Public entities (Russian Federation, constituent entities of the Russian Federation, municipal entities), their structural units, while performing mainly public tasks, at the same time have civil legal personality, ensuring the implementation of their interests and needs related to civil law.
The Russian Federation is a state (as part of all its divisions), distinguished by sovereignty, integrity and called upon to carry out functions of a public legal nature - organization, security, defense capability of the country, sustainable and upward development of the entire society. Subjects of the Russian Federation are political entities that have the properties of sovereignty within the limits of the Constitution. Municipal entities - cities, rural settlements, etc. - also have public legal independence.
The state is a specific subject of civil law. Its special position is due to the presence of two points: equal participation in civil legal relations along with other subjects - citizens and legal entities and the use of power to organize civil turnover.
All these public entities that perform state and other public functions also have civil legal personality.
All public entities (including the institutions that form it, other administrative units) in the field of property and personal non-property relations not covered by regulation by constitutional, administrative law, and other sectors, also have a civil legal status corresponding to the status of a legal entity, unless otherwise follows from the law and the characteristics of a given subject.
Public entities may, by their actions and on behalf of the relevant public entity, acquire and exercise property and personal non-property rights, assume and perform civil obligations, appear in court, etc.
In accordance with federal regulations, acts of constituent entities of the Russian Federation and municipalities, on their special instructions, state bodies, local government bodies, as well as legal entities and citizens can act on their behalf. The bodies that practically exercise civil legal personality on behalf of the entire state (Russian Federation) and the constituent entities of the Russian Federation are, within the framework of their competence, the Government, its bodies, and on property issues - mainly financial bodies (treasury). (In pre-revolutionary Russia, the concept “treasury” was used to designate them. Currently, the concept “treasury” means exclusively property.)
The treasury of the state (the entire Federation, its constituent entities, municipalities) consists of funds from the corresponding budget and other state property not assigned to state enterprises and institutions.
In accordance with Art. 126 of the Civil Code of the Russian Federation, all three divisions of public entities (Russian Federation, constituent entities of the Russian Federation, municipal entities), acting as owners of the corresponding treasury, are not liable for the obligations of each other and for the obligations of the legal entities created by them, except in cases where one has accepted in relation to the other a guarantee (surety) in accordance with the established procedure.
The specifics of the responsibility of the Russian Federation and the constituent entities of the Russian Federation in relations regulated by civil law with the participation of foreign legal entities, citizens and the state are determined in accordance with the norms of private international law by the law on the immunity of the state and its property. Such a law has not yet been adopted.
The peculiarity of the state as a participant in civil legal relations is that it is the bearer of political power and sovereignty. and therefore can, in a normative manner, determine the nature and order of participation of subjects of law in civil legal relations (including the state itself as a participant in these relations). However, in civil legal relations the state does not exercise authority: it acts on an equal footing with its counterparties. The state acts in civil legal relations through its bodies: the Federal Assembly, the President of the Russian Federation, federal executive authorities (ministries, federal services and agencies).
The state acts in both proprietary and obligatory legal relations. Thus, the state is the subject of property rights, including the subject of exclusive property rights (for example, to subsoil). Management and disposal of state property is carried out through the Ministry of Economic Development and Trade and the Federal Agency for Federal Property Management. Transactions on behalf of the state during the alienation of state property during the privatization process are carried out on behalf of the Russian Federal Property Fund.
The state acts in the following obligatory legal relations.
Loan relationships (when issuing bonds and other securities).
In relations for the supply of products for federal government needs
In contracting relationships for government needs.
In relations of gift (when property is donated to the state).
The Russian Federation may be the subject of inheritance legal relations. In particular, it inherits the so-called escheat property, i.e. property that has no heirs or the heirs have refused to accept the inheritance.
The state is also subject to liability for damage caused by illegal actions of the bodies of inquiry, preliminary investigation, prosecutor's office or court.
The Russian Federation can also act in foreign trade, concluding any civil law agreements with foreign counterparties. The most common are loan agreements and the provision of loans. Such agreements are concluded on behalf of the government of the Russian Federation. In some cases, foreign trade transactions are concluded by Russian trade missions, but the state bears responsibility for them.
Subjects of the Russian Federation can also act as subjects of civil legal relations: Republics, territories, regions, autonomous regions, autonomous districts, cities of federal significance. Legislative assemblies, regional dumas, presidents, governments, etc. can act on behalf of the subjects of the federation in civil legal relations. Subjects of the federation exercise ownership rights to property that is the property of these subjects. Subjects of the federation can act as government customers in relations for the supply of goods for government needs. It is possible for them to participate in other contractual legal relations, provided that they do not go beyond the scope of their legal capacity. Subjects of the federation can also be heirs under a will.
Municipal formation - an urban, rural settlement, several settlements united by a common territory, part of a settlement, other populated territory provided for by this Federal Law, within which local self-government is exercised, there is municipal property, a local budget and elected bodies of local self-government.
