where the plow, the ax and the scythe went"). Later sources also name other ways of acquiring land: direct seizure of communal land, princely distribution of land to vigilantes, tiuns and churches, and, purchase.

In accordance with the articles of Russian Pravda, which regulated the rules of feudal agriculture, a feudal lord who owned a certain land had the right to the entire crop harvested from this land ("separation of fruits").

Old Russian law also knew inheritance ("statka") as a way of acquiring property rights. The peculiarity of inheritance according to the Russian Truth was that among the things passed to the heirs, only movable things are called, and nothing is said about the inheritance of lands. This fact is most likely due to the fact that the ownership of land was then in its infancy, and it was not possible for the legislator to develop a clear procedure for the transfer of land by inheritance.

In the Moscow state, such a method of acquiring property rights as a find and a treasure received legal confirmation (while the Old Russian law did not recognize a find as a way of acquiring rights). According to Moscow law, the found thing was either returned to the owner, or turned into the property of the state, and the finder received a reward, especially when "he used labor to save the thing from destruction." It was only in the Maritime Regulations of 1720 for the first time that it was established that in case of impossibility to determine the owner, the thing becomes the property of the finder. The treasure was equated with a find, but only as a thing, not lost by the owner, but having lost the owner. The treasure was not recognized as the property of either the finder or the owner of the land, but completely the property of the state.

In the Code of Laws of the Russian Empire, the norms of the institution of the emergence of property rights were enriched with new content, precise legal definitions of some methods and grounds for acquiring property rights (for example, acquisitive prescription) appeared. In addition, these norms received a very broad doctrinal interpretation by the best civilians of that time. In this sense, the works of Professor Dmitry Ivanovich Meyer (1819 - 1856), his course of lectures "Russian Civil Law", devoted to the analysis of the civil law of the Russian Empire of the 19th century, are especially noted.

DI. Meyer, declaring untenable the traditional division of methods of acquiring ownership of the original and derivatives, gave his own classification of the division of methods. So, he believed that the methods of acquiring property rights can be divided into methods that require the mediation of ownership, and methods that do not depend on ownership. In accordance with this, to the first classification Meyer D.I. attributed the transfer, prescription, war booty and find (treasure), to the second - use, increment and mixing.

The institution of the emergence of property rights in the Soviet period underwent some changes. In connection with the priority of state property over private, acquisitive prescription was abolished; ownership of a find, treasure, neglected things, incl. and a neglected animal arose only from the state. The finder of the treasure had the right in some cases only to a reward, and the finder of the thing only to reimbursement of expenses associated with the storage and delivery of the thing. The Civil Code of the RSFSR in 1964 called the transfer of things as a way of acquiring ownership and noted the ownership of fruits and income.

Thus, certain methods of acquiring property rights with the development of economic relations at each historical stage of development changed and supplemented. Roman law had a certain influence on the formation of this institution, and the works of the classics of Russian civil law had a certain impact on today's scientific thought.

1.2. Basis and method of acquiring ownership. Correlation of concepts and classification

The property right belongs to the number of subjective rights, therefore, like any other subjective right, it can arise only in the presence of a certain legal fact. And sometimes their combination (legal composition). These legal facts are called the grounds for the emergence of property rights. The grounds for the emergence of the right of ownership are called in the Civil Code of the Russian Federation and in Chapter 14 the most common of them are given.

It should be noted that in modern legal literature, along with the term "the basis for the emergence of property rights", some authors use the term "method of acquiring property rights", often using them as identical concepts, although the already well-known Russian civil scientist D.I. Meyer noted that "it is easy to confuse ways of acquiring property rights with ways of acquiring other rights." This issue is complex and debatable in the science of civil law, among scientists there is no consensus regarding the semantic content of these two categories and their relationship to each other. This state of affairs can be explained primarily by the fact that the Civil Code of the Russian Federation does not contain a legal definition of “method of acquiring property rights”, the Code uses only the term “grounds”, and the term “method of acquiring property rights” is a doctrinal concept. In addition, in legal science, a general system for constructing a unified and consistent theory of legal facts has not developed. However, it is especially important for a lawyer to carefully consider this issue, since its resolution is of practical importance.

In the legal literature, there are different approaches to this issue. As mentioned above, some scientists put an equal sign between “grounds” and “methods”, considering them as interchangeable categories denoting legal facts established by law that underlie the emergence of property rights. Sometimes, without directly asserting their identity, the authors use them without making a clear distinction between them. In other existing approaches, the authors endow each of these concepts with its own special legal meaning and content.

According to the point of view of the famous Russian legal scholar L.V. Sannikova, the acquisition of property rights should be understood as a set of legal and actual actions with which the law connects the emergence of property rights. In this sense, legal actions are called “grounds”, and actual actions are called “methods” of acquiring property rights. At the same time, it is emphasized that "grounds" by themselves are not enough for the property right to arise, it is necessary to perform certain actual actions - "methods". As an argument L.V. Sannikova gives an example with a purchase and sale agreement, which D.I. Meyer. In clause 2 of Art. 218 of the Civil Code of the Russian Federation, the sale and purchase agreement is indicated as the basis for acquiring ownership, however, in Art. 223 of the Civil Code of the Russian Federation, it is noted that the buyer's right of ownership arises only from the moment of the actual transfer of the thing. It follows that the conclusion of a sale and purchase agreement gives the buyer not the right of ownership of the thing, but only the right to demand its transfer. That is, in the event of a dispute between the parties to these contractual relations, the buyer will go to court with a claim not for the protection of property rights, but with a demand to compel the defendant to fulfill the obligations arising from the concluded contract of sale or with a claim to recover damage incurred by non-performance contract and the demand for restitution.

This point of view is very interesting, but it is not completely accurate. If, to recognize the legal significance of actual actions, without the commission of which the emergence of property rights is impossible, then the distinction between actual and legal actions is lost. And this, in turn, will lead to the fact that it will be difficult to determine the place and role of "methods" as actual actions in the system of legal facts. Especially when analyzing specific cases of the emergence of property rights. In one situation, the “method” as an actual action will be a special circumstance that has independent legal significance and exists next to the “basis”. For example, the basis for the emergence of the right of ownership in the order of inheritance will be a will or the Law, and in order to become the owner directly, it is necessary to perform a certain action - “accept the inheritance”. In another situation, the "method" will be one of the characteristics of the action, recognized by the "basis", that is, coincide with it. For example, "takeover" is named as the basis in the Civil Code of the Russian Federation in Art. 221, is at the same time a "method", which is manifested in a single action of a person as a legal act.

The following point of view on this issue is also noteworthy. According to this position, "methods" underlie the emergence of "bases", as if preceding the latter. The grounds are referred to here as title deeds. Title ownership is the ownership of a thing based on any right (legal basis, or title) arising from the corresponding legal fact. These titles are acquired in various ways specified in Chapter 14 of the Civil Code of the Russian Federation. It seems that such a position is quite possible, but hardly applicable as a general rule.

Thus, proceeding from the fact that it is objectively difficult to unambiguously resolve the issue of the relationship between the concept of “basis” and “method” of acquiring property rights, in the scientific literature the emphasis is on the category of “basis” as a legal concept used in the law, and the term “method "As a substitute for the term" base ".

For further analysis of specific methods of acquiring property rights, we need to refer to the classification of methods (grounds) for acquiring property rights.

In civil science, the grounds for the emergence of property rights have long been customary to subdivide into primary and derivative ones. It is understood that with derivative methods, the right of the new owner is based on the right of the previous owner, and with the original methods, the ownership right is either acquired for the first time, or the right of the new owner does not depend on the volume and nature of the rights of the previous one. Thus, with the initial methods, the ownership right is acquired in full, and with derivatives - in the amount that the previous owner had. Such a division of methods into initial and derivative ones is a consequence of doctrinal interpretation; this classification is not given in the law.

The distinction between the ways in which the right of ownership of derivatives and initial ones arises is of practical importance, which lies in the fact that in case of derivative methods of acquiring the right of ownership of a thing, in addition to the consent (will) of the owner, it is also necessary to take into account the possibility of the existence of the rights of other persons - non-owners to the same thing (for example, pledgee, lessee, subject of limited property rights), since these rights are usually not lost when the owner of the thing changes.

The delineation of the ways in which property rights arise is carried out on various grounds (criteria). At the same time, some authors give preference to the criterion of will, others - to the criterion of succession.

In accordance with the criterion of will, with the initial methods, the property right is acquired independently of the will of the previous owner (or for the first time), and with derivatives - at the will of the previous owner and with the consent of the acquirer.

It seems that the distinction between methods according to the criterion of will is not entirely successful. The law directly names cases when the right of ownership is transferred to a person in the absence of the will of the previous owner. So, the heir, who has the right to a compulsory share in the estate, acquires ownership of the property against the will of the testator, expressed in the will. Or, in the event of a levy on the property under the obligations of the owner (within the framework of Art. 237 of the Civil Code of the Russian Federation), the powers to the acquirer are transferred to the same extent as they existed for the first, because however, there is no reason for the termination of encumbrances.

The concept based on the succession criterion is the most common in the legal literature and is used b O Greater recognition, since it allows you to explain the preservation of encumbrances in the event of a change of ownership. According to this concept, the initial methods include methods based on which there is no legal succession, while derivatives are methods that rest on the right of succession.

In accordance with the above classification, the initial methods include:

36. Acquisition of the right of ownership to a newly manufactured thing for fruits, products, incomes, unauthorized construction (under certain conditions);

processing;

ownership of publicly available things;

acquisition of ownership of ownerless property, treasure, find, neglected animals, movable things from which the owner refused (abandoned things);

acquisitive prescription.

Derivative methods of acquiring ownership rights include the acquisition of this right:

37. on the basis of a contract or other transaction on the alienation of a thing;

by way of inheritance after the death of a citizen;

by way of succession upon reorganization of a legal entity.

Thus, ownership is acquired as a result of a person's legal and factual actions. Legal actions are called “grounds”, actual actions are called “ways”. Although the question of the relationship between these two categories in legal science is still controversial. The methods (grounds) for acquiring property rights are divided into initial and derivative ones, and this division is based on the criterion of succession.

Chapter 2. Initial Methods of Acquisition of Property Rights

2.1. Acquisition of ownership of a newly manufactured thing, fruits, products, income and unauthorized construction. Processing

The Civil Code of the Russian Federation calls the acquisition of ownership rights to a newly manufactured (or created) thing as one of the first ways to acquire ownership. The conditions for the emergence of ownership on this basis are: the manufacture or creation of a thing by a person for himself and necessarily in compliance with the provisions established by law and other legal acts. The terms "production" and "creation" used by the Civil Code of the Russian Federation are not identical, but close in meaning: the first involves the use of physical efforts, and the second - creative labor.

In clause 1 of Art. 218 of the Civil Code of the Russian Federation, the legislator emphasizes that the thing must be made (created) by a person. In accordance with Subsection 2 of the Civil Code of the Russian Federation, persons are citizens, organizations, the Russian Federation, constituent entities of the Russian Federation and municipalities. Therefore, both citizens and legal entities can participate in the manufacture or creation of a thing. Moreover, in all cases when a thing is created by legal entities, workers and employees acting on the basis of an employment contract (including a fixed-term employment contract) participate in the process of its manufacture, and a citizen creates a thing with his own personal labor.

In paragraph 1 of Art. 218 indicates that a thing is made (created) by a person for himself, however, it must be assumed that when making a thing not for himself, but for sale or a gift, the manufacturer also has a right of ownership.

It was said above that legal entities, on an equal basis with citizens, become the owners of the newly manufactured (created thing), however, some organizations do not acquire ownership of it. We are talking about state and municipal unitary enterprises created on the basis of the right of economic management or operational management. They are not endowed with the ability to have ownership of the property assigned to them (Article 113 of the Civil Code of the Russian Federation, Clause 1 of Article 2 of the Federal Law "On State and Municipal Unitary Enterprises"). They are able to have either the right of economic management or the right of operational management. Therefore, these organizations have the right of economic management or operational management for a newly manufactured (created) thing. And the right of ownership in such cases arises from the owner of the property that is in economic jurisdiction or in operational management. The rules on legal entities are applied to the Russian Federation, its constituent entities and municipalities, as to the subjects of civil legal relations, which are also capable of having the right of ownership, "unless otherwise follows from the law."

Legal entities and individuals are free to establish their rights and obligations (clause 2 of article 1 of the Civil Code of the Russian Federation), they exercise their civil rights at their discretion (clause 1 of article 9 of the Civil Code of the Russian Federation). Therefore, they are free to make and create new things, they have the right to make any new things that they deem necessary, and do it in any way that they deem appropriate. However, this right is not unlimited. Clause 1 of Art. 218 of the Civil Code of the Russian Federation establishes that the law and other legal acts are observed in the manufacture of things. There is a wide range of legal rules that influence the process of creating new things. Let's try to give only a general idea of ​​the direction in which these restrictions are going, since, due to their large number, it is impossible to give even an approximate list.

First, there are outright prohibitions on engaging in certain activities in the course of which new things are created. The Criminal Code establishes penalties for the manufacture of counterfeit money or securities (Article 186 of the Criminal Code of the Russian Federation), counterfeit credit or payment cards and other payment documents (Article 187 of the Criminal Code of the Russian Federation), illegal manufacture of weapons (Article 223 of the Criminal Code of the Russian Federation), illegal manufacture narcotic drugs or psychotropic substances (Article 228 of the Criminal Code of the Russian Federation), illegal cultivation of plants prohibited for cultivation (Article 231 of the Criminal Code of the Russian Federation), etc. In these cases, the manufactured items are confiscated and the right of ownership to them does not arise. Secondly, some types of activities can be carried out with a special permit (license) obtained in the manner prescribed by law. And, thirdly, there are rules that prescribe a certain order of activity that must be observed when creating new things of a given kind or this particular new thing. For example, commissioning is prohibited, which means the use of objects to create new things, in case of non-compliance or violation of environmental or urban planning legislation.

