Types of illegal ownership of property rights. Ways to protect real rights

The principle of equality of all forms of ownership and equal protection of the rights of all owners is enshrined in civil law. It is customary to allocate ways to protect property rights:

· Committable legal;

· Related.

The first is made by the owner to the violator of his right, with whom the owner consists or consisted in legal relations, i.e., violation of the property rights was the result of non-fulfillment or improper fulfillment of the obligation (the seller evades the transfer of a thing to the buyer; the keeper does not return the thing to the batch and so on. ).

While the second is aware-legal - these are the claims of the owner to the violator of his right, with whom the owner has not consisted and is not in legal relations, about the object of ownership. These claims are called respectively: WINDICATION AND NEBATOR.

WINDICATIONSHIP associated with deprivation of the right of ownership. This is the claim of the owner of the withdrawal of a thing from someone else's, illegal possession (Art. 301 of the Civil Code of the Russian Federation). The conditions that need to be observed in their presentation:

1. They can only be declared for individual-specific things that are preserved in kind.

2. Refine your property The owner is entitled only if another person owns them illegally. In the presence of legal grounds for consolidating property for a legal entity on the right of economic management, operational management, other limited real affairs, the use of property on the basis of a lease agreement, urgent compensable use, etc. Relations of its owner is not allowed by the owner.

3. Even in those cases where the appropriate property is demanded by the owner of the person whose possession is illegal (festivally), such a requirement is subject to unconditional satisfaction (naturally, when complying with the first two conditions), only with respect to the unfair acquirer.

In conscientious, only the acquirer who acquired it was reimbursed and did not know and could not know that the person who realized his property had no right to alienate him. At the conscientious acquirer, property can be extermined by the owner only in exceptional cases when the property is lost by the owner or the person to whom it is transferred to the owner of possession, or they have been abducted or dropped from their own way in addition to their will. The lack of these circumstances does not allow the owner to refine the property from a bona fide acquirer, since the behavior of that from a legal point of view should be recognized as impeccable. Regarding such types of property as money and presenter securities, a special rule has been established, according to which they cannot be exterminated by the owner at the conscientious acquirer under any circumstances.

Negator lawsuit associated with violation of the right to use. This is the claim for the elimination of any violations of his rights not related to the deprivation of ownership (Art. 304 of the Civil Code of the Russian Federation).

The lawsuit is satisfied if the defendant committed illegal actions leading to violation of ownership. A negative lawsuit is a requirement to eliminate obstacles in the implementation of property rights or other real rights not related to the removal of property from the owner (legal owner).

It should be noted the peculiarities of a negative claim that distinguish it from the WINDICATION Claim.

1. The owner or other title owner, turning to court, retains property in its possession. Violation of the right of the owner is that he will reveal obstacles to using them.

2. A prerequisite for the presentation of a negative claim is the violation of the rights of the owner or other title owner from another person. In other words, the actions of the offender must be unlawful (i.e. illegal). If the obstacle in the implementation of property rights was created by legitimate actions, the owner cannot use a negative claim for protecting its legitimate interests.

3. The essence of the requirement for a negative claim is the elimination of a decorated violation, which remains for the time of the claim. Therefore, the negative lawsuit is not subject to the action of the limitation and can be presented at any time while the violation is preserved. In cases where it comes to protecting the right of legitimate ownership, the owner has the right to use both the WINDICATION and non-brass claims and against the owner of the property.

Not in all cases, violated law or other limited real law can be protected by the specified methods. The choice remains for the face whose right is broken. The criteria for this choice can be: the nature of the violation; the subject that made a violation; The implications envisaged by the legislation of the application of one way or another method of protecting violated law. Other ways to protect property rights include:

1. A claim for recognition of the ownership of economic management, operational management, etc. - as an effective way to protect in situations, when another person encroaches this right or disputes it, and the right-ending documents of the owner are indisputable.

2. The lawsuit on the restoration of the situation that existed before the violation of the right of ownership. It can be applied by the owner, in particular, in cases where his property is illegally held by another person, and the protection of violated right by presenting a WINDICATION Claim for any reason for a co6 formation is impossible or inexpex.

4.5 project Conceptsdevelopment of the legislation on the real law ....

In project Conceptsthe development of the legislation on the real law is proposed to a completely new systematics of the legislation on the real law. In accordance with the tradition of the Pandek system countries, it is proposed to allocate in the legislation on the real law overall and special parts.

Of particular interest is the problem of strengthening civil rights through state registration. In particular, the current legislation provides for the following types of registered property rights:

a) the rights to real estate, their restrictions, the emergence, transition and termination (paragraph 1 of Article 131 of the Civil Code of the Russian Federation). The obligation of state registration of rights to real estate is provided for by law;

b) the rights to movable property. As a general rule, state registration of rights to movable property is not required. The rights to movable property are subject to state registration only in cases directly provided for in the law (paragraph 2 of Article 130 of the Civil Code of the Russian Federation);

c) the rights to the results of intellectual activity and means of individualization (paragraph 2 of Article 1232 of the Civil Code);

d) rights to shares in a limited liability company.

Registration is currently subject to not only property rights (real estate rights, exclusive rights), but also some transactions with specified objects. Thus, when performing some transactions, "double" registration is carried out: both rights and transactions. In the Civil Code of the Russian Federation, and after him, the law on registration of rights is quite uniquely connected by two historically established in the world. registration systems:

1) registration of documents (legal title, transactions);

2) Registration of rights.