They enter into civil legal relations through elected local government bodies and heads of municipalities. Exercise the powers of the owner in relation to municipal property and can enter into contractual relations within the scope of their powers. The powers of municipal bodies to participate in civil legal relations are defined in the Law of the Russian Federation “On the General Principles of the Organization of Local Self-Government in the Russian Federation”. In particular, local government bodies have the right to transfer objects of municipal property for temporary and permanent use to individuals and legal entities, lease, alienate in the prescribed manner, as well as make other transactions with property in municipal ownership, determine in contracts the conditions for the use of privatized or objects transferred for use. (Art.
29 Federal Law)
Municipal authorities have the right to issue local loans and lotteries, receive and issue loans.
The state is the guarantor of legality in the implementation of public relations in the field of civil law; in addition, it, represented by federal government bodies, officials and local governments, is an active participant in civil legal relations. The state is a special subject of civil law. As a bearer of political power, the state is not a legal entity; it itself determines the procedure and limits for the exercise of its civil rights and obligations.
The state realizes its legal personality through a system of government bodies. On behalf of the state, state property management bodies, financial and other special bodies authorized by the state participate in civil legal relations.
The state is a subject of state ownership. It assigns most of its property to state enterprises with the right of full economic management, as well as to state institutions and organizations with the right of operational management.
State enterprises and institutions act in civil circulation as independent entities on their own behalf, and not on behalf of the state.
The state, which is the direct subject of state property, bears independent responsibility for its obligations.
The state, as a subject of property legal relations, acts through the Ministry of Finance (when issuing government loans, transferring ownerless or confiscated property to the state, etc.). It is the subject of patent law when issuing patents and other documents of protection.
The Russian Federation, the constituent entities of the Russian Federation: republics, territories, regions, cities of federal significance, autonomous regions, autonomous okrugs, as well as urban, rural settlements and other municipalities act in relations regulated by civil legislation on an equal basis with other participants in these relations - citizens and legal entities (clause 1 of article 124 of the Civil Code of the Russian Federation).
The above-mentioned entities are subject to the rules defining the participation of legal entities in relations regulated by civil law, unless otherwise follows from the law or the characteristics of these entities.
Acting in civil legal relations on an equal basis with other participants - citizens and legal entities - means that:
the legal relationship arises on the basis of an agreement, and not an authoritative order of a state or municipal authority;
issues of amendment or termination of a contract are resolved by agreement of the parties, and not on the basis of a unilateral expression of the will of an authority;
possible disputes in connection with the conclusion and execution of the contract are considered in court rather than in administrative proceedings;
the state or municipality bears responsibility under civil law for violations of obligations, subjective rights of creditors and victims;
the state and municipalities do not have any advantages or privileges compared to other subjects of civil law (in terms of limitation periods, the possibility of property vindication, etc.).
The property basis for the activities of public legal entities is state (federal and federal subjects) and municipal property (Articles 214, 215 of the Civil Code).
On behalf of the Russian Federation and the constituent entities of the Russian Federation, by their actions they can acquire and exercise property and personal non-property rights and obligations, and act in court, public authorities within the framework of their competence established by acts defining the status of these bodies (clause 1 of Article 125 of the Civil Code of the Russian Federation) .
On behalf of municipalities, by their actions they can acquire and exercise the rights and obligations specified in paragraph 1 of Art. 125 of the Civil Code of the Russian Federation, local government bodies within the framework of their competence established by acts defining the status of these bodies.
In cases and in the manner provided for by federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation, normative acts of constituent entities of the Russian Federation and municipalities, on their special instructions, state bodies, local government bodies, as well as legal entities and citizens.
The Russian Federation, a subject of the Russian Federation, a municipal entity are liable for their obligations with property owned by them, except for property that is assigned to legal entities created by them with the right of economic management or operational management, as well as property that can only be located in state or municipal property.
Foreclosure of land and other natural resources that are in state or municipal ownership is permitted in cases provided for by law (Clause 1 of Article 126 of the Civil Code of the Russian Federation).
Legal entities created by the Russian Federation, constituent entities of the Russian Federation, and municipalities are not liable for their obligations.
The Russian Federation, constituent entities of the Russian Federation, and municipalities are not liable for the obligations of legal entities created by them, except in cases provided for by law.
Subjects of the Russian Federation and municipalities are not liable for each other’s obligations, as well as for the obligations of the Russian Federation.
The Russian Federation has the right to assume a guarantee (guarantee) for the obligations of a constituent entity of the Russian Federation, a municipal entity or legal entity, and also these entities have the right to assume a guarantee (guarantee) for the obligations of the Russian Federation.