The Civil Code of the Russian Federation does not establish the moment at which the ownership right to a newly created movable thing arises (for newly created immovable things, the rule of Article 219 of the Civil Code of the Russian Federation applies). It should be thought that the right to property arises at the same moment when a thing becomes a separate object of the material world. It is then that it should be recognized as a new object of law, i.e. a thing that did not exist before. Of course, it is far from always possible to accurately determine the moment when this happens. In most cases, a new thing is created in the course of a process that takes a more or less long period of time. This, however, only complicates, but does not prevent, the application of the rule in question.

The next basis for the emergence of ownership is the acquisition of ownership of fruits, products and income. The list of fruits, products and income includes both natural fruits, i.e. created by the thing itself (offspring of animals, fruits of fruit trees), and the income that the thing brings while in civil circulation (rent, interest received on a loan, etc.), as well as products obtained as a result of the purposeful use of things in production activities.

These legal relationships by internal reference are governed by Art. 136 of the Civil Code of the Russian Federation. According to the named article, the right of ownership to the fruits, products and income received as a result of the exploitation of property belongs to the person who uses such property legally. This rule is a novelty of the Civil Code of the Russian Federation, the Civil Code of the RSFSR in 1964, when solving this issue, gave priority to the owner of the thing. The new rule, confirmed in paragraph 2 of paragraph 1 of Art. 218 of the Civil Code of the Russian Federation, discretionary, i.e. may be changed by law or by agreement of the parties. The legal owner can be the owner of the property, who acquires the right of ownership to the fruits, products and income received from his property. The legal owner can also be a tenant or another person who uses someone else's property on a legal basis and receives fruits, products and income from the property. Thus, the Civil Code in this case establishes the priority of the legal owner over the owner. Although this priority can be changed in favor of the owner by law or contract. An example of such a change is contained in Art. 299 of the Civil Code, here the priority is changed in favor of the state or local self-government bodies - the owners of the property assigned to unitary enterprises and institutions on the basis of the right of economic management and operational management. The legal owners of such property, for fruits, products and incomes, have only the right of economic management or operational management. It follows from this that the ownership of the profit received as a result of economic activity by a unitary enterprise or institution, as well as all property acquired from this profit for an enterprise or institution belongs to the state or municipal formation.

This issue can be resolved differently in the contract between the owner and the legal owner. For example, by virtue of Art. 606 GK fruits, products and income received by the lessee as a result of the use of the leased property belong to him on the right of ownership. However, the contract may specify that the rent is a share of the products, fruits and income received (clause 2 of article 614 of the Civil Code).

Therefore, the owner of the property, when transferring it for use to another person on a contractual basis, must bear in mind that if the contract does not provide for a condition for the owner to acquire fruits, products and income from the use of the property, then they, on the basis of Art. 136 of the Civil Code of the Russian Federation will become the property of the legal owner.

Let us now turn to such a method of acquiring ownership as the acquisition of ownership of an unauthorized building. This method is specified in Art. 222 of the Civil Code of the Russian Federation. In accordance with this article, an unauthorized building is a residential building, other structure, structure or other immovable property created in violation of the requirements established for the construction. These violations include: the use of a land plot not allotted for these purposes in the manner prescribed by law and other legal acts; lack of necessary building permits or significant violation of town planning and building codes and regulations. The list of objects of unauthorized construction, given in Art. 222 of the Civil Code of the Russian Federation is not exhaustive; such objects include, for example, a summer cottage, a garage, etc.

As a general rule, the person who carried out the unauthorized construction does not acquire ownership of it, does not have the right to make any transactions with respect to such an extension (sell, donate, pledge or lease, etc.). Such transactions will be considered null and void as committed in violation of the law on the basis of Art. 168 or 169 of the Civil Code of the Russian Federation, with the application of the consequences indicated there. The person guilty of unauthorized construction is obliged to eliminate the violation and carry out the demolition of the unauthorized construction at his own expense.

At the same time, clause 3. Art. 222 of the Civil Code of the Russian Federation allows for the recognition of ownership of an unauthorized building by a court, as well as in a different manner prescribed by law, which makes it possible to exclude unjustified demolition (dismantling) of a building that meets the established requirements. Recognition of ownership is possible for a person who owns life inherited possession, whose permanent (indefinite) use is the land plot where the construction was carried out, i.e. for the title landowner, who is obliged to reimburse the person who carried out the construction, the costs of its construction in the amount determined by the court. Thus, the potential owner of an unauthorized building must have a real right to the corresponding land plot. Such persons should include the tenant of the land plot. Moreover, the ownership right to an unauthorized building cannot be recognized for the specified person if the preservation of the building violates the rights and legally protected interests of other persons or poses a threat to the life and health of citizens.

Of course, the preservation of an unauthorized building is not possible if the land used under it does not correspond to the permitted use, and the competent authority is denied to change the purpose of the land. Anything else would be contrary to the requirements of Article 8 of the Land Code.

Also, the title owner is obliged to prove compliance with the established rules and regulations, without which the issue of ownership of an unauthorized structure cannot be resolved positively. Thus, the Oktyabrskiy District Court reasonably refused to satisfy the claims of P.I.D. to the Mayor's Office of Kaliningrad on the recognition of the ownership right to an unauthorized structure - a residential building, since, despite the recognition by the mayor's office of P.'s claims, it was established that the residential building was erected by the plaintiff on the territory of the sanitary protection zone of the Wagon Building Plant belonging to the enterprise 1-2 hazard classes. This decision was recognized by the higher court as correct, since the sanitary rules (clause 5.1 Sanitary protection zones and sanitary classification of enterprises, structures and other facilities), approved by the Resolution of the Chief Sanitary Doctor of the Russian Federation No. 74 of September 25, 2007 (similar rules were in effect earlier in 2001 and 2003) housing construction within the boundaries of such zones is prohibited.

It should be noted that the previous edition of this article pointed to another case of recognition of ownership of an unauthorized construction: for the person who carried out the construction on a land plot that does not belong to him, provided that this site will be provided to this person in accordance with the established procedure for the erected building. This rule became invalid on September 1, 2006 by the Federal Law of June 30, 2006 No. 93-FZ "On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Simplified Formalization of Citizens' Rights to Certain Real Estate Objects".

When creating real estate objects, state, public and private interests must be respected. The coordination of these interests is ensured by state authorities and local governments, which is achieved by developing, in accordance with building codes and rules, project documentation, which is coordinated with the architecture and urban planning authorities, state supervision and control authorities and approved in the prescribed manner, and issuance on the basis of this building permit documentation. Therefore, non-compliance with the requirements of environmental protection, building rules, environmental, sanitary and hygienic, fire-prevention, construction and other mandatory rules and regulations, the implementation of which is required for the construction and operation of a particular building, as well as the lack of documents confirming their compliance may be the basis for refusal to recognize the ownership of the unauthorized building. Although in the absence of such documentation, the refusal is not unconditional, the local government may allow the preservation of an unauthorized structure, if it recognizes that it was built in compliance with construction and other norms and rules. If such violations are identified, then if their elimination is possible and the developer eliminates all violations, the latter has the right to obtain a building permit.

In addition, the court itself is in the process of investigating the circumstances that have legal significance for the recognition of ownership of the unauthorized structure, having determined that the deviations from the approved project are not significant or gross and do not affect the rights and legitimate interests of the owners (users, owners) of adjacent real estate objects , may oblige the competent authorities to issue the developer with the necessary building permits.

The litigation for the consideration of claims for the recognition of ownership of unauthorized structures can take a very long time, in light of this, the question arises, who then is the owner of the unauthorized building from the moment of its actual construction to the completion of determining its legal fate? It appears that the developer owns the ownership of the materials and structures used in the construction of the building.

For the first time, the Civil Code of the Russian Federation provides for a special case of the emergence of ownership, when a person creates a new movable thing by processing (specification). This institution was known to Roman law (although it was not recognized by all Roman lawyers who were, as is commonly believed, under various influences of Greek philosophical trends), as well as Russian pre-revolutionary law. It can even be said that the regulation of relations related to processing, according to Russian pre-revolutionary law, coincides with modern law. In the Soviet period, on the other hand, processing was sometimes not even mentioned in special sources.

Recycling (or specification) is the process of using the original property to produce a new thing from it. The well-known lawyer V. Rovny argues that not a single new thing arises from scratch (by itself) and is always based on the use of one or another amount of the original property - both the main one (raw materials, materials, semi-finished products, etc.), so and auxiliary (energy consumption, information technology, etc.), that is, any creation of a new thing from the economic point of view (as a production and technological process) is the essence of the processing of some initial property.

The processing of a thing by a person can occur: from source materials belonging to him, source materials not belonging to him and by a contract method (on the basis of a work contract or other contract). Art. 220 of the Civil Code of the Russian Federation, which regulates processing relations, covers only those cases when a new thing is created by one person by processing materials owned by another person, and the created thing must be classified as movable. If a person carries out processing from his own materials, then this will be a special case of the owner exercising the right to dispose of his property, therefore, the ownership of a new thing created by processing, he acquires by virtue of paragraph 1 of Art. 218 of the Civil Code of the Russian Federation. It should be noted that the manufacture of a new movable thing by a person by processing materials that does not belong to him is a rare fact. And since the organization maintains accounting records of incoming materials, it is unlikely that the norm of Art. 220 of the Civil Code of the Russian Federation is applicable to legal entities. Therefore, it seems that only a citizen can be a manufacturer.

The main purpose of the legal structure of processing, taking into account its location (Chapter 14 of the Civil Code) and the content of the rules, is to establish the owner of a new thing, and in addition, to resolve related issues on fair settlement.

The general rule stated in para. 1 clause 1 of Art. 220 of the Civil Code of the Russian Federation, establishes that the owner of a new thing made by a person by processing material that does not belong to him becomes the owner of this material. And here it does not matter for whom the person carried out the processing: for himself, for the owner of the materials or for a third party. The orientation of the will of a person to achieve certain legal consequences, according to the general rule, has no legal significance, his actions are in the nature of a legal act, which in turn generates consequences regardless of the intention to create one or another legal result. The owner of the materials who acquired the ownership right to the thing made from them is obliged to reimburse the cost of processing to the person who carried it out.

However, the Law provides for cases in which the owner of the processed thing becomes the person who carried out the processing. This becomes possible if the cost of the work significantly exceeds the cost of the materials and the processor, acting in good faith, carried out the processing for himself. In this case, the processor is obliged to reimburse the owner of the materials for their cost.

Taking into account the above, it seems that the categories "good faith" and "significant excess of value" require their specification, however, in Art. 220 of the Civil Code, these concepts are not disclosed. Obviously, the application of analogy by law is required here. The category of "good faith" is disclosed in clause 1 of Art. 302 of the Civil Code of the Russian Federation, according to which a person who did not know or could not know about the illegality of his actions is recognized as being in good faith. That is, applicable to our situation, the person did not know or could not know that using the materials of the owner violates his rights. As for the category "significant excess of value", in view of the absence of at least some concretization of this concept in civil legislation, it seems that the customs of business turnover are applicable here (Article 5 of the Civil Code of the Russian Federation).

Above, cases were considered when between the owner of the materials and the person who processed them into a new thing, relations arise to compensate for the cost of work during processing or the cost of unlawfully used materials. The legislator also points out those cases when the owner of the materials loses them as a result of the unfair actions of the person who carried out the processing, then the owner of the material has the right to demand, in addition to transferring the new thing to his ownership, compensation for the losses caused to him.

Thus, the right of ownership may arise for a newly manufactured thing, fruits, products, income, in the case of processing of materials that do not belong to a person and, under certain conditions, for an unauthorized construction. A common characteristic feature for the above methods is that they are acquired as a result of economic or labor activities of citizens and organizations.

2.2. Taking possession as a method (basis) for acquiring property rights

The initial methods of acquiring property rights include seizure. Taking possession is understood as the entry of a person into actual possession of a thing, the exercise of economic domination over it. The methods (grounds) for acquiring property rights by taking possession of a thing include: collection of publicly available things (Article 221 of the Civil Code of the Russian Federation); a court decision on the recognition of ownership of unattended immovable property (clause 3 of article 225 of the Civil Code of the Russian Federation); movable things, from which the owner refused (Article 226 of the Civil Code of the Russian Federation); find (Articles 227-229 of the Civil Code of the Russian Federation); stray animals (Articles 230 - 232 of the Civil Code of the Russian Federation); treasure (article 233 of the Civil Code); acquisitive prescription.

As a general rule, taking possession is possible only in relation to ownerless things. An exception is the transfer of ownership of things that are publicly available for collection.

For the first time, Russian legislation directly allowed the acquisition of publicly available things for collection. These include: picking berries, mushrooms, flowers, fishing, hunting animals, mining other generally available things (clay, sand and other common minerals). The basis for the emergence of ownership of these objects is the actual acquisition by a person of these objects by performing actions that do not contradict the legislation, the general permission of the owner or in accordance with local customs. These conditions are established by Art. 221 of the Civil Code of the Russian Federation, which are specified by special legislation.

For example, hunting regulations define in detail who has the right to hunt, where and at what time of the year it is allowed to hunt and what animals and birds are allowed, to whom hunting weapons are sold, how hunting products can be used, etc. There are similar rules for catching fish. The collection and procurement by citizens of wild plants and mushrooms, which are included in the Red Book of the Russian Federation and in the list of drug-containing plants and natural drug-containing raw materials, are prohibited.

The Law of the Russian Federation "On Subsoil" establishes that the legal owners of land plots have the right, free of charge, at their discretion, without the use of blasting operations, to extract common minerals directly for their needs (Articles 19 and 40). The use of other natural resources is regulated by the relevant regulations.

This method of acquiring property rights is attributed to the original, despite the presence of the owner and his expressed will to alienate the property, because such a will is of a general nature, it is not addressed to specific persons, and therefore in this situation there is no question of succession (representing the main criterion for distinguishing between initial and derivative methods of acquiring property rights).

Let us now turn to the consideration of those methods (grounds) for acquiring property rights that arise in relation to ownerless things.