The system of any registration is based on a number of principles:

ü the principle of certainty;

ü the principle of consent to making a record;

ü Circle of rights subject to registration;

ü Principle of checking the legality of registration grounds;

ü Public confidence in the registry;

ü Assumption of the credibility of the registry;

ü Principle of application;

ü Principle of recording on a person's application;

Topic 5. Liabilities in civil
right and responsibility for their violation (2009)

Send your good work in the knowledge base is simple. Use the form below

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Posted by http://www.allbest.ru/

Introduction

2. WINDICATION SECRET

2.2 Application of property at a conscientious acquirer

2.3 PROBLEMS OF REAL ESTATE WINDICATION

Conclusion

LIST OF REFERENCES

Introduction

Relevance of the research topic. The economic relations of the property form the basis of any society, and the legal regulation by means of the system is fixed, regulates and protects these relations.

In the conditions of modern Russia, property is of exceptional importance due to the fact that it is the basis of political and economic transformations, as well as an indispensable condition for the construction of a legal state. That is why the protection of existing property relations is the most important task of any legal system. The ownership is the fundamental Institute of the Russian Legal System.

Civil Code Russian Federation It is designed in such a way that the issues of ownership occupy the central position in it. Accordingly, the methods of protection through which the violated ownership is protected and is restored, dominates law enforcement practice. Methods for the protection and restoration of violated property rights are different and the use of a particular method depends on the nature of the violation of the right.

In law enforcement practice and the field of view of legal science, there were previously unknown topical theoretical and practical problems of competition lawsuits on the Wine Cakes and Restitution, the blessings of the acquirer under the Wine Claims and Restitution, on the subject of restitution, the relevant legal methods for the protection of the pledgee rights and others.

The relevance of the problem of protecting things has grown significantly in recent years due to the expansion of the private sector in civil circulation. This circumstance led to the collision of the interests of numerous owners, which, to a certain extent, were caused by the consolidation of the prostitutes began in Russian civil law, the strengthening of state intervention in private affairs, crime growth, as well as low performance efficiency court decisions According to relevant laws.

He got the spread of the practice of unlawful seizures of property objects. Illegal activity officialswho come into collusion with minority shareholders, the use of gaps in the mechanism of legal regulation of property relations also allows the state to seize property from citizens based on articles of the Civil Code of the Russian Federation on the forced alienation of private property facilities for state and municipal needs. In this case, acute problems arise to establish criteria for determining the amount of compensation for the identified objects of ownership, or the establishment of the very fact of the availability of state or municipal needs.

The right of ownership in the system of existing civil rights occupies the central, most significant position, as well as the protection methods that are protected and restored by the violated ownership.

Thus, a detailed study of the theory and practice of protection of property rights is currently highly relevant and necessary.

The degree of the development of the topic. The theoretical basis of the study is the fundamental works of Soviet and Russian specialists in the theory of law, civil law, as well as economic science, in particular: L.I. Abalkina, M.M. Agarkova, G.N. Amphitheatova, A.N. Arzamasseva, A.B. Benedictova, M.I. Braginsky, S.N. Brother, V.V. Vitryansky, D.M. Genkina, V.P. Gribanova, N.D. Egorova, O.S. Ioffe, A.Yu. Kabalekina, Yu.K. Kalmykova, A.G. Calpina, A.B. Karasa, S.M. Koreleva, O.A. Krasavchikova, P.V. Kraschinnikova, V.N. Litovkina, N.S. Maleina, A.I. Maslyaeva, V.P. Mozolaina, I.B. Novitsky, V.A. Rakhmilovich, A.A. Rubanova, O.N. Sadikova, A.P. Sergeeva, K.I. Skolovsky, E.A. Sukhanova, Yu.K. Tolstoy, P.O. Halfina, B.B. Cherepakhina, V.F. Chigira, A.E. Sherstobitova, T.B. Puppy, A.M. Erdelevsky, K.B. Yaroshenko et al.

Separate aspects of protection of property rights were considered in the works of H.A. Barinova, V.A. Belova, B.M. Gonhano, T.V. Derdygina, V.A. Dozorzva, V.P. Kamyshansky, N.I. Kirilova, A.B. Konovalova, A.B. Kopylova, V.V. Lazareva, V.A. Lapach, V.A. Letyayev, O.A. Mineeva, D.V. Murzina, V.A. Plenev, D.O. Tuza, Z.I. Tsybulenko, A.E. Chernomorets and others.

Of considerable interest are the work of Russian scientists, whose studies make it possible to study the trends and patterns of development of the development of relations analyzed in the pre-revolutionary period: E.V. Vaskovsky, M.F. Vladimirsky-Budanova, Yu.S. Gambarova, K.D. Cavelin, A.I. Kaminka, D.I. Meyer, S.A. Muromtseva, L.I. Petrazhitsky, K.P. Victoryosseva, p.p. Citovich, G.F. Shershevich.

The works of these authors contain the analysis of many problems under consideration. Nevertheless, despite the many scientific papers both in Russia and abroad devoted to the analysis of property rights and its protection, at present, taking into account the changes occurring, both in the regulatory legal regulation and law enforcement There was a need for a study of a number of new aspects in the matter of civil-legal protection of ownership.

The object of the study is a WINDICATION Claim How Civil

The subject of research is the norms of Russian civil legislation, judicial practice on legal regulation of relations aimed at protecting ownership of civil laws.

The goal of the course work is a comprehensive study of theoretical and practical problems of legal regulation and law enforcement practices on the issues of protection of property rights.