The specifics of the responsibility of the Russian Federation and the constituent entities of the Russian Federation in relations regulated by civil law with the participation of foreign legal entities, citizens and states are determined by the law on the immunity of the state and its property (Article 127 of the Civil Code of the Russian Federation).
54. Property and property rights: correlation of concepts. Contents and boundaries of the exercise of property rights. Legal relationship of property. Forms and types of property under Russian legislation.
It is necessary to distinguish between ownership and ownership. Property is the relationship between various subjects of civil law regarding material objects, property, things.
The owner has the following three rights (powers) in relation to his property:
possessions;
use;
orders.
The owner uses the thing (possesses, uses and disposes of it) at his own discretion. At the same time, he can remain the owner of the thing. In general, the owner has the right to perform any actions in relation to the property he owns that do not contradict the law, of course, if these actions do not violate the rights of other persons.
Along with the rights granted to the owner, the law imposes certain responsibilities on him. These include the burden of maintaining the property (paying taxes, repairing certain types of property). In addition, the owner bears the risk of accidental death or accidental damage to his property.
Ownership
The right of ownership means the possibility of physical possession of a thing, economic influence on the thing. It should be borne in mind that, in addition to the owners, the legal owners of things can be persons who own real estate under a contract, for example, by virtue of a lease agreement.
Right of use
The right of use is the right to extract the useful properties of a thing through its exploitation and use. During the process of use, the property is either completely consumed or worn out (depreciated). The right of use is closely related to the rights of ownership, since, as a general rule, one can only use property by owning it.
The rights of possession and use may belong not only to the owner, but also to other persons who have received these powers from the owner.
Right of disposal
The right of disposal is understood as the right to determine the legal fate of a thing (sell, donate, lease).
The right of disposal is exercised only by the owner or other persons, but only on his direct instructions.
Various categories of owners have the right of ownership: citizens and private legal entities, the Russian Federation, constituent entities of the Russian Federation, municipal organizations, public organizations, foreign citizens and states, international organizations.
Depending on whether the property belongs to the owner of one category or another, the rights of the owner are defined by law more broadly or narrowly.
The limits of the exercise of property rights must be understood as those boundaries that the legislator has normatively established on the scope of free actions to own, use and dispose of the owner’s property. There are some regulatory restrictions on the actions of the owner, which are introduced in the interests of respecting the rights, protecting the health and legitimate interests of other persons, protecting the environment, protecting morality, the constitutional order, ensuring the defense of the country and the security of the state (clause 2 of article 1, clause 2, Zst.209GK).
The legislator does not allow economic activities aimed at monopolization and unfair competition (clause 2, article 34 of the Constitution of the Russian Federation, clause 1, article 10 of the Civil Code).
The volume of property that can belong to a citizen by right of ownership is not directly limited in quantity or value by civil legislation (clause 2 of Article 213 of the Civil Code). However, at the stage of appropriation, state regulation of the amount of property that can come into the ownership of a citizen is carried out through taxation. Current legislation provides for more than 20 types of taxes levied on citizens.
The legal relationship of property comes down to the fact that the owner has the right to own, use and dispose of the property belonging to him, and all other persons (non-owners) have the obligation to refrain from interfering in the affairs of the owner.
The main importance in legal relations of property is given to the powers of the owner, i.e., his subjective right.
The Civil Code of the Russian Federation identifies the following forms of ownership permitted by law:
private property;
property of legal entities;
property of public associations and religious organizations;
state and municipal property;
property of joint ventures, foreign citizens, organizations and states.
Some types of property cannot belong to certain categories of owners.
Citizens and private commercial legal entities may own any property, with the exception of certain categories of property, which by law cannot belong to them. At the same time, the quantity and value of property owned by citizens and private commercial legal entities are not limited (with some rare exceptions).
State property in Russia is considered to be property belonging to the Russian Federation or constituent entities of the Russian Federation. It can be owned and used by these entities themselves (and then it will form the state treasury of the relevant entity) or be assigned to state enterprises and institutions.
Property owned by the right of ownership to urban and rural settlements, as well as other municipal entities, is considered municipal property. It is also assigned to the possession and use of municipal enterprises and institutions or is in the possession and use of the municipal entity itself.
Public and religious organizations have the right of ownership of their property. They can use it only to achieve the goals provided for in the constituent documents of these organizations.
State and municipal property can be transferred into the ownership of citizens and non-state legal entities (privatized) in the manner prescribed by privatization laws. In this case, the rules contained in the Civil Code of the Russian Federation on the acquisition and termination of property rights are additionally applied.
The forms of ownership existing in the Russian Federation are divided into the following types:
- state federal - natural resources included in economic circulation, means of production, information - everything that is under the jurisdiction and disposal of the state and under its responsibility;
- state regional - all the same, transferred to the subjects of the Federation;
- municipal property under the jurisdiction of local authorities;
- private;
- public organizations.