First of all, it is necessary to determine the legal structure of the ownerless thing. According to paragraph 1 of Art. 225 of the Civil Code of the Russian Federation, a thing that does not have an owner, the owner of which is unknown and the right to which the owner refused is recognized as ownerless.

The procedure for the emergence of the right of ownership to movable and immovable ownerless things is not the same.

In relation to immovable ownerless things, the rule of clause 3 of Art. 225 of the Civil Code of the Russian Federation, according to which ownerless immovable things are registered by the competent authority at the request of the local government body in whose territory they are located. After a year from the date of registration of the ownerless real estate, the competent municipal body (committee for the management of municipal property) may apply to the court with a claim for the recognition of municipal ownership of such a thing. This claim will not be satisfied by the court if it turns out that the disputed property has an actual owner who properly uses it or the owner is found out. In this case, immovable property may become the property of such an actual owner according to the rules of acquisitive prescription, or may be re-taken into possession, use and disposal by the owner who has dismissed it.

Ownerless movable things are acquired by their actual owners in the presence of conditions that are directly established by law for specific situations (abandoned things, finds, neglected animals, treasure) or in accordance with the rules of acquisitive prescription.

The procedure for acquiring ownership of ownerless movable things abandoned by the owner or otherwise abandoned by the owner in order to relinquish ownership of them (abandoned things) depends on their value. The law distinguishes: 1) things, the value of which does not exceed the amount corresponding to five times the monthly minimum wage and other abandoned things in the form of waste; 2) more expensive items. Things belonging to the first group can be acquired by the owner of a land plot, reservoir or other object where these things are located, having dulled them to use or having performed other actions that indicate the conversion of the thing into ownership. To acquire ownership of other movable things, you must go to court. If by a court decision they are recognized as ownerless, they will become the property of the person who owns them.

Other rules apply to ownerless movable things with the status of a find. A find is understood as a thing that the owner or another owner has lost, and another person has found. It should be noted that not always the found thing will be considered ownerless. In some situations, the finder knows the owner of the thing or any other person known to him who has the right to receive this thing (then the finder has the obligation to notify such persons about the find and return it to them). In all other cases, the find is recognized as an ownerless thing and under certain conditions specified in the law, the right of ownership may arise on it. Let's consider these conditions.

The finder acquires the right of ownership to the found thing upon the expiration of six months from the date of the statement about the find to the police or to the local government body, if within the specified six months the person entitled to receive the found thing is not identified or does not declare his right to the thing to the finder a person either to the police or to a local government body. It is the direct responsibility of the finder, if he does not know the person who has the right to demand the return of the found thing or his place of stay, to declare a find to the police or to a local government body. The finder may refuse to acquire the found thing into ownership, in which case this thing becomes the property of the municipality.

The legislator establishes certain consequences for the finder, in all cases of the return of the find. First, the finder has the right to reimbursement of the necessary expenses incurred by him in connection with the storage, delivery or sale of the thing and other costs from the person entitled to receive it or from the local government body that owns the thing. Second, the finder is entitled to a reward in the amount of up to twenty percent of the value of the thing from the person entitled to receive it. In cases where the thing found was of value only to the person entitled to receive it, the amount of this remuneration can be determined by agreement. If the person who has lost the thing has publicly announced the payment of a monetary reward for the return of the find or the communication of information about it, then the rules of Articles 1055, 1056 of the Civil Code on the public promise of a reward apply. The right to a reward does not arise if the finder of the thing did not declare the find or tried to conceal it.

Let us note a few more provisions concerning the legal regulation of the find. First: a thing found in a room or in transport is subject to delivery to a person representing the owner of this room or means of transport. The person to whom the find is handed over acquires the rights and bears the obligations of the person who found the thing. Second: the person who has found the thing can keep it with him or hand over the thing for storage to the police, local self-government body or to a person indicated by them. At the same time, the legislator emphasizes that the finder can sell the thing if it is perishable or if the costs of storing it are not commensurately large in comparison with its value with the receipt of written evidence of the amount of proceeds. The money received from the sale of the found thing is subject to return to the person entitled to receive it. And third: for the loss or damage to the thing, the finder is liable within the value of the thing. Responsibility arises only in cases of intent or gross negligence.

Taking into account the above, I would like to note that the legislator failed to achieve the goal that is usually pursued when regulating relations on a find. This means the creation of appropriate legal incentives so that the finder would have a desire to declare the find, and not hide it. For example, the analysis of the norms of para. 2 clause 1 of Art. 227 of the Civil Code of the Russian Federation, which states that a thing found in a room or on a transport is subject to surrender to a person representing the owner of this premises or means of transport, allows us to come to the following conclusion: the person who found the thing under such conditions will hide the fact of its finding as this the norm does not provide for any remuneration to the finder, since all the duties and rights of the finder are transferred to the person to whom the find is transferred. In addition, the current Civil Code of the Russian Federation did not provide for specific obligations for the owners of vehicles or premises, in particular, those related to public notification of the find, holding public auctions, etc. Also, in the norms of the Russian civil law on the find, there are no special instructions, concerning employees who have found something within the walls of the institution or organization in which they work. Russian courts, faced with such a dispute, would find themselves in a difficult situation, in particular, solving the problem of reward for a find. There are also no rules regarding the protection of the interests of the finder in disputes with all third parties. The legislator does not establish any special property rights for the subject of the finding.

The rules for finding are adjoined by the rules for acquiring ownership of stray animals. These provisions establish a regime for stray or free-range livestock, as well as other stray domestic animals. These rules do not apply to stray wild animals, even if they are kept at home. A neglected animal is an animal that was not in the household of any other person at the time of detention, and an animal that was in someone's household at the time of arrest is considered a neglected animal.

The obligations of the person who detained the neglected animal (close-by) largely coincide with the obligations of the person who found the lost thing. So, a person who has detained a neglected animal is obliged to return it to the owner, if the latter is known. If the owner of the animals or his place of stay is not known, then this person is obliged to report the discovered animals to the police or to the local government body no later than three days from the moment of detention. At the time of the search for the owner, the person who has detained the neglected animal leaves it with him or can transfer it for maintenance or use to another person who has more suitable conditions for keeping animals. Moreover, both of these persons are obliged to properly maintain animals and are responsible for their death and damage, if the guilt is proven. The liability is restrictive, that is, within the limits of the value of the animals.

The right of ownership to detained neglected animals is acquired by a person with whom the animals were kept and used, if within six months from the date of the application for the detention of neglected animals, their owner was not found or himself did not declare his right to them. A person can refuse to acquire these animals as property. With such a refusal, as in the case of the find, the animals become municipal property.

In view of the fact that the legislator considers animals as special objects of law requiring care, care and humane treatment, he has established some exceptions to the general rule for the acquisition of neglected animals by the person who detained them. Such exceptions include cases when the previous owner of animals can re-acquire ownership of them, in the presence of circumstances indicating that these animals remain attached to him or about cruel or other improper treatment of them by the new owner. The conditions under which the return of animals to the previous owner takes place are determined by agreement between the previous and new owner. If such an agreement is not reached, the dispute will be resolved in court.

In the event that neglected animals are returned to the owner, the person who detained them and the person with whom they were kept and used are entitled to reimbursement of the costs incurred by them for the maintenance of animals. All benefits derived from the use of animals are included in the cost. These persons are also entitled to remuneration. The amount of the remuneration is determined by the provisions on the find.

Art. 233 of the Civil Code of the Russian Federation establishes the basis for the emergence of ownership of the treasure. Compared to the previous legislation (Civil Code of the RSFSR of 1964), the new Civil Code of the Russian Federation provides for significant changes in the legal regulation of these legal relations. Although the definition of the treasure remains the same. According to Article 233, a treasure is money or valuable objects buried in the ground or otherwise hidden, the owner of which cannot be established or, by virtue of law, has lost the right to them.

The terms “closed” and “hidden” mean that valuables cannot be found by simply examining a piece of land or other property. At one time these things were supposed to be the object of volitional purposeful activity to conceal them. Their detection is always random. Even in cases where the treasure hunter has information about their location, it is not known in advance and reliably whether they are there, there will be an element of randomness. Therefore, objects found on the surface that fall under the concept of treasure in their physical characteristics will be considered a find. And accordingly, the acquisition of ownership of them will be governed by the provisions on the find.

It seems that the treasure and the property in which it is found should be different things and represent independent objects of civil rights, not united by any common purpose such as the main thing and belonging. The discovery of an older image on an icon, hidden by a later and different letter, or a hidden piece of jewelry in another piece of jewelry will not be considered a treasure.

As an essential condition for the recognition of property as a treasure, the legislator establishes that buried or hidden objects can be money or valuable objects. At the same time, the law does not contain a list of things covered by the concept of "value". Undoubtedly, the values ​​include money, currency and currency values, precious metals and stones, objects of art, as well as those items whose market value is really great and significantly exceeds their value, which would be determined based on their utilitarian, consumer purpose. Also in paragraph 2 of Art. 233 of the Civil Code of the Russian Federation states that things related to monuments of history or culture can be considered treasure.

It should be noted that the legislator has not resolved the issue of whether real estate can be recognized as a treasure. Although, undoubtedly, objects of ancient architecture discovered as a result of excavations, inseparable from the earth without causing significant damage to them, can be of extremely great value from the point of view of history and culture. The absence of instructions to the contrary in the Civil Code of the Russian Federation makes it possible to apply the rules on treasure to discovered immovable valuables.

According to the general condition, the treasure is subject to transfer to the owner of the property, within the limits or composition of which the treasure was hidden and discovered. If the treasure was discovered not by the owner, then a common share ownership arises between the owner of the land plot or other property where the treasure was hidden and the person who discovered it. Shares are established by agreement of the parties, if no such agreement has been reached between them, then the shares are recognized as equal. Common property does not arise if excavation or search for valuables was carried out without the consent of the owner of the property in which the treasure was located. In this case, only the owner of the property has the right to the treasure, and not the person who discovered the treasure. It should be emphasized that the Civil Code authorizes the consent of the owner. Therefore, the subjects of real rights cannot give such permission (for example, the subject of the right of life-long inheritable possession, permanent (indefinite) use of a land plot).

The law contains exceptions to the general rule. In accordance with paragraph 2 of Art. 233 of the Civil Code of the Russian Federation, a treasure containing things related to monuments of history or culture is subject to transfer to state ownership. In this case, the owner of the land plot or other property where the treasure was hidden and the person who found the treasure (if the excavations were carried out with the consent of the owner) have the right to receive remuneration. The amount of the reward is 50% of the value of the treasure. The remuneration is distributed between these persons in accordance with the agreement concluded between them, and in the absence of such, in accordance with the law, i.e. in equal parts. Valuation of the treasure will be carried out on the basis and in accordance with the "Instruction on the procedure for accounting, valuation and sale of confiscated, ownerless property, property transferred by inheritance to the state, and treasures"

Like the Civil Code of the RSFSR in 1964, the Civil Code of the Russian Federation does not apply all the rules described above in case the excavation and search aimed at finding the treasure were part of the work or official duties of the person who discovered it. In such cases, the activities of these persons will be regulated by the Federal Law of June 25, 2002 "On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation" FZ-73. According to paragraph 9 of Art. 45 of this Federal Law, individuals and legal entities who carried out archaeological field work, within 3 years from the date of work, are obliged to transfer all discovered cultural values ​​for permanent storage to the state part of the Museum Fund of the Russian Federation. This obligation also extends to the treasures discovered by them, including those related to monuments of history and culture.

In conclusion, I would like to focus on the gaps that exist in Russian civil legislation in terms of regulating relations arising from the discovery of treasures.

First: the legislator, pointing out the permission of the owner to excavate or search for valuables, as an essential condition under which a person has the right to share ownership of the treasure, does not determine the procedure for issuing such a permit.

Second: the unjustifiably small established amount of remuneration due to the person who discovered the monuments of history and culture, and the owner of the land plot on which they were found. A reward in the amount of 50% of the value of the treasure will not at all stimulate persons who have discovered a treasure in which things related to historical or cultural monuments are located, to declare their discovery and transfer these values ​​to the state. Russian pre-revolutionary law can serve as an example of fairer compensation for the transfer of historical values ​​into state ownership. In the X Code of Laws of the Russian Empire in Art. 539.1 Part 1 stated that "the persons who presented the found old coins or other antiquities to the authorities subject to them" received "the entire real price of gold, silver or other substance from which they are made."

The right of ownership to ownerless property or to property owned by a certain person may be acquired by another person who is not its owner due to acquisitive prescription. The rules on acquisitive prescription are applied in the event that the rules on the acquisition of ownership of things that the owner refused, about a find and neglected animals or treasure cannot be applied to the legal relationship that has arisen.

The institution of acquiring property rights by prescription has long roots. It was well known to ancient law (private Roman, ancient Indian, including Old Russian); pre-revolutionary Russian law had a significant experience of regulation. The main reason for the existence of the institution of acquisitive prescription in both ancient and modern law is the ordering and stabilization of civil circulation. Simply put, the need to maximize the involvement of capable types of property in turnover, which does not allow even a short-term downtime.

In the current Civil Code of the Russian Federation, article 234 is devoted to acquisitive prescription, according to which: "a person - a citizen or a legal entity - who is not the owner of the property, but in good faith, openly and continuously owning as his own for a certain period, acquires the right to this property."

Based on the above definition, we will be able to single out the circle of subjects that may be participants in these legal relations. Only a citizen or a legal entity can acquire the right of ownership by limitation of ownership. And although in paragraph 2 of Art. 124 of the Civil Code of the Russian Federation states that the rules governing the participation of legal entities in civil relations are applied to the Russian Federation, constituent entities of the Russian Federation or municipalities, in this case the law does not provide them with the opportunity to acquire ownership on such a basis as acquisitive prescription. Therefore, by virtue of Art. 234 of the Civil Code of the Russian Federation, only the right of private property can arise.

Let us now consider the circumstances with which the law connects the emergence of property rights by acquisitive prescription.