To achieve this goal, the following tasks were delivered:

Consider the concept of ownership as an object of civil law protection;

Analyze the concept and ratio of civil-legal protection and protection of ownership;

Characterize the system of civil laws for the protection of property rights and legitimate interests of the owner;

Investigate the legal nature of real-acting protection rights;

To evaluate the obligations and other non-real ways to protect the right of ownership;

Consider the protection methods aimed at protecting the interests of the owner when the right of ownership of the reasons provided for in the law;

Explore the question of the ratio of imaging, restitution and contingency requirements in the protection of ownership;

Analyze problem issuesarising from the use of restitution in law enforcement practice;

Identify the gaps of legislation regulating the protection of ownership; Develop a theoretical substantiation to further improve legislation regulating the protection of property rights.

The methodological basis of the study is the general scientific methods of knowledge of public phenomena using special and private methods: historical, system-structural analysis, comparative law, formal legal, structural and functional and others.

1. General characteristics of ways to protect property rights

1.1 The concept of protection of property rights

The Constitution of the Russian Federation enshrines the main legal principles Regulation of property relations. Article 8 of Chapter 1 of the Constitution of the Russian Federation establishes the principle of equal recognition and protection equally to the private, state, municipal and other forms of ownership.

Judicial protection of ownership should be carried out on the basis of these principles and norms of the Constitution of the Russian Federation and the norms of international law Judicial protection of ownership: a practical manual / ed. V.M. Zhukova.- M.: Statute, 2011.- 224 s ..

Legal regulation (right) property appears and persists primarily as a system of norms that enshrine, regulating and protecting these relations of Sukhanov, E.A. Course lectures on civil law. Special part / E.A. Sukhanov. - M.: Beck, 2012.- P. 208 .. Therefore, the importance of the protection of existing relationships in any legal system is.

The legal framework for the protection of property relations is envisaged by most of the branches of law: government law establishing general principles for regulating affiliation and protection of ownership; criminal and administrative law that is responsible for unlawful encroachment on someone else's property; labor law regulating, for example, the material responsibility of workers for the property damage caused by the employer; Land and family law covering special relations of the affiliation of material benefits, and others, including civil law.

In this case, there is no reservation in the use of the term "guard" instead of "protection". In science civil law distinguish the protection of property relations and protection of ownership. However, a number of authors do not distinguish between these concepts, or others purposefully identify them, considering how synonyms (for example, Avanesov).

In general, supporters of the traditional approach are solidiner in determining what is understood under these terms. Civil law protection of property rights and other real rights is presented as a set of civil law standards that ensure the normal and unimpeded development of the relations under consideration in the interests of the owner and society as a whole. And civil legal protection of real rights, in turn, sees as a narrower concept, which is a set of civil laws, which apply to violators of relations (and only in cases of violations) issued with the help of real rights, that is, are varieties of methods Protection of civil rights.

Such a relationship of these concepts by volume is based on the fact that during the protection of ownership of various norms and institutions (including civil law) play different roles:

1. Some of them protect the property relationship through their recognition, thereby spreading the law to them.

2. Others provide the necessary conditions for the realization of real rights and in this sense are also important for their protection. There is an example of the rules about the state registration of real estate rights.

3. And only the third species establishes adverse effects for violators of real rights, that is, directly protect them from unlawful encroachments.

Traditionally, civil law protection (protection in a narrow sense) in the Civil Code of the Russian Federation is dedicated to an independent chapter.

At least indirectly in one way or another, almost all institutions of civil law provide full assistance in the protection of the rights of the owner.

Ownership is protected by the norms of almost all branches of law: criminal, establishing responsibility for property encroachments for property; administrative, punishing small misconducts of this kind; labor regulatory, for example, the material liability of the employee for the harm caused by the property of the employer; land; family; Civilian.

In general, the norms of civil law, along with other industries, carry out protection of ownership. And within the framework of this combination of the norms of civil law, protecting property relations, a group of special means of civil law is allocated for the direct protection of property rights and other real rights.

IN general Methods for their protection are fixed in Art. 12 Civil Code of the Russian Federation.

In general, the right to protection can be defined as the possibility of applying law enforcement measures to restore its violated or disputed law. Legal qualifications of this opportunity causes disputes in the literature. The most convincing is the opinion, in accordance with which the right to defense is an independent subjective right of civil law: a textbook. T. 3. / Ed. A.P. Sergeev, Yu.K. Tolstoy. - 5th ed., Pererab. and additional. - M.: Prospekt, 2012.- p. 243 ..

This position is based on the following arguments. Like any other subjective right, the right to defense includes, on the one hand, the possibility of committing a management person's own positive actions and, on the other hand, the possibility of a certain behavior from the obligious person.

The right to own actions in this case includes such measures of impact on the violator, as, for example, self-defense, necessary defense, etc. The right of certain behavior from the obligious person covers mainly the measures applied to the violator of the competent government agencies, which the victim addresses the protection of violated rights.

Protection of subjective civil rights and protected interests is carried out in the manner prescribed by law, that is, through the use of appropriate form, means and methods of protection.

Under the form of protection in science is a complex of internally agreed organizational measures to protect subjective rights and protected interests.

There are two main forms of protection - jurisdictional and non-revocional. The jurisdictional form of protection is the activities of state bodies aimed at protecting violated or contested subjective rights.

As a general rule, the protection of civil rights (including ownership) is carried out in judicial order. The judiciary exercise the courts of common competence, arbitration and arbitration courts.

As a means of judicial protection of civil rights, a claim is a claim, that is, a request for the administration of justice, converted to the court, on the one hand, and referring to the defendant material and legal requirement to fulfill the obligations lying on it or recognizing the availability or lack of legal relations, on the other hand. The judicial or order of protection is applied in all cases except those that are specifically established by law.