Based on numerical characteristics, property is divided into the following types:
- individual (personal or private);
- group;
- public
Currently, the concept of contract content has two interpretations: traditional and non-traditional.
The conditions include: subject, object, contract price, term and place, liability for non-fulfillment or improper performance of the contract.
The conditions may be determined by the parties, by law or by business customs.
Types of contract terms:
essential - conditions on which the parties need to reach an agreement (otherwise the contract will be considered invalid);
ordinary, not requiring the consent of the parties;
accidental – conditions that are not typical for a contract of this type.
Essential conditions:
conditions on the subject of the contract (the subject of the contract is what the contract is aimed at. For example, in a sales contract, the subject of the contract will be the thing being sold);
conditions specified in the law;
conditions on which an agreement must be reached between the parties at the request of one of them.
Each type of contract has its own combination of essential conditions. For example, in a work contract, such conditions include: the subject, the price of the contract and the deadline for delivery of the subject of the contract.
The concept of “contract content” is interpreted unconventionally in the textbook “Civil Law,” parts one and two, edited by Yu.K. Tolstoy and A.P. Sergeeva. This concept denotes the totality of mutual rights and obligations of the parties to the agreement. This brings the terminology used in relation to the contract into line with the terminology used in relation to obligations.
Contract form:
an agreement may be concluded in any form established for transactions, unless the law has established a specific form for a given type of agreement;
if the parties have agreed to conclude an agreement in a certain form, compliance with such form is mandatory;
a written agreement can be concluded by drawing up one document, as well as by exchanging documents;
the written form of the contract is considered to be complied with if, in response to a written proposal to conclude a contract from the offeror, the acceptor has performed the actions provided for in the contract;
the transfer of property stipulated by the contract must be executed in compliance with the same form as the contract;
contracts can be recorded on standard forms in order to reduce the time for their execution;
Some contracts concluded in written or notarial form are subject to mandatory state registration (for example, real estate sales transactions).
Interpretation of a contract is an understanding of its actual meaning and content.
The need for interpretation arises due to the fact that often contractual provisions (norms) are too general and insufficiently defined. This makes it difficult to implement them in a particular situation. Interpretation must also be resorted to when there is uncertainty, ambiguity or ambiguity (or polysemy) of words, terms and expressions or inconsistency of some provisions with others, their inconsistency. When interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of a contract term, if it is unclear, is established by comparison with other terms and the meaning of the contract as a whole.
If the rules contained in part one of this article do not allow determining the content of the contract, the actual common will of the parties must be clarified, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including negotiations and correspondence preceding the contract, the practice established in the mutual relations of the parties, business customs, and subsequent behavior of the parties.
56. Parties and participants of the obligation. Third parties in obligation. Plurality of persons in an obligation. Features of equity and joint obligations.
The parties to the obligation are the creditor and the debtor.
Debtor is a person who is obliged to perform a certain action in favor of another person or persons (creditors) or to refrain from performing it.
The creditor is the person in whose favor the obligation is fulfilled.
Relations between the parties to the obligation and third parties are regulated by civil law.
One or more persons may act as one of the parties to the obligation. An obligation does not create obligations for persons not participating in it as parties, that is, for third parties, however, in cases provided for by law, agreement of the parties or any other legal acts, an obligation may create rights for third parties in relation to one or both parties to the obligation. Third parties who are usually neither debtors nor creditors in this obligation may be associated with the main subjects of the obligation (with the creditor or with the debtor, or with both at the same time). Obligations with the participation of third parties constitute a special type of obligations in terms of their subject composition.
These include:
· recourse obligations (to transfer the fulfilled debt to a third party);
· obligations in favor of a third party (and not the creditor);
· obligations performed (for debtors) by third parties.
In addition to the debtor and creditor, other entities - third parties - may also participate in the obligation. Thus, as a general rule, the debtor can assign the fulfillment of an obligation to a third party, and the creditor is obliged to accept such fulfillment. There are obligations in favor of third parties (for example, a bank deposit in favor of a third party).
An obligation cannot create obligations for third parties.
An indication that, as a rule, two parties participate in an obligation does not mean that the parties to the obligation in all cases are necessarily two persons. There are obligations with multiple persons (three or more participants).
Plurality can be on the side of the creditor (active plurality) and on the side of the debtor (passive plurality). There is also mixed plurality (in an obligation there are several creditors (multiplicity on the side of the creditor) and several debtors (multiplicity on the side of the debtor).
If there are multiple persons, the obligation may be shared or joint.
In a shared obligation, each creditor has the right to demand fulfillment of the obligation in a certain share, and each debtor is obliged to fulfill the obligation in a certain share. The shares are assumed to be equal, unless otherwise follows from the law, other legal acts or terms of the obligation.
Obligations with multiple persons are, as a general rule, equity obligations.