The first circumstance is the good faith of ownership. It causes the greatest difficulties in interpretation, since in st. 234 of the Civil Code of the Russian Federation, the disclosure of this concept does not occur. But, based on the interpretation of Art. 302 of the Civil Code of the Russian Federation, good faith means that the owner is convinced of the legitimacy of his ownership, considers the basis on which the property was received sufficient to have the right of ownership to it. Such conviction should take place during the entire period of ownership, and not only at the time the property comes into the possession of the person. The course of the statute of limitations terminates from the moment when the person becomes aware that his possession of the property is unlawful. Good faith is required not only from the original owner, but also from his successor. If the latter learns that the property belongs to another person, then one of the necessary conditions for the application of acquisitive prescription disappears, except for the case when the legal successor became aware of this fact after the expiration of the prescription period. When taking possession of property as a result of illegal actions, there is no good faith of the owner, which makes it impossible to acquire property rights by limitation.

The next circumstance (condition) is the openness of ownership. The openness of ownership is inextricably linked with good faith and means that a person does not hide the fact that the property is in his possession, does not prevent unauthorized persons from accessing it, and obtaining information about this property. This does not mean that the owner should take any active actions that demonstrate ownership to others, but at the same time, he should not actively hide the property from prying eyes.

The third condition is continuity of ownership. Continuity assumes that during the entire statute of limitations the property has not been removed from the possession of its owner. If the property was disposed of for a certain period of time from the possession of the person, including against his will, then the statute of limitations runs from the beginning and the time that has elapsed by the time of the break is not counted. The course of the limitation period is also violated by the presentation by the owner or other legal owner of a claim for the reclamation of his property.

At the same time, the transfer of property by way of succession to another person (for example, to an heir) during the period of acquisitive prescription does not interrupt it. The legal successor, referring to the prescription of possession, can add to the time of his possession all the time during which this property was owned by his legal predecessor.

Also, it will not be considered a break in possession if the person went on a business trip, vacation and left the thing at home. Continuity in the legal sense does not mean every second possession of a thing or constant physical contact with it.

The fourth and important condition for the use of acquisitive prescription is the ownership of property as one's own. In this case, the property that is in the possession of a citizen or a legal entity must be objectively alien to him. Nevertheless, the behavior of the owner should be typical of the owner, who considers himself competent to determine the legal fate of the property, to dispose of it at his own discretion. It should be noted that the mere fact of using the property cannot entail the use of acquisitive prescription. This can be illustrated by the following example.

The public organization applied to the arbitration court with a claim against the City Property Management Committee (hereinafter referred to as the committee) for the recognition of its ownership of the building, which had arisen by virtue of acquisitive prescription. In support of the claim, the public organization indicated that from the date of the creation of the disputed real estate object, it owns it as its own property; the object is on the balance sheet of a public organization, has not been removed from its possession and has not been transferred to anyone; the owner did not conclude agreements with the organization for the lease or free use of the building it occupied. In the opinion of the public organization, since it conscientiously, openly and continuously for fifteen years owned the named property as its own, on the basis of paragraph 1 of Article 234 of the Civil Code of the Russian Federation, it acquired the right of ownership to the disputed real estate object due to acquisitive prescription. By the decision of the court of first instance, the claim was dismissed. The court proceeded from the fact that the public organization had owned the disputed real estate for fifteen years not as its own, but as state property, which it knew about. With the consent of the owner, she only used this real estate free of charge in her statutory activities. The courts of appeal and cassation agreed with the conclusions of the first instance and left the decision unchanged. This decision was recognized as justified by the Presidium of the Supreme Arbitration Court of the Russian Federation.

Ownership of property on a legal basis (rent, lease, storage, free use, etc.) or on any property right (permanent use of a land plot, life-long inherited ownership, the right of economic management or operational management) does not entail the owner of the right ownership of this property, regardless of the period of ownership because such owner is aware of the derivative and restrictive nature of his right to property.

Ownership rights under acquisitive prescription can arise only after the expiry of the prescription period. Its limits are established by clause 1 of Art. 234 of the Civil Code of the Russian Federation: for movable property - five years, for immovable property - fifteen years. In this case, the course of the period of acquisitive prescription in relation to things held by a person from whose possession they could be claimed in accordance with Art. 301 and 305 of the Civil Code of the Russian Federation, begins no earlier than the expiration of the limitation period for the relevant requirements (clause 4 of Article 234 of the Civil Code of the Russian Federation).

The rules of the Civil Code on acquisitive prescription are retroactive, they also apply to those cases when ownership of property began before January 1, 1995, that is, before the entry into force of part of the first Civil Code of the Russian Federation (Article 11 of the Federal Law of November 30, 1994 No. 52- Federal Law "On the introduction of part of the first Civil Code of the Russian Federation").

For the emergence of the right of ownership by acquisitive prescription for movable property, it is sufficient to comply with the above conditions of ownership of this property and the expiration of the limitation period of 5 years. However, this is not enough for the emergence of ownership of immovable property. In accordance with Part 2, Clause 1, Art. 234 of the Civil Code of the Russian Federation, the ownership right on this basis arises for a person only from the moment of state registration of the right. In Art. 6 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with It" defines: "The right of ownership of real estate acquired by virtue of acquisitive prescription is subject to state registration after the fact of acquisitive prescription is established in the manner prescribed by law." state registration will be a court decision that has entered into legal force, which confirms the good faith, openness and continuity of the person's possession of this property as his own within the period established by law.

The issue of recognizing property rights by virtue of acquisitive prescription will be considered in a special procedure by establishing the fact of ownership and use of real estate (clause 6, part 2, article 264 of the Code of Civil Procedure of the Russian Federation). If there is a dispute about the law, the case will be considered in the action. It appears that this will be a claim for recognition of property rights by virtue of acquisitive prescription.

Thus, the Shenkurskiy District Consumer Society of the Arkhangelsk Region filed a complaint in a special proceeding to establish the legal fact of owning immovable property as their own, referring to the fact that the disputed building was built by him at his own expense. The first-instance court, having established that the applicant had in good faith, openly and uninterruptedly owned the disputed building as his own for fifteen years, recognized the fact of acquisitive prescription. The cassation court overturned this decision, and left the application without consideration in accordance with Part 3 of Art. 148 of the Arbitration Procedure Code of the Russian Federation, referring to the fact that, in fact, Shenkurskiy raypo went to court with an application for the recognition of ownership, drawn up as a statement on the establishment of a legal fact. That is, the Shenkurskiy raypo filed an application containing not a requirement to establish a legal fact, but a requirement to recognize the right, which is not subject to consideration in a special proceeding. As follows from clause 5 of the Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 17, 2004 N 76, such a claim can only be made by filing a claim and should be considered in the course of action.

It should also be noted that prior to acquiring ownership of property on the basis under consideration, a person who owns this property as his own has the right to protect his ownership against third parties who are not the owners of the property and do not have other rights to property on the grounds provided for by law or agreement.

Thus, the ways in which the property comes into the ownership of a person by means of taking possession were considered. We have determined that the acquisition is carried out in relation to ownerless things (with the exception of the transfer of ownership of things that are generally available for collection). In this regard, it seems important to have a fairly clear legal regulation of this civil legal institution. The task of which is to prevent the loss of ownerless things from civil circulation, otherwise, in the era of domination of market relations, this would have a negative impact on socio-economic relations. Nevertheless, we revealed the impracticality and ineffectiveness of the rules on find and treasure. At the end of this thesis, recommendations will be given on amending the current Civil Code of the Russian Federation in relation to the above norms.

Chapter 3. Derivative methods of acquiring ownership

3.1 Acquisition of title by transaction

According to paragraph 2 of Art. 218 of the Civil Code of the Russian Federation, the ownership right that the owner has can be acquired by another person on the basis of a sale and purchase agreement, exchange, donation or other transaction on the alienation of property.

Since the will of the previous owner is taken into account in derivative methods, which include transactions, the grounds for acquiring ownership rights from some persons are at the same time grounds for terminating the same right from other persons. In the light of the foregoing, it is necessary to determine the moment when the new owner acquires the right of ownership, and the previous owner terminates it. Indeed, the correct solution to many other issues depends on the correct definition of this moment. In particular, with the transition to the acquirer of the right of ownership, the burden of maintaining the property, the risk of accidental loss and natural loss of the thing is imposed on him, the right to foreclose on the owner's debts to creditors arises, and more.

In accordance with Art. 223 of the Civil Code of the Russian Federation, the moment when the acquirer's right of ownership arises under the contract is the moment of transfer of the alienated thing. This rule is optional and can be changed by agreement between the parties.

To transfer a thing, you need:

1) the person transferring ownership rights;

2) the person acquiring this right;

3) the legal basis (justus titulus) on which the transfer constitutes the transfer of ownership;

4) the act of transfer itself, consisting in the transfer of ownership from one person to another.

Thus, a transfer is an act by which a thing from the possession of one person passes into the possession of another, acquiring the right of ownership over it. Such a meaning of the transfer of things as a way in which the right of ownership arises did not arise immediately, but in the course of historical development. The transfer was known to Roman and Old Russian law.

As a way of transferring property rights, tradition (transfer) was adopted by the law of peoples (ius gentium) as an integral part of Roman law. In classical Roman law, the application of the tradition led to the acquisition of praetorian bonitar property (not Quirite). It is possible that in ancient times the tradition required an additional one-year limitation period for the transfer of property rights. In the post-classical period, tradition supplanted the old formal methods and became the only way to transfer property.

Originally, in Roman law, tradition was a real, solemn bargain. The alienator (tradens), in fact and publicly in the presence of witnesses, made the transfer of the thing to the acquirer. In this case, tradition acted as an abstract transaction that creates a real effect regardless of the legal basis.

The introduction of real estate into circulation, as well as those methods of transferring ownership, which were limited to an overview of the transferred site, the exchange of statements by the parties and the transfer of plans, gradually smoothed out the real nature of the transfer as an act. In Justinian's law, the act of transfer was supplemented by the delivery of the document.

The system of tradition was also widely known to ancient Russian law. The symbolic actions that accompanied the transfer of the thing emphasized the belonging of this act to tradition.

Over time, the tradition has almost lost its former signs of a ritual (ceremony), they have now begun to be supplanted by records in land books, statements before the court, etc.

In its modern form, tradition (transfer) is a necessary factual action, which is preceded by an agreement (contract) on the transfer of a thing.

The presence of a preliminary agreement, as mentioned above, is an important element in the legal structure with which the emergence of property rights is associated. For example, a car owner hands over the keys to his car to a valet (which is also a symbolic transfer of the car) so that he can park and then drive the car. It is quite clear that the valet's ownership does not arise.

It should be emphasized that the acquirer under the transaction, having not received possession of the thing - the subject of the transaction, does not acquire ownership of it, but only the title of the buyer, a compulsory right that allows him to declare claims against the seller. Also, the buyer who has not received possession does not become the owner from the contract (for example, purchase and sale), not only if he does not receive possession, but also if he takes possession of the thing other than receiving it personally from the seller. Therefore, the forcible or other receipt of a thing from third parties against the will of the owner, even if this thing became the subject of an alienation agreement, but was not transferred, cannot lead to the emergence of ownership of the buyer, who in this case becomes an unscrupulous owner.

What is recognized as the transfer of a thing? The legislator specifically discloses this concept in Art. 224 of the Civil Code of the Russian Federation. The transfer of a thing is the actual delivery of the thing to the acquirer or handing it over to the carrier or to the organization of communication for sending to the acquirer things alienated without the obligation of delivery. If the contract stipulates a condition for the delivery of the goods, then it is considered fulfilled from the moment the thing is handed over to the purchaser (clause 2 of article 499 of the Civil Code of the Russian Federation). The thing is considered to be handed over from the moment of its actual receipt into the possession of the acquirer or the person indicated by him (for example, delivery to his warehouse). The actual finding of the thing in the possession of the acquirer at the time of the conclusion of the agreement on its alienation (for example, when buying out the leased property) is equivalent to its transfer. In other words, in this case, the conclusion of an agreement on the alienation of a thing is recognized by law and its simultaneous actual transfer. The delivery of a bill of lading or other document of title (warehouse receipt, mortgage) may also be considered a transfer in accordance with clause 3 of Art. 224 of the Civil Code of the Russian Federation.

The transfer can also be carried out by performing other actions: symbolic transfer of keys, implicit actions (for example, when selling goods using machines).

Another rule applies to real estate. The emergence of the right of ownership to it is associated by the legislator with the moment of state registration of the transfer of rights to this immovable thing. This rule is mandatory and cannot be changed by agreement of the parties.

We also note that the provisions of Articles 223 and 224 of the Civil Code are applied when transferring not only property rights, but also when transferring the rights of economic management and operational management.

Thus, in order to acquire ownership on such a basis as the completion of a transaction, in addition to concluding the agreement itself between the alienator and the acquirer, it is necessary to perform an actual action - the transfer of the alienated thing. And for the emergence of ownership of immovable property, state registration of rights is required.

3.2. Acquisition of property rights by way of inheritance. Succession of legal entities upon reorganization

The acquisition of ownership of property by inheritance in Chapter 14 of the Civil Code of the Russian Federation is called one of the grounds for the emergence of ownership. Art. 35 of the Constitution of the Russian Federation establishes that the right of inheritance is guaranteed in the Russian Federation. The constitutional content of the concept of a guarantee means the legal protection of the institutions and principles enshrined in the constitution.

The rules on inheritance are enshrined in Part III of the Civil Code of the Russian Federation, which was adopted by the State Duma on November 1, 2001 and entered into force on March 1, 2002. With the introduction of part three of the Civil Code of the Russian Federation, the inheritance law of Russia received a new content: the boundaries of freedom of will and the circle of heirs under the law were significantly expanded (which led to a decrease in the number of cases of transfer of inherited property to the state). Let's consider the main provisions of inheritance law in Russia.