The neurisdictational form of protection is a self-defense of civil rights, such a way to protect the right, enshrined in Art. 12 Civil Code The Russian Federation and is the actions of citizens and organizations to protect civil rights and protected by the Law of Interests, which they are committed independently, without circulation for help from authorized to state authorities.

Protection of civil rights and protected interests is ensured by the use of protection methods provided by the law.

Article 12 of the Civil Code of the Russian Federation lists the following ways to protect civil rights:

Recognition of law;

Restoration of the situation that existed before violation of the right and suppression of actions that violates the right or creating a threat to its violation;

Recognition of an arbitrary transaction and the use of the consequences of its invalidity, the use of the consequences of the invalidity of a negligible transaction;

Recognition of invalid the state of the state body or body local governments;

Self-defense law;

Coercion to the performance of duties in nature;

Damages;

Penalty charge;

Compensation of moral harm;

Termination or change of legal relationship;

Non-suction by the court of an act of the state body or the body of local self-government contrary to the law.

The legal literature draws attention to the fact that the list of protection methods submitted by law is not a logical, scientifically based system of protection methods, but a random set of various measures of measures, the objectives of protection, duties of the court Ermolov, O.N. Intangible benefits And their defense: the dissertation author's abstract / O.N. Yermolov. - Saratov, 2008.- S. 77 ..

So, k.b. Yaroshenko notes that the restoration of the situation existing before the violation of the law is the goal, and not the way to protect Yaroshenko, K.B. Improving civil law forms to protect personal non-property rights of citizens in the Soviet law: the dissertation author's abstract / KB Yaroshenko.- M., 2002.- S. 81-82 ..

Despite this, it is indicated that consolidating in law even in such an imperfect form of the most common protection methods is a useful measure, since the victims are focused on the possible toolkit of means of protecting their violated rights.

Each of the methods listed in the above mention can be applied separately or together with other methods judicial protection, including ownership.

The choice of a method for protecting violated rights belongs exclusively to the plaintiff.

The list of civil rights protection methods is not exhaustive. It is allowed to use other methods of protection, except those named in Art. 12 Civil Code of the Russian Federation, if there is a direct indication of the law on this.

Thus, on the one hand, the protection of real rights is an integral part of the wider concept of the protection of real rights, and on the other, this is part of the protection of all civil rights, which is carried out by the general methods (measures) of the protection of civil rights listed in Art. 12 of the Civil Code, including special (real-legal) methods.

At the same time, the peculiarities of the protected rights have direct impact on the design of protective relations, and therefore, in almost every institution of civil law, special standards are provided for the protection of the relevant rights.

Of course, the right of ownership and other real rights are protected by the general ways of protecting civil rights, but the meaning of the allocation of special measures is due to the colossal value and the role of such phenomena, as property and the right to it, as well as a number of features characterizing and distinguish between the right from the massive Civil rights.

The most weighty in the system of existing civil rights is the right of ownership. The current Civil Code of the Russian Federation is designed in such a way that the issues of property rights occupy the central and most significant position in it. Accordingly, the methods of protection, through which protected and restores the violated ownership, dominated in the law enforcement practice of Skvortsov, O.Yu. Related claims in forensic arbitration / O.Yu. Skvortsov. - M.: CJSC "Business School" Intel-Synthesis ", 2013.- S. 5 ..

In science, civil law protection is represented as a system of interrelated, interacting methods, each of which occupies its place, has its meaning and specific features in protecting the rights and interests of the owner.

The literature proposes the following definition of civil law protection. Under the civil law protection of ownership and other things is understood as a combination of funds provided for by civil laws applied in connection with the violations committed against these rights and aimed at restoring or protecting the property interests of their owners.

It is impossible to agree with the definition of civil law protection proposed by the authors, where it is indicated that the funds are used to "restore or protect" of interests. It seems to us that the restoration of both rights and interests is either one of the ways to protect these rights or interests (as presented in Art. 12 of the Civil Code of the Russian Federation), or is generally a goal, and not a way to protect, according to some authors. Therefore, such a wording seems not entirely correct.

Considering all of the above, we define the civil defense of property rights and other things as follows.

Civil law protection of ownership and other real rights is a combination of funds stipulated by civil legislation used in connection with perfect against these rights actions (or illegal inaction) of other persons.

In science, the point of view is expressed, according to which the protection of law in a subjective sense is the empirical as part of the subjective ownership right.

There are two directly related subjective civil rights that belong to the owner:

Subjective ownership;

Subjective right to defense of ownership.

Each of them as a subjective right is a measure of the possible behavior of a management person. Some authors set out the above opinion as follows: Related claims (funds of protection of ownership) are included in the content of the subjective right of ownership as absolute real law. Such a position is based on the idea that the content of any subjective right is entitled to the lawsuit.

That is, it turns out that the protection of ownership is its component. It is still thinking that the right to defense is a full-fledged right to which the owner has in connection with the availability of ownership.

The owner has a subjective right. This right includes the crime, that is, the details of all the capabilities that the owner of this subjective right becomes. In the case of the right of ownership, this is the authority of possession, use and orders, in other words, what the subject can do is having such a right. It would be wrong to believe that the ability to defend is also one of the empathy that is part of the subjective right, that is, ways to influence potential violators of such a right. An explanation of such a position is that the subjective right by nature is positive, it is designed to be observed. It is implied to believe that the subjective right implies that it should be broken, would contradict any logic.

1.2 Classification of ways to protect property rights

In Russian civil law science, the system of ways to protect the right of ownership in accordance with various criteria.