The essence of a joint and several obligation is that until the obligation is fully fulfilled, any of the joint and several debtors is considered obliged to fulfill it; any of the joint creditors has the right to demand performance.
Joint and several obligations arise if it is
Provided for by the contract;
Established by law (in case of indivisibility of the subject of the obligation, in case of joint infliction of harm, etc.).
If we mean a joint obligation with passive plurality, then the law speaks of joint obligation or liability (Articles 322-325). When we are talking about a solidary obligation with active plurality - about a solidary demand.
The creditor has the right to demand the fulfillment of a joint and several obligation both from all debtors jointly and from any of them separately, both in full and in part of the debt. Fulfillment of an obligation by one of the debtors in full terminates the obligation to the creditor. At the same time, an obligation arises between this debtor and his co-debtors.
The debtor who fulfills the obligation becomes a creditor. Such an obligation, as already mentioned, is called recourse. By virtue of a recourse obligation, one person who has fulfilled a duty for another has the right to demand compensation from this person for the costs incurred. In this case, the essence of the recourse obligation is as follows: the debtor who has fulfilled the obligation has the right to demand what has been fulfilled from the remaining debtors (co-debtors) in equal shares, minus the share falling on himself. Something else may arise from the relationship between co-debtors. What is not paid by one of the joint debtors to the debtor who has fulfilled the joint obligation falls in equal shares on the other co-debtors, including the one who fulfilled the main obligation. Something else may follow from the relationship between co-debtors.
If the claim is solidary, the debtor may fulfill the obligation to any of the co-creditors. If this does not happen, then any of the joint creditors has the right to file a claim against the debtor in full. Fulfillment of an obligation to one of the creditors entails termination of the obligation. At the same time, an obligation arises between the creditor who received the performance and other creditors. The creditor who receives the performance becomes the debtor. He must compensate what is due to other creditors in equal shares, unless otherwise follows from the relations between them.
With passive plurality of persons, there are also subsidiary obligations. Such obligations can arise only in connection with the bringing of the debtor to liability and the existence, in addition to the main debtor held liable, of an additional (subsidiary) debtor. The essence of a subsidiary obligation is that before presenting a claim to a subsidiary debtor, the creditor must present a claim to the main debtor. And only if the main debtor fails to fulfill the obligation, a claim can be brought against the subsidiary debtor. Thus, participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.
57. Retention and deposit as ways to secure obligations.
Hold- one of the types of security for obligations, consisting in the fact that the creditor of the debtor lawfully retains the thing that belongs to the debtor or is subject to transfer to a third party at the direction of the debtor, until and unless the debtor fulfills the creditor's claim for payment of such thing or costs on time, related to this item and other losses. According to a special rule of the Civil Code of the Russian Federation, foreclosure on such an item is carried out in the same way as if it were pledged. It is precisely because of the last property retention should be classified as security for obligations.
As can be seen from the definition itself retention it does not require any special agreement or documentation. The behavior of the creditor, who retains the property, is passive, and his right in relation to the debtor in this case is that he has the right to refuse to transfer the property both to the debtor and to a third party at the direction of the debtor.
The creditor, who has the thing to be transferred to the debtor or a person specified by the debtor, has the right, in the event of failure by the debtor to fulfill on time the obligation to pay for this thing or compensate the creditor for costs and other losses associated with it, to retain it until the corresponding obligation is fulfilled .
By retaining a thing, claims may also be secured, although not related to payment for the thing or reimbursement of costs for it and other losses, but arising from an obligation, the parties to which act as entrepreneurs.
The creditor may retain the thing in his possession, despite the fact that after this thing came into the creditor's possession, the rights to it were acquired by a third party.
The claims of the creditor holding the thing are satisfied from its value in the amount and manner provided for satisfying the claims secured by the pledge.
A deposit is recognized as a sum of money given by one of the contracting parties in payment of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution.
The agreement on the deposit, regardless of the amount of the deposit, must be made in writing.
In case of doubt as to whether the amount paid towards payments due from the party under the contract is a deposit, in particular due to non-compliance with the rule established by paragraph 2 of this article, this amount is considered to be paid as an advance unless proven otherwise.
Consequences of termination and failure to fulfill an obligation secured by a deposit
If the obligation is terminated before the start of its performance by agreement of the parties or due to the impossibility of performance, the deposit must be returned.
If the party who gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit.
In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.
58. Conditions for the validity of transactions. The concept and legal nature of the invalidity of a transaction. Complete and partial invalidity of the transaction. Consequences of invalidity of the transaction. The conditions for the validity of a transaction follow from its definition as a legitimate legal action of subjects of civil law, generating the legal result that they sought. That is, in order to have the quality of reality, the transaction as a whole must not contradict the law. Legality of the content of the transaction. The content of a transaction is understood as the totality of all the conditions that make up the transaction, giving rise to a certain legal result. Legality of content means compliance of the terms of the transaction with legal requirements. they should not contradict the fundamentals of law and order and morality and, in general, the general principles and meaning of civil legislation, the requirements of conscientiousness, reasonableness and justice.