In the Russian Federation, two types of inheritance are recognized: by will and by law. Inheritance by will in the Civil Code of the Russian Federation is in the first place, which is explained not by the editorial peculiarity of the Code, but by the expression of the principled position of the legislator. Which is based on the constitutional recognition of human and civil rights and freedoms as the highest value, and at the same time the priority of the individual over the state.

In paragraph 1 of Art. 1118 of the Civil Code of the Russian Federation states that it is possible to dispose of property in case of death only by making a will. A will is a unilateral transaction that is made personally by a citizen and cannot be made by a representative. A will can be made by a citizen who, at the time of its execution, has full legal capacity. It is not allowed to make a will by persons under the age of eighteen, even with the consent of the parents, with the exception of emancipated citizens and citizens who have married before the age of eighteen. Also, this article indicates that it is not allowed to make a will by two or more citizens (so-called joint wills), a will may contain orders of only one citizen.

Unlike Russian legislation, the law of some countries (Germany, England, USA) allows joint wills. In addition, Anglo-American law contains another very interesting institution - mutual wills, according to which one or more persons assume reciprocal obligations to each other. The institution of an inheritance contract is also unknown to Russian law, the essence of which is as follows: the testator, on the one hand, and one or several persons, on the other hand, sign an agreement according to which the testator appoints the other party to the contract as his heir, or if the other party is the heir by law, an agreement is concluded on the refusal of such an heir from the inheritance. Unlike a will, an inheritance contract cannot be terminated unilaterally.

Any person and any property that the testator wishes to dispose of in the event of his death (freedom of will) may be indicated in a will. At the same time, this rule is limited by the rules on the compulsory share in the inheritance. In accordance with Art. 1149 of the Civil Code of the Russian Federation, some heirs have the right to inherit, regardless of the content of the will. These include: minors or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator, subject to

a vocation to inherit. The compulsory share is determined in the amount of at least half of the share that would be due to each of the heirs entitled to the compulsory share in case of inheritance by law.

In the content of the will, the testator can not only indicate the heirs, but also appoint the heir in case the heir or heir appointed by him in the will, by law, dies before the opening of the inheritance, or simultaneously with the testator, or after the opening of the inheritance, without having time to accept it, or does not accept inheritance for other reasons or will refuse it, or will not have the right to inherit or will be removed from inheritance as unworthy.

In addition, a legacy or a testamentary assignment may be indicated in a will. According to Art. 1137 of the Civil Code of the Russian Federation, testamentary refusal is the imposition on one or more heirs by will or by law of the fulfillment by inheritance of any obligation of a property nature in favor of one or more persons (consignees) who acquire the right to demand the fulfillment of this obligation. Testamentary assignment - the imposition on one or more heirs by will or by law of the obligation to perform any action of a property or non-property nature, aimed at the implementation of a generally useful goal. So, for example, the testator has the right to impose on one or several heirs the obligation to maintain the domestic animals belonging to the testator, as well as to exercise the necessary supervision and care for them.

The will must be drawn up in the form and in the manner prescribed by law. The Civil Code of the Russian Federation defines the following forms of wills: notarized, closed wills, wills equated to notarized wills, wills in emergency circumstances and testamentary dispositions of rights to funds in banks.

In accordance with Art. 1125 of the Civil Code of the Russian Federation, the will must be written by the testator or written down from his words by a notary. The testator must personally sign the will. At his request, a witness may be present during the drafting and notarization, in contrast to the legislation of foreign countries, where the presence of a witness, or even two, is a prerequisite.

The wills of citizens undergoing treatment in hospitals can be equated with notarized wills (certified

the chief doctors, their deputies for the medical part or the doctors on duty of these hospitals); wills of citizens who are on board ships while sailing (certified by the captains of these ships), etc.

Closed will, as well as wills made in extraordinary circumstances - novels of the Civil Code. The essence of a closed will is that other persons, including a notary, cannot familiarize themselves with its content. A closed will must be written in his own hand and signed by the testator. Failure to comply with these rules entails the invalidity of the will. A closed will in a sealed envelope is handed over by the testator to a notary in the presence of two witnesses who put their signatures on the envelope. This envelope is sealed by a notary in another envelope, on which the notary makes an inscription containing information about the testator, the place and date of his adoption, surname, name, patronymic and place of residence of each witness in accordance with the identity document. Undoubtedly, the closed form of the will allows ensuring the secrecy of the will, guarantees its safety, but has another drawback. Drafted by the testator himself, without the assistance of a competent lawyer, such a will may well contain, for example, illegal dispositions, or wording that is open to double interpretation, which would subsequently complicate its implementation.

In accordance with Art. 1129 of the Civil Code of the Russian Federation, a citizen who is in a position that clearly threatens his life, and due to the current extraordinary circumstances, is deprived of the opportunity to make a will in another form, can state his last will in relation to his property in simple writing. This requires the presence of two witnesses. Such a will becomes invalid if the testator, within a month after the termination of these circumstances, does not take advantage of the opportunity to make a will in any other form.

Funds contributed by a citizen to a deposit or located in any other account of a citizen in a bank may be bequeathed by making a testamentary disposition in writing at the branch of the bank in which this account is located. And also they can be included in the hereditary mass and inherited on a general basis.

The testator has the right to revoke or amend the will drawn up by him at any time after its execution, without indicating the reasons for its revocation or amendment. No consent is required to revoke or amend a will.

In the absence of a will or its invalidity, inheritance will take place on the basis of the law. The heirs are called to inherit in the order of priority provided for in Articles 1142 - 1145 and 1148 of the Civil Code of the Russian Federation. The law establishes seven queues of heirs. The heirs of each successive queue inherit, if there are no heirs of the previous queues. The heirs of the first order include: children, spouse and parents of the testator. Second stage: full and half brothers and sisters of the testator, his grandfather and grandmother, both on the father's and mother's side. Third priority: full and half brothers and sisters of the testator’s parents (testator’s uncle and aunt). The fourth stage: the testator's great-grandfathers and great-grandmothers. Heirs of the fifth stage: children of the testator's nephews and nieces (great-cousins ​​and granddaughters) and brothers and sisters of his grandparents (great-uncles and grandmothers). The sixth line is represented by the children of the testator's cousins ​​and granddaughters (great-cousins ​​and great-granddaughters), children of his cousins ​​and sisters

(great-nephews and nieces) and children of his great-uncles and grandmothers (great-uncles and aunts). And finally, the heirs of the seventh order - stepsons, stepdaughters, stepfather and stepmother of the testator.

In the event that: there are no heirs both by law and by will; or none of the heirs has the right to inherit; or all heirs are removed from inheritance; or none of the heirs accepted the inheritance; either all the heirs have abandoned the inheritance, then the property of the deceased is considered escheat . The unclean property is transferred by way of inheritance under the law into the ownership of the Russian Federation (Art. 1151 of the Civil Code of the Russian Federation).

To acquire an inheritance, the heir must accept it. Acceptance of inheritance is a one-way transaction. Acceptance of inheritance on condition or with reservations is not allowed. There are two ways to accept inheritance: legally or de facto. The legal method involves filing at the place of opening of the inheritance to the notary of the heir's application for accepting the inheritance or the heir's application for issuing a certificate of the right to inheritance. The actual method consists in the commission by the heir of actions that testify to the actual acceptance of the inheritance, in particular: taking possession or managing the inherited property; taking measures to preserve inherited property, protect it from encroachments or claims of third parties; product at its own expense expenses for the maintenance of inherited property; payment at his own expense of the testator's debts or receipt from third parties of the money owed to the testator (Article 1153

Of the Civil Code of the Russian Federation).

These actions must be completed within six months from the date of opening the inheritance. Missing the deadline for accepting the inheritance entails the loss of the right of inheritance. However, this period can be restored, provided that the heir did not know and should not have known about the opening of the inheritance or missed this period for other valid reasons and provided that the heir who missed the period established for accepting the inheritance went to court within six months after the reasons for missing this period have disappeared. The restoration of the missed term is carried out by the court. Without going to court, the inheritance can be accepted by the heir after the expiration of the term, subject to the written consent of all other heirs who have accepted the inheritance.

Ownership may also arise in relation to the property of a reorganized legal entity. In this case, we will talk about succession in the reorganization of legal entities (Article 58 of the Civil Code of the Russian Federation). Succession is the transfer of rights and obligations from one person to another.

The reorganization of a legal entity is carried out by decision of its founders (participants) or the body of the legal entity authorized by the constituent documents. In individual cases established by law, the reorganization of a legal entity may take place by decision of authorized state bodies or with their consent or by a court decision. The forms of reorganization are: merger, affiliation, division, separation, and transformation. Therefore, the succession in the reorganization of legal entities will be determined by the form of its reorganization.

In accordance with Art. 58 of the Civil Code of the Russian Federation, the transfer of the rights and obligations of the reorganized legal entity to its successors must be formalized by a deed of transfer or separation balance sheet, which is drawn up during reorganization in the form of division or separation. In the event of a merger, accession and transformation, each of the legal entities terminating their activities draws up a deed of transfer. The main function of the deed of transfer and the separation balance sheet is to determine which rights and obligations and to what extent are transferred to each of the legal successors. The requirements of the Civil Code of the Russian Federation both for the separation balance sheet and for the deed of transfer are, in principle, the same. These documents must contain provisions on legal succession for all obligations of the reorganized legal entity in relation to all its creditors and debtors, including those obligations that the reorganized legal entity disputes. A legal entity has the right to independently determine the mechanism and proportions of the division of property, however, the relevant information must be clearly reflected in the division balance sheet. The deed of transfer and the separation balance sheet are approved by the participants (founders) of the reorganized legal entity, and in the case of a forced reorganization - by those bodies that made the decision on this reorganization. In addition, the provision of these documents is necessary for the state registration of newly formed legal entities as a result of reorganization or for making changes to the constituent documents of existing legal entities (in the case of reorganization in the form of affiliation). Failure to provide a deed of transfer or separation balance sheet, as well as the absence of provisions on succession in them, are grounds for unconditional refusal to register.

When reorganizing a legal entity, it is important to determine the moment at which the transfer of rights and obligations to the legal successor takes place. In Art. 57 of the Civil Code of the Russian Federation, this moment is clearly defined: the transfer of rights and obligations from the reorganized legal entity to its legal successor coincides with the moment when the legal entity is considered reorganized.

In case of reorganization in the form of merger, division, separation and transformation, such a moment is the day of state registration of the newly emerged legal entities, since succession is not based on any separate contract, it is a consequence of the very reorganization of the legal entity. Accordingly, the fact of state registration of newly created organizations is of decisive importance for the transfer of rights and obligations. Until this moment, the transfer of rights and obligations is impossible, since the legal entity - the legal successor has not yet been created.

The reorganization of a legal entity through the affiliation of another legal entity to it is considered to have occurred from the moment the entry on the termination of the affiliated legal entity is entered into the state register of legal entities. That is, the moment of transfer of rights and obligations is associated with the fact of making an appropriate entry in the state register.

Since reorganization is always associated with property legal succession between legal entities, during its implementation, the question of the scope of rights and obligations that are transferred to the legal successor is of significant importance. As a result of the reorganization, the rights and obligations of legal entities can be transferred: in full, only to one legal successor (in case of merger, accession and transformation); in full, but to several successors in the relevant parts (if allocated); partially, both to one and to several successors (if allocated).

Thus, summing up, we note the following: In the Civil Code, fundamentally new provisions are in force in inheritance law that strengthen the rights of property owners (inheritance by will), guarantee freedom of will and expand the forms of inheritance. The ownership of the property of the reorganized legal entity is transferred to its successors in accordance with the deed of transfer and the separation balance sheet. Assignees are determined depending on the form of reorganization.

Conclusion

Thus, having considered the main provisions of the institution of acquiring property rights, the following results can be summed up. Ownership is acquired for various reasons and in different ways. It arises in the presence of certain legal facts, which constitute its methods (grounds) of acquisition. These methods can be original or derivative. The differentiation of the above classification is based on the succession criterion. In accordance with the original methods, the right of ownership arises when creating or making a new thing, processing, receiving fruits, products, income from the use of property, for unauthorized construction (under certain conditions), when collecting publicly available things, for the mismanaged contents of property, in the event of a find or detection of treasure and by age of possession. Derivative methods include the acquisition of property rights under a transaction, in the order of universal succession (inheritance) and reorganization of a legal entity.

The legal regulation of relations arising from the acquisition of property rights was reflected in the new Civil Code of the Russian Federation in 1994 in the fourteenth chapter. Taking into account the requirements of a modern market economy, which gives priority to property relations, the following provisions were formulated by the legislator:

1. The right of ownership to a newly manufactured thing is acquired by the one who made or created it for himself in compliance with the law and other legal acts;

2. When processing materials that do not belong to the person who carried out the processing, the owner of the materials enjoys preemptive rights, however, when determining the owner, the nature of processing actions and the ratio of the cost of materials and processing may be taken into account;

3. The collection of public things takes place only when it is allowed in accordance with the law, the general permission (license) given by the owner, or local custom;

4. Unauthorized construction may entail the emergence of ownership of the developer only if there are conditions stipulated by the law. Otherwise, the unauthorized building will be subject to demolition;

5. The right of ownership of fruits, products, income from the use of property arises from a person who uses such property on a legal basis;

6. The right of ownership may arise from persons in relation to ownerless things. In this case, as a general rule, municipal property arises on ownerless immovables. And on ownerless movable things (abandoned things), the right of ownership is acquired depending on the value of these things;

7. Established new rules for finds and treasures. Now a person who has found a thing lost by the owner (find) can acquire it into ownership, subject to certain actions established by law. The person who discovered the treasure can also become its owner, except for cases when the treasure becomes the property of the state;

8. In the new Civil Code of the Russian Federation, the right of ownership has been restored by the prescription of ownership, the main conditions of acquisitive prescription have been concretized, and the statute of limitations has been determined;

9. For the emergence of ownership in the transaction, it is necessary to conclude an agreement between the alienator of the property and its acquirer, as well as the transfer of this property. Only with the transfer does the legislator establish the ownership of the acquirer;

10. Fundamentally new provisions operate in inheritance law, which strengthen the rights of property owners (inheritance by will), guarantee freedom of will and expand the forms of inheritance;

11. The ownership of the property of the reorganized legal entity shall be transferred to its successors in accordance with the deed of transfer and the separation balance sheet. Assignees are determined depending on the form of reorganization;

However, there are still many problems and gaps in the current civil legislation concerning the legal regulation of relations in connection with the emergence of property rights. Some norms prove their inconsistency and ineffectiveness (norms regarding the discovery of finds and treasures), which complicates civil circulation and puts its participants in a difficult position. The absence of stimulating factors in the law forces citizens to act bypassing the established regulatory rules (for example, to hide the fact of discovering a find or treasure containing objects of history and culture), which negatively affects socio-economic relations. Therefore, it seems necessary to make additions, and in some cases, amendments to Chapter 14 of the Civil Code of the Russian Federation.