A.V. Trofimhenko believes that the need and the possibility of using one or another way to protect the property rights is primarily determined primarily by the nature of the violation (threat of violation) of the specified right. Accordingly, this may be a criterion for the classification of ways to protect the right of ownership of Trofimko, A.V. Actual problems of ownership / A.V. Trophimenko.- M.: Prospekt, 2013.- S. 186 ..

E.A. Sukhanov expanded the criterion used as follows: the distinction is made depending on the nature of violations of the property rights and the content of the protection provided [Sukhanov, p. 209] Sukhanov, E.A. Course lectures on civil law. Special part / E.A. Sukhanov. - M.: Beck, 2012.- P. 209 .. It allocated here:

Related tools to protect property rights;

Obligatory legal means;

Other civil laws of protection of ownership;

Claims for public authorities.

Not all authors are compromised in the issue of allocation. separate species Classifications on this criterion. ABOUT. Leontiev, A.G. Calpine, for example, indicate only three of these types: Related, obligatory and legal and other ways to protect.

M.S. The ship offers along with the traditional real-to-believes of protection of ownership, when protection applies to the thing that produced the object of violation, to allocate the modern Civil Code of the Russian Federation in order to protect universal methods. At the same time, the latter, based on the analysis of the materials of arbitration disputes, recognizes the prevailing. These include:

Recognition of property rights (the rights of economic management, the rights of operational management), the liberation of property from arrest (exception from OTICI);

Restoration of the situation that existed before the violation of the right of ownership and suppression of actions that violate the right, for example, the release of the premises by the requirement to evict the tenant at the end of the lease agreement;

Recognition of an arbitrary deal invalid, for example, a transaction related to the alienation of the property of a legal entity, the value of which is definitely limited by the Charter;

The use of the consequences of the invalidity of a negligible transaction aimed at alienation of property, for example, the contract of sale of state or municipal propertynot containing its valuation;

Recognition of an invalid state of the state body or body of local self-government, violating ownership;

Self-defense of ownership, proportionate to the violation, for example, the sealing of the owner of the premises in order to prevent the tenant of use;

Deprivation of law, for example, the right to use gardener with the infrastructure of the infrastructure of the gardening non-commercial association of the ship, M. S. Civil and legal ways to protect the rights of enterprises: the abstract of the dissertation / M. S. Shozubeva. - M., 2002. - P. 95..

However, among the listed methods there are substantial-legal (recognition of property rights), and obligatory (release of the premises under the lease agreement by eviction). Thus, the application of such a criterion in the classification of ways to protect the right of ownership is visible to us superficial and inaccurate.

V.P. Kamyshansky proposes to divide the ways to protect the ownership of four groups.

The first group, in his opinion, is aware-legal ways to protect property rights.

The second group should include compulsory and legal ways to protect property rights.

The third group includes methods that leak from various civil law institutions.

The fourth group consists of funds aimed at protecting the interests of the owner under the termination of the ownership of the reasons provided for in the law Kamyshan, V.P. Ownership in Russia: Lecture / V.P. Kamyshan. - Volgograd: VA of the Ministry of Internal Affairs of Russia, 2008. - P. 21.

Such a classification is not significantly different from the above system E.A. Sukhanova, or rather, only the name of the last of the four groups of protection methods.

We see sufficient delimitation into two groups: the real and obligations.

Related-legal are claims that are directed directly to the protection of ownership as an absolute subjective right to its content of the right in the absence of contractual or other mandatory relations between the owner and the intruder. These are absolute claims, they are presented to any third parties who violate the right of the owner.

Related claims include: The claim for the recovery of property from someone else's illegal possession is a WINDICATION Suit (Article 301 of the Civil Code of the Russian Federation); The claim for the elimination of violations of the right of ownership, not connected with the deprivation of ownership is a negative claim (Article 304 of the Civil Code of the Russian Federation); claim for recognition of ownership.

Committable legal claims are such claims that are aimed at fulfilling the debtor's obligations to the owner and protect the ownership of an indirect way. These claims are relative, they are presented to the debtor, consisting of the owner in the obligatory legal relationship. Communicably legal claims include: a claim for the return of property transferred under the contract (for example, the recovery of property from the tenant, the keeper); claim for compensation for harm caused by things; Claims about the return of unjust acquired or saved property.

The WINDICATION Claim is historically seen as the claim of an infant owner to owning a misconception about the recovery from his illegal possession of things in nature. According to the current legislation, the WINDICATION can be brought not only by the owner, but also the legitimate owner of the thing Pingnitsky, S.G. WINDICATION AND NEBATOR ISKI in the protection system of ownership / S.G. Pevnitsky // Arbitration and Civil Process. - 2011.- № 10.- S. 12 ..

The negative claim is the claim for the elimination of any violations of his right, at least these violations and were not connected to the deprivation of ownership (Article 304 of the Civil Code of the Russian Federation). Unlike the Wine Claim, the owner does not deprive ownership imposed. The negative lawsuit is aimed at eliminating various interferences that impede the normal implementation of the right of use or orders.

As you know, ways to protect and restore property rights are diverse. The election of an interested person of a particular way directly depends on the nature of violated right.

Those methods that in literature refer to "other" ways and claims to public authorities, from our point of view, can be included in the group of obligational or real-affairs to protect the right of ownership.

The third group adopted to allocate those tools for the protection of the right of ownership, which cannot be attributed to non-state-legal or obligatory legal means. The literature notes that for this group of ways to protect the right of ownership, it is characteristic that they follow from various institutions of civil law. Therefore, they are customary to call other civil laws of protecting property rights.

In science, there is an opinion that only the three above-mentioned groups of protection methods should be allocated. But, as a rule, they also allocate the fourth.