The ability of the parties to complete the transaction. a person’s ability to complete a transaction cannot be reduced only to the issue of his legal personality - it is broader and also lies in the legitimacy of the actions of the participant in the transaction, that is, it presupposes that he has the right to dispose of the property that is the subject of the transaction.
If a transaction is carried out on behalf of the state by a state body, then its ability to participate in the transaction means that it has the necessary competence for this, established by the acts defining the status of this body.
Will and expression of the will of the transaction participant
The validity of the transaction presupposes the coincidence of the will and expression of the will of the participant. A discrepancy between a person’s actual desires, intentions and their external expression may serve as grounds for declaring a transaction invalid. The will must be formed freely. A person must have a clear understanding of the essence of the transaction or its individual elements and reflect actual desires and aspirations. Thus, it is necessary that there are no factors that distort this idea (misconception, deception), or create the appearance of internal will in its absence (threat, violence), otherwise there will be a so-called reproachful (defective) will, or a deal with a vice of will .
Compliance with the transaction form
The transaction must be completed in the form prescribed by law and by agreement of the parties. Failure to comply with a simple written form entails the invalidity of the transaction only in cases specifically specified in the law. Failure to comply with the notarial form required by law, and in some cases with the requirements of the law on state registration of a transaction, entails its invalidity.
The invalidity of a part of a transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without the inclusion of its invalid part.
The invalidity of a transaction means that the action performed in the form of a transaction does not have the qualities of a legal fact capable of giving rise to those legal consequences to which the will of the parties is directed. Such a transaction is an unlawful legal action and does not entail the establishment, change or termination of civil rights and obligations, except for those related to its invalidity.
As a general rule, any transaction that does not comply with legal requirements is considered invalid. This rule applies in all cases where a transaction made in violation of the requirements of the law does not fall under special rules establishing special grounds for declaring transactions invalid.
Recognition of transactions as invalid entails the annulment of rights and obligations, the implementation of which would lead to a violation of the law. Therefore, a transaction declared invalid is invalid from the moment it was completed. However, if it follows from the content of the transaction that it can only be terminated for the future, then the transaction declared invalid is terminated for the future.
The law provides for the possibility of invalidating only part of a transaction while maintaining the validity of the remaining parts. Only part of a transaction can be declared invalid if it can be assumed that the transaction would have been completed without the inclusion of the invalid part. For a multilateral transaction (agreement), such an assumption is valid if it meets the following criteria:
1. Objective criterion - assumes that the absence of part of the transaction does not prevent the recognition of the transaction completed in the rest of its part. In other words, such part of the transaction should not be considered one of its essential conditions, since in order to conclude a contract it is necessary for the parties to reach an agreement on all essential conditions. Otherwise, in the absence of agreement on at least one of them, the contract is considered unconcluded.
2. Subjective criterion - means that the parties at the time of the transaction would have agreed to complete it without including the invalid part. For a unilateral transaction, a subjective criterion is sufficient.
The law establishes various legal consequences of partially or fully executed invalid transactions, while the legal consequences are differentiated depending on the grounds for the invalidity of the transaction.
If a transaction made in violation of the law is not executed, it is simply cancelled. If a transaction declared invalid is fully or partially executed, the question arises about the property consequences of its invalidity. There are main and additional consequences.
Additional consequences of the invalidity of a transaction are a form of civil liability, namely, the obligation of the guilty party to compensate for the actual damage suffered by the other party.
The main consequences of the invalidity of a transaction are related to determining the legal fate of what the parties received under the transaction. The main property consequence of the invalidity of a transaction is restitution (from the Latin restituere - restore, compensate, return) - the return of everything received under the executed transaction. If the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when what was received is expressed in the use of property, work performed or service provided) - to reimburse its value in money, if otherwise the consequences of invalidity of the transaction are not provided for by law. If the transaction is terminated for the future, then what was received under the transaction remains with the parties, but it is not subject to further execution.
[edit]Restitution mechanism
The normative structure of restitution provides for several mechanisms for the implementation of the rights and obligations of the parties to an invalid transaction to return the property that served as the subject of its execution.
1. Depending on the legal regime of the property:
A mechanism for the return of individually defined items (restitution of possession).
A mechanism for returning things defined by generic characteristics, as well as money and securities to bearer, and providing monetary compensation if it is impossible to return what was received in kind, including when what was received is expressed in the use of property, work performed or service provided (compensatory restitution).
2. Depending on the presence of intentional guilt:
A mechanism for returning both parties to their original property status (bilateral restitution).
A mechanism for returning one party to the original property status (unilateral restitution).