1. There is a need to concretize the rules on unauthorized construction, due to the fact that on the way of realizing the will of the acquirer in such cases there are a number of formal obstacles that cannot be explained either by the needs of society or by the interests of individuals. Therefore, it is proposed to revise Article 222 of the Civil Code of the Russian Federation, by introducing the following paragraph in clause 3: construction and (or) commissioning, as well as in violation of town planning and building codes and regulations, in the event of subsequent obtaining permission for its construction and (or) commissioning and (or) elimination of violations of town planning and building codes and regulations ”.

And also by referring to town planning and building codes and regulations to establish the permissible limits of the threat to the life and health of citizens created by the preservation of the building.

2. It seems that the course of the period of acquisitive prescription should not be interrupted by a short-term disposal of a thing from possession, if this happened against the will of the owner, since such a short-term disposal is a widespread phenomenon. It is proposed to supplement Article 234 of the Civil Code of the Russian Federation with clause 5 of the following content: "The course of the acquisitive limitation period is not interrupted by the short-term disposal of property from the possession of the person who owns it as his own, if such property was disposed of against the will of the owner, subject to the subsequent restoration of ownership of this person." ...

3. It is required to supplement the norms governing relations regarding the discovery of treasures.

First, it is necessary to regulate the procedure for issuing a permit for excavation or search for valuables by the owner through the development of a special regulation or instruction by the Government of the Russian Federation. Clause 1 of Art. 233 paragraph, as follows: "The procedure for issuing a permit for excavation or search for valuables by the owner of a land plot or other property where excavation or search for valuables is planned is regulated by the Regulations and (or) instructions developed by the Government of the Russian Federation."

Second: it is proposed to amend para. 1 p. 2 art. 233 of the Civil Code of the Russian Federation and increase the remuneration due there for the transfer of things related to cultural or historical monuments to the state up to 100%. Also establish the following in relation to the treasure containing things related to the monuments of history and culture: “If the owner of the land plot or other property where the treasure was hidden is the state or the municipality, then in accordance with paragraph 1 of clause 2 of Art. 233, only the person who discovered the treasure is entitled to remuneration, provided that he meets the requirements specified in paragraph 2 of paragraph 2 of Art. 233 ".

4. It seems necessary to make additions to Art. 227-229 of the Civil Code of the Russian Federation, regulating relations on a find.

First: to establish, in relation to the person who found the thing in the room or on transport, by introducing an additional paragraph in paragraph 1 of Art. 227 of the Civil Code of the Russian Federation, the following: “a person who discovered a thing in a room or on a transport and transferred this thing in accordance with the requirements established by the previous paragraph has the right to demand from the person entitled to receive the thing a reward for finding. Transport and other organizations, owners of premises must notify the finder of the thing about its return to the person entitled to receive the thing. "

Second: to supplement clause 2 of Art. 229 of the Civil Code of the Russian Federation by the following rule: "the presentation of a claim for remuneration is not allowed if the thing is found in an institution or on a vehicle, and the finder is, respectively, an employee of the institution or the driver of a vehicle."

Third: it is necessary to ensure normatively the protection of the right of the person who found the thing to all third parties for the entire period of keeping the found thing with him (by the example of acquisitive prescription). In accordance with this, it is proposed to supplement clause 1 of Art. 228 of the Civil Code of the Russian Federation with the following paragraph: “before acquiring ownership of the found thing, the person who found the thing has the right to protect his possession against third parties who are not the owners of the thing, and who also do not have the right to own it by virtue of otherwise provided by law or foundation agreement ". This rule can also be extended to similar relations arising from the detention of stray animals.

Fourth: it is also necessary to secure the property rights to the person who found the thing, in accordance with this, add an addition in the form of a paragraph in paragraph 2 of Art. 229 of the Civil Code of the Russian Federation: “if the owner of the thing fails to fulfill its obligations to pay remuneration and pay storage costs, the person who found the thing and carried out such storage has the right to retain this thing. Satisfaction of claims at the expense of the thing withheld occurs in accordance with the rule established by Art. 360 of this Code ”.

In conclusion, it should be noted that the above proposals are not indisputable and it is not at all necessary that they will become new norms of civil legislation. However, the conclusions made by the author on the basis of the study can provide theoretical assistance for further study and analysis of the issue of acquiring property rights.

Bibliography

Regulations:

38. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Collected Legislation of the Russian Federation. 26.01.2009. N 4.

Civil Code of the Russian Federation (part one) of November 30, 1994, No. 51-FZ // Collected Legislation of the Russian Federation. 05.12.1994. N 32.

Civil Code of the Russian Federation (part two) dated 26.01.1996 No. 14-FZ // Collected Legislation of the Russian Federation. 01/29/1996. No. 5.

Civil Code of the Russian Federation (part three) of November 26, 2001 No. 146-FZ // Collected Legislation of the Russian Federation. 03.12.2001. N 49.

Civil Procedure Code of the Russian Federation from 14.11. 2002 № 138-ФЗ // Collected Legislation of the Russian Federation. November 18, 2002. N 46.

The Criminal Code of the Russian Federation (Special Part) dated June 13, 1996, No. 63-FZ // Collected Legislation of the Russian Federation. June 17, 1996. N 25.

Law of the Russian Federation "On Subsoil" dated 02.21.1992, No. 2395 - 1 // Collected Legislation of the Russian Federation. 03/06/1995. N 10.

Federal Law "On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation" dated June 25, 2002, No. 73-FZ // Collected Legislation of the Russian Federation. 01.07.2002. N 26.

39. Federal Law "On State and Municipal Unitary Enterprises" dated November 14, 2002 No. 161-FZ // Parliamentary newspaper. 03.12.2002. N 230.

Federal Law "On the Enactment of Part One of the Civil Code of the Russian Federation" dated 30.11.1994 No. 52-FZ // Rossiyskaya Gazeta. 08.12.1994. N 238-239.

40. Federal Law "On State Registration of Rights to Real Estate and Transactions with It" dated July 21, 1997 No. 122-FZ (with amendments and additions, effective from March 1, 2010) // Collected Legislation of the Russian Federation. July 28, 1997. N 30.

Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Simplified Formalization of Citizens' Rights to Certain Real Estate Objects" dated June 30, 2006, No. 93-FZ // Collected Legislation of the Russian Federation. 03.07.2006, No. 27.

41. "Instruction on the procedure for accounting, appraisal and sale of confiscated, ownerless property, property transferred by inheritance to the state, and treasures" (approved by the USSR Ministry of Finance 19.12.1984 N 185) (revised on 13.08.1991, with amendments. 2007) // The document was not published.

Acts of the judiciary:

42. Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 17.02.04 N 76 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2004. No. 3

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.06.2008 No. 780/08 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008. No. 7

Resolution of the Federal Antimonopoly Service of the North-West District of 09.11.2004 No. А05-4976 / 04-24 // Access mode: [# "Times New Roman CYR"> Information on the practice of considering civil cases by the courts of the Kaliningrad region in disputes about unauthorized construction, reconstruction and redevelopment residential premises for 2007 // Access mode: [# "Times New Roman CYR">

Scientific and educational literature:

43. Abova T.E., M.M. Boguslavsky, A.B. Svetlakov. Commentary on the Civil Code of the Russian Federation in 2 volumes / Volume I / Parts one and two. - Publisher: Yurayt, 2010.

Andreev V.K. On the right of private property in Russia (critical essay). - Publ .: Walters Kluver, 2007

Barshchevsky M.Yu. Inheritance law of foreign countries: Textbook. - M .: White Lions, 2007.

Vladimirsky-Budanov M.F. Review of the history of Russian law. - Ed. Phoenix, 1995.

Kamyshansky V.P., Korshunov N.M. Civil law: part one. Textbook. - Publ .: Eksmo, 2009.

Karpychev M.V., Khuzhin A.M. Civil law: Textbook. - Publ .: Forum, 2010.

Korshunov N.M., Andreev Yu.N., Eriashvili N.D. Actual problems of civil law. - Publ .: Unity, 2010.

Kuzbagarov A.N. Civil law: Textbook. - Publisher: Unity. 2009.

Meyer D.I. Russian civil law. - M .: Statut, 2003.

Pereterskiy I.S. , Novitsky I.B. Roman Private Law: A Textbook. - Lawyer, 2004.

Pileev V.V. Civil law: General and Special parts. - Publ .: KnoRus, 2010

Pokrovsky I.A. The main problems of civil law. - Ed. 3rd ,. M .: Statut, 2001 (Classics of Russian civil law)

Seliverstov T., Sedakov S., Isaev I. History of state and law of foreign countries: Textbook. - Welby, 2007.

E.A. Sukhanov Civil law: Textbook. Volume I. - Publ .: Walters Clover, 2004

Tolstoy Yu.N., Sergeev A.P. Civil law: textbook. Volume I. - Publ .: Prospect-Moscow, 2005

Tolcheev N.K. Handbook of a civil judge: 2nd edition, revised and enlarged. - Publ .: Prospect - Moscow, 2008.

Periodicals:

44. Aksenova E.V. "Some problems of succession during reorganization" // Journal "Advocate practice", 2007, No. 4

L.V. Sannikova The ideas of the legislator, incorporated in the content of the Civil Code of the Russian Federation and the wording of article 218 // Journal "State and Law", 2002, No. 9

Electronic resources:

45. A. Rusetsky. Article "Grounds and methods of acquiring property rights." Access mode: # "Times New Roman CYR">

Annex 1

Appendix 2

Appendix 3

Appendix 4

Appendix 5

Case No. 44-G-27/2007
P O S T A N O V L E N I E

February 12, 2007 Kaliningrad

The Presidium of the Kaliningrad Regional Court composed of: The presiding Faleev V.I.
Members of the Presidium Bashkireva N.N., Golysheva Yu.I., Kramarenko O.A., Lakhonina R.I., Kostikova S.I.

considered on the supervisory complaint of the Kaliningrad customs the case on the application of the Kaliningrad regional branch of the Russian Federal Property Fund (hereinafter - RFBR KRO) on the recognition of property as ownerless, submitted for consideration by the presidium by the decision of Judge A.A. Strukova after hearing the report of the judge of the Kaliningrad Regional Court S.I. Kostikov, explanations of B.R.R., who considered the decision correct, the Presidium of the Kaliningrad Regional Court

U S T A N O V I L:

KRO RFBR applied to the court to declare an Audi-80 car, state number BAU 892 of the Republic of Lithuania, manufactured in 1983, identification number WAUZZZ81ZDA108303 as ownerless and to turn into state revenue, referring to the fact that on January 13, 2002 the traffic police officers The Internal Affairs Directorate of the Kaliningrad region detained the specified car belonging to the citizen of the Russian Federation B.R.R. According to the vehicle registration certificate No. РС 010716, this vehicle is registered in the Republic of Lithuania, the vehicle import certificate has not been issued. On January 16, 2002, on this fact, the Kaliningrad customs drew up a protocol on violation of customs regulations No. 10205000-146 / 2002, and on March 15, 2002, a resolution was issued in the case of violation of customs regulations No. 10205000-146 / 2002 on the recognition of citizen B. R.R. guilty of committing a violation of customs rules provided for in Part 1 of Article 279 of the Customs Code of the Russian Federation. Clause 2 of this decree stipulates that the car must be returned to the owner after payment of the due customs payments. On December 9, 2005, the Kaliningrad Customs sent B.R.R. notification of the need to formalize the named vehicle in the customs relation and pick it up from the temporary storage warehouse within one month. December 21, 2005 B.R.R. expressed a desire to pick up the car from the warehouse, however, due to non-payment of customs duties, the car was not returned to him and until now the vehicle is stored at the INMAR temporary storage warehouse. The maximum two-month period for storage of vehicles in the temporary storage warehouse by individuals established by the order of the State Customs Committee of the Russian Federation of January 30, 1997 has expired, but B.R.R. did not take steps to receive his property. Believing that by his inaction, B.R.R. demonstrates the actual renunciation of ownership of the car belonging to him, the RFBR KRO asked to recognize the car as ownerless and turn it into state revenue.

By the decision of the Moscow District Court of Kaliningrad on June 2, 2006, the claims filed by the KRO RFBR were denied.
In the supervisory appeal the applicant asks to set aside the decision of June 2, 2006 due to significant violations of substantive law committed by the court, pointing out that the court did not take into account the circumstances indicating that B.R.R. actually gave up ownership of the above vehicle.
Having checked the materials of the case, having discussed the arguments of the complaint, the presidium finds it subject to satisfaction.

On the basis of Article 387 of the Code of Civil Procedure of the Russian Federation, the grounds for canceling or changing court decisions by way of supervision are significant violations of the norms of substantive or procedural law.

On the basis of Part 1 of Article 225 of the Civil Code of the Russian Federation, an ownerless thing is a thing that does not have an owner or the owner of which is unknown, or a thing, the owner of which has refused the right of ownership.

When deciding to refuse to satisfy the application for recognizing the specified car as ownerless, the court proceeded from the statement of B.R.R. at a court hearing about the intention to pick up the car from the temporary storage warehouse.