In relation to the methods of the fourth group, there is no consensus in science. So, E.A. Sukhanov in their work preference to unification into a separate category of lawsuits to public authorities, that is, the requirements for state bodies (or local governments), which are civil-legal means of protecting real rights, primarily ownership of Sukhanov, E.A. Course lectures on civil law. Special part / E.A. Sukhanov. - M.: Beck, 2012.- P. 267 ..

Consider the need and validity of the grouping methods for the protection of ownership of the title criteria. We form a group of such ways the most rationally.

To the group of so-called "other" methods of protection, it is customary to attribute those methods that cannot be attributed to any of the other groups, but to classify and combine them for any general features in smaller groups are not possible. It is generally necessary to note the difficulty of distinguishing them with other ways.

So, V.P. Kamyshansky does not clearly determine the difference between "other" ways to protect the ownership of the obligatory. It indicates that for the obligatory group of ways to protect the right of ownership, it is characteristic that "the components of their claims imply not from ownership as such, but are based on other legal institutions and relevant subjective rights institutions." And at the same time, it writes that the group of other protection methods include "Methods that flow from various institutions of civil law, for example, the protection of property rights of the owner in the event of an appearance after the recognition of it is missingly missing either dead" Kamyshansky, V.P. Ownership in Russia: Lecture / V.P. Kamyshan. - Volgograd: VA of the Ministry of Internal Affairs of Russia, 2008. - P. 22..

Rules on the protection of property rights of the owner recognized in installed manner missingly missing or declared dead, in the case of its appearance (Art. 43-46 of the Civil Code of the Russian Federation);

On the protection of the interests of the parties in case of recognition of the transaction invalid (Art. 167-180 of the Civil Code);

About the responsibility of the mortgagee for damage or loss of property (Art. 344 of the Civil Code of the Russian Federation), etc.

It seems to us that in this case the authors allocate not the ways of protection, and the various civil law institutions themselves and indicate the rules on the protection of these relations. At the same time, if we consider specific methods of protection that it is possible to apply in such cases, this will be the methods that relate to previously listed groups: aware-legal or obligatory and legal (requirement for the seizure of property from foreign illegal ownership, the requirement to eliminate obstacles In use and disposal not related to the deprivation of ownership, about recognizing property rights, compensation for damages).

M.S. The shipvaeva, for example, notes the general features of the imaging claim and methods associated with the appearance and requirements of a citizen recognized as missing or deceased (about the cancellation of a court decision on the recognition of a citizen who died and about the return of the preserved property from any person to which it passed free after the announcement of a citizen Died) Shop, M. S. Civil and legal ways to protect the rights of enterprises: the abstract of the dissertation / M. S. Shorubeva. - M., 2002. - P. 95.. However, the author believes that this is just close to the contents to the WinDicational lawsuit, but this requirement is not.

From the point of view of M.S. Ship, similarity lies in the fact that there is a dispute between the former and the present owner. Here the author indicates the proximity to the Winecation claim in the following:

1) Protection is aimed at an individually defined thing that has been preserved in kind;

2) Requirements for the return of the preserved property received by free of charge of the ownership of another person or on the return of property on a paid transaction, provided that the person knew that a citizen declared dead was alive.

At the same time, M.S. The ship sees such requirements not "clean" vinegar, because in these cases not all the conditions of the WINDICATION COST are complied. The author does not specify which conditions of such a claim are not respected.

We see that the difference here is only in indirectness of action to illicit property. However, when a statement of such a requirement to court, the owner will most likely refer to the norm of the law that regulates the requirement to withdraw property from someone else's illegal ownership (Article 301 of the Civil Code of the Russian Federation), as well as the court will be guided by the same norm when making a decision on this issue.

Thus, in our opinion, all "other" ways to protect property rights can be attributed to any of the two undoubtedly allocated groups: aware or obligatory.

2. WINDICATION SECRET

2.1 WINDICATION CASTABLE AS CLEANING METHOD OF PROTECTION OF HOLIDAY

It should be noted that the history of the development of the Wine Claim is coming from Roman law, with some significant differences, it was borrowed by Russian pre-revolutionary legislation, from which he was replaced by Soviet GC 1922 and 1964.

The design of the modern WINDICATION Claim has undergone compared to its ancient Roman predecessor one essential change. The Romans, as you know, did not recognize any restrictions of the Wine. Thus, the imaging was absolute, namely there were no restrictions that are entered in order to protect the conscientious acquirer. Currently, the absolute border of the right to present the owner of the owner is the opportunity to protect its ownership of the Civil Code of the Russian Federation (part of the first) of November 30, 1994 No. 51-ФЗ (ed. From 02.11.2013) // Meeting of Legislation RF.- 1994. - № 32.- Art. 3301 ..

The plaintiff may be an unlike owner or a legal owner, while the plaintiff must prove his rights to the controversial thing;

The objectika can be only individual-specific things that have survived in nature. The imaging claim is aimed at the map, withdrawing exactly the one thing that belongs to the plaintiff. The item can be the objects usually defined by generic signs, if they are individualized in any way, are separate from other things of the same kind (for example, potato bag). If the plaintiff requires the provision of not the same thing, but similar things defined by generic signs, then such a claim cannot be qualified as WINDICATION.