Non-admission of restitutiona) If both parties acted intentionally and both fulfilled the transaction, everything performed by them is recovered as the income of the state.
b) If both parties acted intentionally, but only one of them performed the transaction, everything that was received under the transaction, and everything that the party that received the execution had to transfer to the other party for the purpose of execution, is collected as state income.
c) If only one party acted intentionally, everything received by it under the transaction must be returned to the other party (unilateral restitution), while what the other party received or owed to it under the transaction from the guilty party is recovered as state income.
59. Form and state registration of transactions.
Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
The form of a transaction is the external expression of the will of its participants.
Transactions are made orally or in writing (simple or notarial).
A transaction that can be concluded orally is considered completed even if the person’s behavior makes clear his will to complete the transaction.
Silence is recognized as an expression of the will to complete a transaction in cases provided for by law or agreement of the parties.
A transaction for which a written (simple or notarial) form is not established by law or agreement of the parties can be concluded orally.
Unless otherwise established by agreement of the parties, all transactions executed upon their very conclusion may be made orally.
Transactions in pursuance of an agreement concluded in writing may, by agreement of the parties, be concluded orally.
A transaction in writing must be concluded by drawing up a document expressing its contents and signed by the person or persons entering into the transaction, or their duly authorized persons.
(see text in the previous edition)
Transactions concluded in simple written form.
1. Must be made in simple written form, with the exception of transactions requiring notarization:
1) transactions of legal entities among themselves and with citizens;
2) transactions of citizens among themselves for an amount exceeding at least ten times the minimum wage established by law, and in cases provided for by law - regardless of the amount of the transaction.
Failure to comply with the simple written form of a transaction deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence.
In cases expressly stated in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.
Failure to comply with a simple written form entails the invalidity of the transaction.
Notarization of a transaction is carried out by making a certification inscription on the document by a notary or other official who has the right to perform such a notarial act.
State registration of transactions
State registration of a transaction is a means of ensuring public reliability of information about the existence or absence of a transaction, the civil consequences of which occur only after state registration. That is, if the law connects the validity of a transaction with the need for its state registration, then the transaction itself, even if completed in the proper form, does not give rise to any civil legal consequences.
Transactions are subject to state registration:
a) if the object of the transaction is real estate;
b) if the object of the transaction is certain types of movable property (for example, museum objects and museum collections);
c) in other cases established by law (for example, a license agreement). The consequence of failure to comply with the state registration requirement is the nullity of the transaction
The consequences of failure to comply with the notarial form of the transaction and the requirement for its registration entail its invalidity. Such a transaction is considered void.
The structure of the Russian state (state) is the Russian Federation, which includes constituent entities of the Russian Federation - republics, territories, regions, federal cities, autonomous regions, autonomous districts and municipalities - urban, rural settlements, etc.
The state as a subject of civil legal relations has the following features: organizational unity, separate property, responsibility for its obligations, the ability for constituent entities of the Russian Federation and municipalities to act on their own behalf when acquiring property and personal non-property rights in court. The state is subject to the principle of equality with other entities, despite the fact that the state has power.
The state exercises its rights and obligations at the federal level with the help of the Federal Assembly, the President, the Government, ministries and departments, etc. Legislative assemblies, regional dumas, presidents, governments, ministries and departments, etc. can act on behalf of the constituent entities of the Russian Federation. municipalities, the right to speak is granted to representative bodies of local self-government. Legal entities and citizens can act on behalf of the state on special instructions from the state. The scope of participation of the Russian Federation, its constituent entities, and municipalities is determined by the legal capacity of the latter, which is reflected in the law and is special.
Features of the state's responsibility for its obligations:
- a) the Russian Federation, its constituent entities, and municipalities bear independent property liability, that is, they are not liable for the obligations of each other, as well as legal entities created by them. However, they may be held liable for the insolvency of enterprises of which they are the founder, resulting from the execution of incompetent instructions of the founder;
- b) the state bears subsidiary liability for the obligations of the institutions it created if the latter lack their own funds if the state is the owner of the property assigned to them;
- c) the Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise in the event of insufficiency of its property;
- d) the Russian Federation, its constituent entities and municipalities are liable for non-contractual obligations in cases of damage caused by illegal actions of their bodies;
- e) the objects with which the state can be liable for its obligations are limited (it is impossible to respond with property assigned to legal entities created by it on the right of economic management or the right of operational management).
The state has judicial immunity: liability in relations with foreign partners is limited: the latter cannot bring a lawsuit against it for improper fulfillment of obligations without the prior consent of the competent authorities of the state, reflected in an international treaty. The rules governing the participation of legal entities in relations regulated by civil law are applied to the state, unless otherwise follows from the law or its features.