At the same time, it follows from the materials of the case that from the moment the decision was made in the case of violation of customs regulations No. 10205000-146 / 2002 of 03/15/2002, B.R.R. the location of the car and the conditions for its return were known. On 12/09/2005, the Kaliningrad customs sent B.R.R. notification of the need to register the named vehicle in customs and pick it up from the temporary storage warehouse within a month. December 21, 2005 B.R.R. expressed a desire to pick up the car from the warehouse, however, due to non-payment of customs duties, the car was not returned to him. Despite the statement made in the court session on 2.06.2006 about the intention to take the car from the temporary storage warehouse "INMAR", to date, B.R.R. did not take measures to receive his property and pay customs duties.

B.R.R.'s actions may indicate its actual elimination from possession, use and disposal of property without the intention to retain any rights to this property, which may be the basis for the termination of ownership in accordance with the provisions of part 1 of article 235, part 1 of article 236 of the Civil Code of the Russian Federation , which when ruling the decision were not applied by the court.

Guided by Articles 388 and 390 of the Code of Civil Procedure of the Russian Federation, the Presidium of the Kaliningrad Regional Court

P O S T A N O V I L:

The decision of the Moskovskiy District Court of Kaliningrad of June 2, 2006 was canceled and the case was sent for a new consideration to the same court of first instance.
Presiding
V.I.Faleev

Appendix 6

RUSSIAN FEDERATION
KALININGRAD REGIONAL COURT
Judge Strigunova G.G. Case No. 33 - 1544
CASSATION DEFINITION
April 7, 2010 the city of Kaliningrad
Judicial Collegium for Civil Cases of the Kaliningrad Regional Court composed of:
Chairperson: Kramarenko O.A.
Judges: Zinchenko S.V., Strukova A.A.
With the secretary: Koroleva Yu.V.

examined at the hearing on April 7, 2010 the cassation appeal of B.N.N. against the decision of the Gusevsky City Court dated February 1, 2010, which in the claim of B.N.N. to Kh.I.I., Kh.N.I. on the demolition of the unauthorized building, restoration of the fence on the border of the land plots, the collection of legal costs was denied.

Having heard the report of Judge Zinchenko S.V., the explanations of B.N.N., who supported the cassation appeal, the judicial board

INSTALLED:

B.N.N. went to court with a claim against H.AND.AND. and Kh.N.I. on the demolition of an unauthorized building, referring to the fact that he permanently lives in an individual residential building ** on the street. U. in the city of Gusev. The specified house belongs to her on the basis of the right of ownership. The residential building is located on a land plot of 800 sq.m, which she owns. She was also given a lease of a land plot with an area of ​​666 sq. M, located next to her house on the basis of a lease agreement concluded with the administration of the municipal district "Gusevsky urban district". The specified land plot is located next to the land plot H. Individual dwelling house ** on the street. U. in the city of Gusev belongs to them on the basis of shared ownership in equal shares, Ѕ share to each. The defendants unauthorizedly demolished part of the fence belonging to her on her site, trampled the beds, erected a brick garage on the site of the demolished fence, and also installed a solid fence around their site with a height of two meters. At the same time, the garage is located right along the dividing boundary, and the garage wall is a continuation of the fence they built. On the fact of unauthorized construction, on June 24, 2008 and on October 14, 2008, she applied with statements to the head of the administration of the municipal district "Gusevsky urban district" and on June 20, 2008 to the Gusevsky city prosecutor's office. An inspection was carried out on the complaint, during which it was established that construction work was carried out without project documentation agreed in the prescribed manner and without a building permit. On the fact of unauthorized construction, the administration of the municipal district "Gusevsky urban district" drew up an act dated June 25, 2008, the defendants were issued an order to suspend construction work until the authorization documentation was issued in the manner prescribed by law, but the defendants did not fulfill this order. She considered that the actions of the defendants grossly violated her rights as the owner of the adjacent land plot and a residential building. The constructed garage was erected in violation of current building codes and regulations, located directly on the border of their land plots. In addition, due to the proximity of its location to her residential building, the height of the erected garage, sunlight does not enter her residential building, and part of her land plot located between her house and the garage erected by the defendants is shaded. She asked to oblige the defendants at their own expense to demolish the unauthorized garage, located between houses ** and ** on the street. U. in the city of Gusev and restore the fence demolished by them on the border of the land plots.

The court made the above decision.

In her cassation appeal, B. disagrees with the decision, considering the court's conclusions unfounded. After examining the case materials and discussing the arguments of the cassation appeal, the panel of judges finds the court decision to be canceled due to an incomplete definition of the circumstances relevant to the case.

Part 1 of Art. 222 of the Civil Code of the Russian Federation stipulates that an unauthorized building is a residential house, other structure, structure or other immovable property created on a land plot not allotted for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this, or with a significant violation of urban planning and building codes and regulations.

According to the certificate of the Gusevsky branch of the Kaliningrad branch of the Federal State Unitary Enterprise "Rostekhinventarizatsiya - Federal BTI" BNN. is the owner of a residential building located at Gusev, st. U., **. Defendants H.AND.AND. and Kh.N.I. are the owners of the house number ** on the street. U. in the city of Gusev.

The court found that the garage, erected between residential buildings ** and ** on the street. U. in the city of Gusev, located on a plot of land owned by the defendants on the basis of shared ownership.

According to the cadastral plan of the land plot, the above land plot has a permitted use - a house, outbuildings, a garden, a vegetable garden. In fact, he is occupied with a house, outbuildings, a garden and a vegetable garden.

The court correctly pointed out that the defendants did not violate the requirements of Art. 222 of the Civil Code of the Russian Federation regarding the construction of a garage on a land plot not allotted for these purposes.

B. pointed out that the insolation of her house was disturbed by the construction of a garage and a solid two-meter fence, and part of the land plot was shaded.

With which the court reasonably disagreed, referring to the technical opinion on the examination of the unauthorized garage built at the address of Gusev, st. U., **, according to which, the garage, erected at Gusev, st. U., **, for insolation of the house located at Gusev, st. U., **, does not affect. Insolation level of residential building # ** on st. In the city of Gusev, as a result of the erected garage, it has not been reduced below the values ​​specified in SNiP 23-05-95 * "Natural and artificial lighting" without its demolition.

Taking into account only this circumstance, the court indicated that no violations of the plaintiff's rights by the construction of a garage by the defendants were established.

Meanwhile, without sufficient verification and assessment by the court, B.'s argument was left that when the defendants erected a garage, building codes and regulations, fire-prevention requirements were violated, t.to. the defendants' garage was erected directly on the boundary dividing adjacent land plots, between the windows of the living room of the plaintiff's house and the garage wall less than 6 square meters.

In accordance with paragraphs. 5.3.4, 5.3.8 of the Code of Rules for Design and Construction "Planning and Development of Low-Rise Housing Construction Areas", adopted by the Resolution of the State Construction Committee of the Russian Federation on December 30, 1999, No. 94 (SP 30-102-99), sanitary and living conditions should be at least: from other buildings (baths, garage, etc.) - 1 meter. On the territory with the development of manor houses, one-two-apartment houses, the distance from the windows of living rooms to the walls of a neighboring house and outbuildings (shed, garage, bath) located on neighboring land plots must be at least 6 meters.

These requirements are also contained in clause 2.12 of SNiP 2.07.01-89 “Urban planning. Planning and development of urban and rural settlements. "

The court, taking into account the arguments of the plaintiff, should have checked whether the above requirements were met during the construction of the garage - at what distance from the border of their land plot the garage was erected by the defendants, what is the distance from the windows of the living room of the plaintiff's house to the wall of X's garage on the neighboring land plot, what has been done did not have.

In view of the foregoing, the collegium cannot agree with the conclusion of the court that the construction of X's garage complies with the building codes and regulations and does not violate B.'s rights.

The decision of the court cannot be recognized as lawful and reasonable; violations committed by the court of first instance cannot be corrected by the court of cassation.

When re-examining the case, the court must eliminate the above-mentioned shortcomings and, taking into account the evidence presented by the parties and their assessment, make a lawful and well-grounded decision.

Guided by paragraph 2 of Art. 361, art. 366 Code of Civil Procedure of the Russian Federation, judicial board

DEFINED:

The decision of the Gusevsky city court of February 1, 2010 was canceled, the case was sent for a new consideration to the same court.

Presiding Officer: Signature
Judges: signatures
Copy is right
Kaliningradsky judge
regional court C.The. Zinchenko

Appendix 7

Case No. 44-g-29/2007
P O S T A N O V L E N I E
Presidium of the Kaliningrad Regional Court
February 26, 2007 Kaliningrad
Presidium of the Kaliningrad Regional Court consisting of:
Chairperson Kramarenko O.A.
Members of the Presidium Golyshev Y.I., Bashkirevoy N.N.,
Lakhonina R.I., Kostikova S.I.,
Kuznetsova O.D., Naumenko B.I.

examined on supervisory complaints B.M.Yu., K.T.B., V.A.AND. case on the claim of G.AND.G. to the administration of the municipal formation "Zelenogradskiy district", G.A.P., B.I.G. on the recognition of ownership.
Having heard the report of the presiding officer Kramarenko OA, the explanations of the representative B.M.Yu. by power of attorney dated February 26, 2007 R.E.A., who supported the arguments of the complaint, the Presidium of the Kaliningrad Regional Court

U S T A N O V I L:

G.I.G. applied to the court with a claim for the recognition of his ownership due to acquisitive prescription for a one-story residential building with a total area of ​​12.7 square meters, located on the street. Г, 13 "b" in Zelenogradsk, Kaliningrad region, referring to the fact that this house was built in 1972 by him, his father G.G.L. and was used for living in the summer, and the adjoining territory was actually used for gardening and horticulture without registering the right to a land plot in accordance with the procedure established by law.

By the decision of the magistrate of the Zelenogradskiy court district of September 19, 2006 for G.I.H. recognized ownership of the building - a one-storey house with an area of ​​12.7 square meters, located in Zelenogradsk, st. G., 13 "b".

The case was not considered on appeal.

In the supervisory complaints, the applicants ask to cancel the decision of September 19, 2006 due to the significant violations of the substantive and procedural law committed by the court and indicate that they were not involved in the case as adjacent land users whose rights to the development of their land plots were violated by the decision court; the court unreasonably accepted the recognition of the claim by the defendants; the court did not take into account that the disputed building is an unauthorized building, which is not subject to acquisitive prescription; it was not taken into account that the land plot for the existing structure was not provided; the issue of compliance of the specified structure with sanitary, environmental, fire safety standards has not been investigated.

By the decision of the judge of the Kaliningrad Regional Court of December 29, 2006, the case was requested to the Kaliningrad Regional Court, the execution of the decision was suspended and by the decision of the judge of January 31, 2007 the case was transferred for consideration on the merits to the presidium of the Kaliningrad Regional Court.

Having checked the case materials, having discussed the arguments of the supervisory complaints and the objections of G.I.G. to the presidium, the presidium finds the contested decision of the magistrate to be canceled.

By virtue of Article 387 of the Code of Civil Procedure of the Russian Federation, the grounds for canceling or changing court decisions by way of supervision are significant violations of the norms of substantive or procedural law.

It follows from the materials of the case that the court accepted the recognition of the claim by the defendants and in the reasoning part of the decision it was indicated only that the claim was recognized and accepted by the court.

In accordance with Article 173 of the Code of Civil Procedure of the Russian Federation, the recognition of the claim by the defendant is entered into the minutes of the court session and signed by the defendant. If the recognition of the claim is expressed in written statements addressed to the court, these statements are attached to the case, as indicated in the minutes of the court session (part 1); the court explains to the defendant the consequences of recognizing the claim (part 2); when the defendant recognizes the claim and accepts it, the court makes a decision to satisfy the claims stated by the plaintiff (part 3).

At the same time, the defendants G.A.P. and the administration of the Zelenogradskiy District, having submitted written statements of agreement with the plaintiff's claims to the Justice of the Peace, did not appear at the hearing and, accordingly, the consequences of the recognition of the claim by the Justice of the Peace were not explained to them.

Defendant B.I.G. in the court session she declared the claim was recognized, however, the magistrate explained to her without sufficient grounds the provisions of Article 220 of the Code of Civil Procedure of the Russian Federation, about which there is a corresponding entry in the minutes of the court session of September 19, 2006.

In addition, when accepting the recognition of the claim, the magistrate proceeded from the fact that the recognition of the claim did not affect the interests of other persons.

At the same time, from the supervisory complaints of the applicants and the attached copies of topographical surveys, certificates of ownership, an agreement for the implementation of design work with a copy of the travel arrangement plan, it is clear that the applicants are adjacent land users, and the land plot where the disputed structure is located is planned for organization of travel, including to the land plots of the applicants.

However, the magistrate did not investigate the question of whether the rights of adjacent land users were affected by the dispute, and the applicants were not involved in the case.

By virtue of Article 363 of the Code of Civil Procedure of the Russian Federation, the norms of substantive law are considered violated or incorrectly applied if:

the court did not apply the applicable law;
the court applied the law that is not applicable;
the court misinterpreted the law.

It does not follow from the text of the statement of claim that the controversial structure was erected on a plot of land allocated for these purposes on the basis of an agreed working design and a building permit.

On the basis of Article 234 of the Civil Code of the Russian Federation, a person is a citizen or a legal entity,
- who is not the owner of the property, but in good faith, openly and continuously owns both his own real estate for fifteen years or other property for five years, acquires the right of ownership to this property (acquisitive prescription).

Within the meaning of the cited norm of the law, acquisitive prescription does not apply to an unauthorizedly erected structure located on an illegally occupied land plot.

However, the magistrate did not check the question of whether a land plot was allocated for the indicated structure, whether a building permit and an act of putting the building into operation were issued.

In such circumstances, the court's decision, as made with a significant violation of the norms of substantive and procedural law, is subject to cancellation with the direction of the case for a new consideration.