The object of the wine is irreplaceable. In the event of the death of the thing, the ownership of it ceases, as a result of which there is no basis for the WINDICATION. In such cases, property interests of the owner can be satisfied with the help of obligations from harm (Art. 1064 of the Civil Code of the Russian Federation), unreasonable enrichment (Art. 1102 of the Civil Code of the Russian Federation). Similar consequences occur with substantial processing of things;

The WINDICATION Claim is presented to a person who has property in actually in illegal possession. The claim on the recovery of property filed to the person in the illegal possession of which this property was located, but in which it is absent by the time of consideration of the case, cannot be satisfied;

The defendant can only be an illegal owner, i.e. The person possession of which does not relieve the legal basis (for example, a person who kidnapped a thing). An illegal owner is the one who acquired the thing in the person who did not have the right to dispose of it. If the owner handed over the thing to the temporary possession of another person on the basis of a contract (lease, storage, commission, etc.), then the claiming of things according to the termination of contractual relations should not be carried out on the basis of Art. 301 of the Civil Code of the Russian Federation, and on the basis of the rules that regulate the appropriate agreement (for example, under the lease agreement - on the basis of Art. 622 of the Civil Code of the Russian Federation);

The thing can not be exterminated by a conscientious compensator, if the thing has dropped out of ownership of the owner or the legitimate owner by their will (for example, the tenant of property sells it to a third party). The acquirer who did not know did not know and could not know that the person from whom he had acquired property did not have the right to alienate it (paragraph 1 of Art. 302 of the Civil Code of the Russian Federation). In this case, the interests of the bona fide acquirers are subject to priority protection before the interests of the owner, since the owner himself admitted an uncertainty in choosing a counterparty and can make a claim for the recovery of damages.

In accordance with paragraph 2 of Art. 223 of the Civil Code of the Russian Federation, the conscientious acquirer of real estate becomes its owner since the state registration of property rights, despite the lack of an alienator of the necessary amount of emphasis, except in cases where the owner has the right to refer such property from a bona fide acquirer.

At a conscientious person who acquired a thing for paid grounds (purchase and sale, exchange), property can be written only if it was lost by the owner or a person who has been transferred to possession, or abducted by anyone from them Or dropped out of their possession otherwise, in addition to their will, i.e. In the absence of voluntary willing of these persons on the disposal of property from their possession.

If the property is purchased free of charge, then it can be exterminated from any acquirement as unfair and conscientious, since the acquirer of the property due to the Wine Covenant does not lose anything. At the unscrupulous acquirer, property may be exterminated in all cases, since it is guilty of violating the subjective right of the plaintiff. An unscrupulous acquirer recognizes the one who knew or had to know about the misunderstanding of the acquisition of it, that his counterparty is not administered to the alienation of things. Recognition of the acquirer unfastened is carried out by the court, based on the situation of the transaction, the conditions on which it is concluded, the personality of the acquirer. In these cases, the law protects the interests of the owner mainly before the interests of a conscientious acquirer, since the owner is unknown a direct violator of his rights. The acquirer knows the person who has bought a thing, and he can recover losses from him.

The item is vinceditable in the presence of one of the following conditions.	The thing is not subject to WINDICATION in the presence of all 3 the following conditions in the aggregate.
Unscruitance of the acquirement	Good faith of the acquirement
The item was acquired free	The thing is purchased commended
Thing dropped out of possession owner or legal owner besides their will	Thing dropped out of possession owner or legal owner by their will

With regard to the money and securities of the bearer, a special rule was established (clause 3 of Article 302 of the Civil Code of the Russian Federation): they cannot be exterminated from a bona fide acquirer, regardless of the method of their disposal from ownership of the owner or legal owner (by will or otherwise); The nature of their acquisition (compensated or free). An unfailed acquirer of money and securities are subject to imaging.

According to Art. 303 of the Civil Code of the Russian Federation, if the owner is becoming requested by the owner, the owner is entitled to demand the return or compensation for all revenues that the defendant recovered or should have learned, and the defendant is entitled to demand from the owner of the reimbursement of the necessary property costs (for example, the cost of repair, property costs). Revenues and expenses are calculated in the Wine Bottical of the Structure of the unfair acquirer - from the moment of the use of the thing, at a conscientious acquirer - from the moment he learned or had to learn about the misunderstanding of the ownership or received an agenda for the court on the claim for the owner's reset.

Increased cases of applying the subjects of civil law relations as a legal way to resolve their property interests, incl. and subjects state owned At different levels, municipal property, cause the need to study the materials of law enforcement practice and theoretical study of the WINDICATION Claim to hold a small analysis of the WINDICATION Claim on the possibility of its recognition as an unconditional legal mechanism for the protection of ownership.

So, from the results of the analysis of the main indicators of the work of arbitration courts of the Russian Federation in 2012 - 2013. It follows that the number of cases related to the protection of ownership has increased from 26534 cases in 2012 to 29480 cases in 2013 (by 11%). At the same time, from these statistics, it follows that the number of cases on disputes about the owner of the property from someone else's illegal possession increased by 48%.

In modern legal literature, the following concept of the Wing Claim is approved. Under it understand the claim of the infant owner to owning a non-overall about the return of things in Nature Zhivihina, I.B. Civil law problems of protection and protection of ownership: author. Dis. / I.B. Zhivihina.- M., 2012.- S. 28 .. However, the discussion causes the legal nature of the visionic claim. So, E.A. Krasheninnikov argues that the imaging claim is not identical to the right of ownership and is an independent subjective right. The author, when considering the legal nature of the Wine Circuit, the reasonably justifies that this claim is part of the property right and cannot exist as part of a separate legal relationship.

Winecation is a way to protect the property interests of the title owner, a way to get a specific-specific thing in its actual possession and use, and in case such a person is the owner, then getting things at their disposal from the person who is illegal retention.