The Russian Federation, along with other subjects of civil law, has rights and obligations common to all (it can own, use, dispose of property belonging to it, act as a party to civil contracts, and defend its rights in court). At the same time, the civil legal status of the state contains a number of features:
- 1. Availability of legislative powers (the state itself establishes the procedure and rules by which participants in civil law relations interact);
- 2. The state has jurisdiction over courts and arbitration courts as bodies for resolving most civil legal disputes;
- 3. The presence of special bodies that manage and dispose of state property on its behalf (these bodies include state property management committees and property funds);
- 4. Only the state can legally possess a number of things excluded from circulation (nuclear materials, military weapons, items of historical value).
- 3. Property and ownership
The most important institution of civil law is the right of property.
In an objective sense, it is a set of norms regulating social relations, the essence of which is the ownership of material goods by participants in civil legal relations.
The right of ownership in the subjective sense is the ability of a person to own, use and dispose of the property belonging to him at his own discretion. In Russian law, the owner traditionally had three powers: possession, use and disposal.
Possession is the actual possession of a thing, the ability to directly influence it (touch, feel).
Use - extracting the useful properties of a thing (a useful property of a car is the ability to move quickly in it, therefore a car on the road under your control is use).
Disposition is the power to determine the legal fate of a thing (by donating a car, you dispose of it, as a result of which it receives a new owner).
The owner exercises all these powers at his own discretion, without asking permission from other participants in civil transactions, and only in rare cases is he limited by law or contract. Other persons, not being owners, can also have these powers (as a rule, not all of the three, but sometimes even all three together). However, their implementation is directly related to the will and consent of the owner.
The "good" of property - the ability to satisfy the owner's needs by "extracting" the useful properties of a particular property - is inextricably linked with the "burden" - the owner's responsibility to maintain the things he owns. Usually, for the sake of the former, the owner is willing to put up with the necessary costs (in this case, an alarm is installed in the car, and repairs are made in the old apartment). But sometimes the “burden” outweighs the “good” (then collections of paintings are bequeathed to the state, and a talking parrot, tired of its repertoire, is given to a best friend).
The burden of maintenance means not only the owner’s concern for the functionality and cleanliness of his property, but also the need to protect his property from attacks by other persons. Of course, the very first and very natural reaction of any owner to an attempt to steal a car will be the desire to “...break off the arms and legs...” of this lover of easy money or, in scientific language, to exercise the right to actual protection of property.
But what if Schwarzenegger, armed with a pistol, got behind the wheel or the property doesn’t disappear anywhere at all, but you can’t use it (let’s say, they dug a hole in front of the garage that you can’t move over with a car, let alone a tank).
In these cases, civil law remedies for property protection come into play.
The owner, who has lost an item against his will, has the right at any time to bring a vindication claim against the person who has this item with a demand to return the unlawfully retained property. If someone abuses their right to dig up the roadway wherever they get (they especially suffer from this ailment our construction organizations), then a negative claim can be brought against this entity - a demand for the elimination of Obstacles to the exercise of the rights of the owner. Just a few years ago, under the conditions of the socialist system, a strictly defined range of objects could be owned by citizens, and all means of industrial production and the overwhelming majority part of the material wealth was concentrated in the hands of the state. Therefore, the right of private property for a long time meant in our country the opposite of state property and collective farm-cooperative property (private property was everything that did not belong to the state or a collective entity, such as collective farms). Today, the quantity and value of property property owned by citizens and non-state legal entities is practically not limited, however, in order to protect the rights and interests of other persons, such restrictions may be established by law.
Consequently, the opposition between private and state property rarely arises, mainly when referring to seized or restricted items that belong exclusively to the state (weapons, radioactive substances, etc.) or special ways of acquiring ownership rights (taxes, confiscation). Otherwise, the legal regime of state and private property is the same.
Among the grounds for the emergence of property rights, initial ones are distinguished; the right of ownership arises regardless of the previous right to a thing (the will of the previous owner), for example, the creation of a new thing or a discovery. Derivative methods are associated with the will of the previous owner; they are the result of the disposal of a thing (transfer of property under an agreement or during inheritance under a will).
Privatization has recently played a special role among the methods of acquiring private property rights. Privatization is the transfer of state or municipal property into the ownership of citizens and non-state legal entities in the manner determined by special legal acts. Privatization affected a wide range of objects, both in the production sector (plants, factories) and in the service sector (shops, canteens, dry cleaners). Most often, privatization is carried out by selling an object (at auction, by competition), when the property is transferred to the new owner in its entirety or by corporatization (a state-owned enterprise is transformed into a joint-stock company, and the issued shares are sold in “packages” or separately to a significant circle of people. Privatization is also possible through the sale of property owned by bankrupt enterprises.
Privatization of housing - i.e., free transfer into the ownership of citizens on a voluntary basis of residential premises occupied by them in state and municipal housing stock - is carried out in a special manner by the local administration, enterprise, institution in whose jurisdiction the corresponding residential premises are located.
A citizen has the right to free purchase of housing through privatization once.