Based on the foregoing, guided by Articles 387, 388, 390 of the Code of Civil Procedure of the Russian Federation, the Presidium of the Kaliningrad Regional Court

P O S T A N O V I L:

The decision of the magistrate of the Zelenograd court district of September 19, 2006 to cancel, the case to send for a new trial to the same magistrate.

Presiding
O.A. Kramarenko

Property is both an economic and a legal category. Property as an economic category is social relations that develop between people about the possession of the means of production and consumer goods. Being regulated by legal norms, that is, presented in the form of legal rights and obligations of the participants in these relations, economic property relations acquire the character of legal relations, acting as a property right.

The property right, as a rule, is a property right, that is, its objects in most cases are things, property. However, along with things in accordance with Art. 44 of the Constitution of the Russian Federation, citizens and legal entities can own objects of intellectual property, which can be discoveries, inventions, the results of literary, artistic, scientific creativity, etc.

The subjects of property rights in Russia are citizens, non-state legal entities, the Russian Federation, constituent entities of the Russian Federation and municipalities. State legal entities do not have ownership of the property assigned to them. It belongs to them on the basis of economic management or operational management.

• ownership;
• the right to use;
• the right to dispose of property objects.

Ownership is the legal ability to own property. Ownership may not belong to the owner with the permission or consent of the owner (the so-called legal ownership). Use is a law-based possibility of exploitation, use of property by extracting its useful properties. Ownership is a prerequisite for use. The right to use, like ownership, may not belong to the owner. An order is the possibility of determining and changing the legal fate of property, making all kinds of transactions with it, for example, alienation under a contract, inheritance, destruction, etc.

• The owner owns, on the one hand, the benefits of owning property and receiving income from its use, on the other hand, the burden of bearing the associated costs, costs and risks (protection, repair, maintenance, etc.) (Article 209 of the Civil Code RF).
• The owner bears the risk of accidental loss or damage to his property, that is, he bears losses from loss or damage to property that occurred through no fault of a particular person.

Proceeding from this, the law establishes that from the moment of the transfer to the acquirer of the ownership of the property (usually from the moment of transfer of the thing), the risk of accidental loss or damage to the thing passes to him, unless otherwise provided by law or contract (Article 211 of the Civil Code of the Russian Federation) ...

Forms of ownership in the Russian Federation are recognized: private, state, municipal and other forms of ownership (Article 212 of the Civil Code of the Russian Federation).

Subjects private property there can be citizens and non-state legal entities. They can own any property, except for that which is in the exclusive ownership of the state (bowels of the earth, forests, water, etc.). The sources of private property can only be property and income obtained by legal means. The legislation allows owners to use their property for business purposes. The only requirement is that this activity must be carried out in accordance with the legislation and in the manner prescribed by law.

State property- this is property owned by the Russian Federation (federal property) and the constituent entities of the Russian Federation (property of republics, territories, regions, etc.) (Article 214 of the Civil Code of the Russian Federation). Thus, state property can be of two levels of socialization: on the scale of the Russian Federation and on the scale of the subject of the Russian Federation. Federal property is public property. Any objects can be owned by the Russian Federation. It includes: the budget of the Russian Federation, enterprises of leading industries of national importance, higher educational institutions, historical and cultural monuments of national value, and many others. other. The subjects of the Russian Federation own similar objects, assigned to them by law and having significance on the scale of the subject of the Russian Federation: the corresponding budgets, enterprises, educational institutions, healthcare institutions, etc.

On behalf of the Russian Federation and the constituent entities of the Russian Federation, the rights of the owner are exercised by state authorities within the framework of their competence established by law. State-owned property is assigned to state-owned enterprises and institutions for possession, use and disposal on the basis of the rights of economic management or operational management. The owner of property assigned to state-owned enterprises and institutions has the right to withdraw excess, unused or misused property and dispose of it at his own discretion.

Municipal property- this is property owned by urban and rural settlements, as well as other municipalities. Municipal property includes: funds of the corresponding budget; enterprises and organizations of local importance; trade enterprises; Catering; consumer services; healthcare and educational institutions; public transport; residential and non-residential fund; cultural institutions and other objects that do not constitute state property (Article 215 of the Civil Code of the Russian Federation).

Common property- this is property owned by two or more persons (Article 244 of the Civil Code of the Russian Federation).

It can be shared (with the determination of the shares of each) and joint (without the determination of the share of each owner). A share in a right is usually referred to as an ideal share, it is recognized as equal if there is no contract. A participant in shared ownership has the right to sell his share, as well as demand the separation of his share, turning it into a real share. When a share in common ownership is sold to an outsider, the other participants have the preemptive right to purchase the sold share. Common joint property is the property acquired by the spouses during marriage and the property of a peasant (farm) economy. Participants in joint ownership jointly own and use common property. When disposing of joint property (sale, lease, etc.), a transaction made by any participant is assumed to have been completed by the common consent of all participants. The division of joint ownership and the allocation of the share of one of the participants is preceded by a preliminary determination of the share of each of the participants in the right to common property (Articles 246 - 251 of the Civil Code of the Russian Federation).

4.2. Grounds for the emergence of ownership

The grounds for acquiring the right of ownership are those legal facts with which the law connects the emergence of this right. To acquire ownership, the existence of a thing (property) is necessary, which may be the property of a given person, an expression of his will to own this thing and other circumstances provided for by law (Article 218 of the Civil Code of the Russian Federation).

Methods for the emergence of ownership it is customary to divide into initial and derivatives.

Initial ways characterized by the fact that the property right arises (is established) either for the first time, or independently of the will of the previous owner. These include the following grounds:

1. Acquisition of ownership of a newly created thing. Newly created real estate (Article 219 of the Civil Code of the Russian Federation).

2. Acquisition of ownership of fruits, products, income received as a result of the use of property.

3. Acquisition of ownership as a result of processing

• unless otherwise provided by the contract, the ownership of the new movable thing is acquired by the owner of the materials;
• if the cost of processing a thing significantly exceeds the cost of materials, then the processor is the owner, if he acted in good faith and carried out this work for himself (Article 220 of the Civil Code of the Russian Federation).

4. Turning into ownership of things that are generally available for collection (picking berries, fishing, etc.) (Article 221 of the Civil Code of the Russian Federation).

5. Acquisition of ownership of ownerless property (things that the owner refused, find, stray animals, treasure) (Articles 225 - 235 of the Civil Code of the Russian Federation).

6. Acquisition of property rights as a result of acquisitive prescription: if the person is not the owner, but in good faith, openly and continuously owns the property as his own (immovable - within 15 years, otherwise - within 5 years). Until the expiration of the specified periods, this person enjoys the protection of his possession from all other persons (Article 231 of the Civil Code of the Russian Federation).

7. The acquisition of ownership of an unauthorized building can be recognized by a court if the site is provided for the erected building in accordance with the established procedure (Article 222 of the Civil Code of the Russian Federation).

Derivatives are the grounds associated with the transfer of a thing (property) from the property of one subject to another, on the basis of succession or expression of the will of the previous owner, as a result of a contract, a unilateral transaction.

These include the following grounds:

1. Acquisition of property rights under a sale and purchase agreement, exchange, donation or as a result of another transaction on the alienation of property.
2. Acquisition of ownership of the property of a legal entity during its reorganization.
3. Inheritance by will or law 1 .
4. Acquisition of ownership by a member of a housing, garage or other consumer cooperative to the relevant premises after the entire amount of the share contribution has been paid.

4.3. Termination of ownership

The grounds for the termination of ownership can be divided into the following types (Article 235 of the Civil Code of the Russian Federation):

1) termination of the right of ownership at the will of the owner by transferring this right to other persons (under contracts of sale, supply, donation, etc.) or by renouncing the right of ownership. Until the acquisition of the right of ownership to a thing, which was abandoned by its previous owner, the rights and obligations of the original owner shall not be terminated by another person. This means the possibility of not only returning the given thing to the previous owner (since he has not lost his right to it anyway), but also making him responsible, for example, for the harm caused by this thing (if the thing thrown out by the owner had any harmful properties, for example , old refrigerator, car);

2) termination of ownership as a result of events: death of the owner, loss or destruction of property due to natural disasters, fires, accidents and other unforeseen circumstances;

In the event of the death of a thing, it is understood that it happened in the absence of anyone's fault, due to random reasons or force majeure, for the results of which no one, as a rule, is responsible. Then the risk of loss of property, as a general rule, lies with the owner himself. If the thing is destroyed through the fault of other (third) persons, they bear property liability to the owner for causing harm;

3) the termination of the right of ownership due to the compulsory seizure of the property from the owner is carried out on specific grounds, which are provided for by legislation. At the same time, the list of such cases is formulated in an exhaustive way, which does not allow its expansion even by another law. This is one of the important guarantees of the rights of the owner. Specific grounds for the seizure of property from the owner against his will, and in these cases, must be directly provided for by law.

The seizure of property from the owner in these cases, as a general rule, is carried out on a reimbursable basis, that is, with compensation to the owner of the value of the seized thing (things). These include:

alienation of property that cannot belong to this person by virtue of the prohibition in the law;

alienation of real estate in connection with the seizure of a land plot;

redemption of mismanaged cultural property;

ransom of domestic animals in case of improper treatment with them;

requisition;

payment of compensation to a participant in shared ownership in exchange for the part of the common property due to him if it is disproportionate to the allocated share;

acquisition of ownership of real estate by a court decision in cases where it is impossible to demolish a building or structure located on someone else's land plot;

redemption of a land plot for state or municipal needs in accordance with a court decision;

seizure from the owner of a land plot used by him in gross violation of the requirements of the law;

sale of the contents of a dwelling at a public auction by a court decision;

nationalization of the property of the owners by virtue of the adoption of a special law.

The law allows the gratuitous withdrawal from the owner of the property belonging to him against his will, when levying execution on the owner's property for his obligations by means of confiscation of property.

A special case of termination of property rights is the privatization of state and municipal property. It applies only to property that is in state and municipal ownership, that is, it is intended only for public, not private owners, and already by virtue of this cannot be considered as a general basis for the termination of ownership. At the same time, it always becomes the basis for the emergence of the right of private property (citizens and legal entities). Finally, it can only be carried out in the manner prescribed by the laws on privatization, and not by general civil law.

4.4. Protection of property rights. Ways to protect property rights

Civil law enshrines the principle of equality of all forms of ownership and equal protection of the rights of all owners. It is customary to highlight ways to protect property rights:

• legal obligations;
• real legal.

The former are presented by the owner to the violator of his right, with whom the owner is or was in legal relations, i.e., the violation of property rights was the result of failure to fulfill or improper fulfillment of an obligation (the seller avoids transferring the thing to the buyer; the keeper does not return the thing to the depositor, etc.). ).

While the second - property-legal - are the claims of the owner against the violator of his rights, with whom the owner was not and does not have legal relations, regarding the object of property rights. These claims are named respectively: vindication and negative.

Vindication claim associated with deprivation of ownership. This is a claim by the owner for the withdrawal of a thing from someone else's, illegal possession (Article 301 of the Civil Code of the Russian Federation). Conditions that must be met upon presentation:

1. They can be declared only in relation to individually defined things that have been preserved in nature.

2. The owner has the right to reclaim his property only if another person owns it illegally. If there are legal grounds for assigning property to a legal entity on the basis of the right of economic management, operational management, other limited property rights, the use of property on the basis of a lease agreement, fixed-term paid use, etc.

3. Even in cases where the respective property is claimed by the owner from a person whose possession is illegal (without title), such a claim is subject to unconditional satisfaction (of course, subject to the first two conditions) only in relation to the dishonest acquirer.

Only the purchaser who acquired it for a fee and at the same time did not know and could not know that the person who sold the property to him did not have the right to alienate it is recognized as good faith. The property may be reclaimed from a bona fide acquirer by the owner only in exceptional cases when the property is lost by the owner or the person to whom it has been transferred by the owner into possession, or stolen from them or left from their possession in any other way against their will. The absence of these circumstances does not allow the owner to reclaim the property from a bona fide purchaser, since the behavior of that person, from a legal point of view, must be recognized as irreproachable. In relation to such types of property as money and bearer securities, a special rule has been established, according to which they cannot be claimed by the owner from a bona fide acquirer under any circumstances.

Negative claim associated with violation of the right to use. This is the owner's claim to eliminate any violations of his rights not related to deprivation of ownership (Article 304 of the Civil Code of the Russian Federation).

The claim is satisfied if the defendant committed illegal actions leading to a violation of property rights. A negative claim is a demand to remove obstacles to the exercise of ownership or other property rights not related to the seizure of property from the owner (legal owner).

It should be noted the features of a negative claim that distinguish it from a vindication claim.

1. The owner or other title owner, who goes to court, retains the property in his possession. The violation of the owner's right consists in the fact that obstacles are imposed on him in the use of it.

2. A necessary condition for filing a negative claim is the violation of the rights of the owner or other title owner by another person. In other words, the offender's actions must be unlawful (i.e. illegal) in nature. If an obstacle to the exercise of property rights is created by lawful actions, the owner cannot use a negative claim to protect his legitimate interests.

3. The essence of the claim in a negative claim is the elimination of a continuing violation that persists at the time the claim is filed. Therefore, a negative claim is not subject to the statute of limitations and can be brought at any time while the violation persists. In cases when it comes to the protection of the right of legal possession, the owner has the right to use both vindication and negative claims against the owner of the property for the purpose of his defense.

Not in all cases the violated right or other limited property right can be protected by the specified methods. The choice remains with the person whose right has been violated. The criteria for such a choice can be: the nature of the violation; the person who committed the violation; the consequences of the application of one or another method of protecting the violated right provided for by legislation. Other ways to protect property rights include:

1. A claim for the recognition of ownership of economic management, operational management, etc. - as an effective way of protection in situations where another person encroaches on this right or disputes it, and the title documents of the owner are not indisputable.

2. A claim for the restoration of the position that existed before the violation of property rights. It can be applied by the owner, in particular, in cases where his property is illegally withheld by another person, and the defense of the violated right by filing a vindication claim for some reason is impossible or inexpedient for the co-owner.

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