This conclusion follows from the content of Art. Art. 301 and 305 of the Civil Code of the Russian Federation, which establish that the owner is entitled to refer its property from someone else's illegal possession (Art. 301 of the Civil Code of the Russian Federation). The rights provided for by Art. 301 of the Civil Code of the Russian Federation, also belong to the person, although not the owner, but owning property on the right of life inherited ownership, economic management, operational management, or by other grounds provided for by law or the Eagle Treaty, E.L. WINDICATIONAL PROTECTION OF HOLIDAY AND OTHER PROFESSIONS: Author. dis. / E.L. Orlova.- M., 2013.- S. 19 .. This person has the right to defend his possession also against the owner.

Consequently, the use of WINDICATION as a method of protecting the property interests of the title owner must precede the presence of certain legal conditions.

Availability of the plaintiff ownership, or other real law, or a legal title on the possession of a thing. The law establishes the requirements for the reasons for the occurrence of ownership (other legal title) on the thing.

In judicial practice, the question often arises whether the court must check the reality of the transaction that has given the ownership of the plaintiff. If the case materials indicate that the transaction, on the basis of which the plaintiff's ownership has arisen, is insignificant, for example, due to the inconsistency of law or other legal acts, then the court is granted the right to apply the consequences of the invalidity of such a transaction on its own initiative.

This response is given in the decision of the Plenum of the Russian Federation of the Russian Federation of April 29, 2010 No. 22 "On some issues arising in judicial practice in resolving disputes related to the protection of the right of ownership and other real rights" Vestnik of the Russian Federation. - 2010.- No. 6. which has been established that in resolving lawsuits about the extermination of property from someone else's illegal possession declared by persons, the title of owner of which is based on an insignificant transaction or an act of a state body or a branch of the municipal self-government contrary to the law, the Arbitration Court has the right to evaluate such a transaction or, accordingly, Apply the act of the specified organ (paragraph 12 of Art. 12 of the Civil Code of the Russian Federation), regardless of whether the claims for recognition of a transaction or an act invalid. If the plaintiff acquired the right of ownership on the basis of a negligible transaction or an act of a body that does not meet the requirements of the legislation, it does not have legal grounds For the statement of property.

A prerequisite that generates the basis for handling the imaging claim is the fact of loss by the owner (title owner) of the actual ownership of the thing. Only individually-specific property can be treated, which follows from the essence of this claim, aimed at returning the owner of the same property, which has dropped out of its possession, or things with one common properties for all things of this species, such as grain, building materials, and T .. This condition has a significant legal importance in the vinegar of property, because If it is impossible to identify the item should be made a not a WINDICATION claim, but a claim from unjust enrichment.

Winekitia is applied to the face actually owning a thing in the absence of legal grounds.

The imaging claim can be satisfied depending on the goodness of its acquisition by the defendant. According to Art. 302 of the Civil Code of the Russian Federation the owner is recognized as conscientious if, "acquiring a thing, he did not know and should not have known that the alienator of the thing was not controlled by its alienation. In the event that the owner of things knew or had to know that it would acquire a person who did not have the right to alienate, it is considered unfair. To recognize the acquirer unfair not enough good inappropriateness, and intent or rough negligence is required. "

Thus, in this case, the general rules of the property are not operating in this case: the conscientious acquirer is guaranteed from claiming money or securities on the bearer, regardless of whether it took possession of them commended or free. It also does not matter whether the specified objects dropped out of the owner's own owner or against his will. This rule applies only to driven things, because Registration principle of real estate turnover implies the exception of the possibility of a conscientious acquisition of someone else's property.

In this regard, an example is notable from forensic arbitration practice.

The Federal Medical and Biological Agency (hereinafter - the plaintiff) appealed to the Arbitration Court of the Stavropol Territory with a claim to LLC North Caucasian Production and Information Center, LLC Yuzhkom, Individual Entrepreneur Rudenko S.A. On recognition of the right of federal property on real estate facilities (building, equipment, structures and communications), located on a land plot with a total area of \u200b\u200b23,255 square meters. m at the address: Pyatigorsk, Racing, Promzone-2.

By decision of 02.06.2009, refused to satisfy the claims. Protection Property WINDICATION Suit

The court found that the controversial real estate facilities were seized from the FSUE "KMV - Medservis" (now liquidated in the bankruptcy procedure) and transferred to the operational management of the sanatorium on the basis of the orders of the territorial administration of the Ministry of Property Relations of the Russian Federation in the Stavropol Territory of 04.06.2004 No. 216, from 28.06.2004 No. 287, dated July 13, 2004 No. 305, recognized as invalid resolution of the Federal Arbitration Court of the North Caucasus District of August 30, 2006 in case No. A63-12809 / 2004-C4. In the insolvency procedure (bankruptcy) of the FSUE "KMV - Medservice" Objects of real estate sold from trading in the property of the North Caucasus Production and Information Center LLC. The plaintiff did not confirm the right of federal property after the sale of property.

Definition of sixteenth arbitration court of Appeal On July 29, 2009, the decision was canceled in connection with the violation by the court of first instance of the process standards: consideration of the case in the absence of Rudenko S.A., not properly notified of the time and place of the court hearing. The specified definition of the appellate court switched to the consideration of the case on the rules of the first instance.

In the appellate instance, the plaintiff clarified the requirements and asked to restore the Russian Federation to ownership of real estate (buildings, structures), which retired from the ownership of the Russian Federation, besides its will, located on the land plot with a total area of \u200b\u200b23,255 square meters. M at the address: Pyatigorsk, Racing, Promzone-2; Restore the right of operational management of the sanatorium to the specified real estate objects, to withdraw them from someone else's illegal possession; recognize invalid records in one state registry Rights to real estate and transactions with it with respect to controversial real estate. By the decision of the Sixteenth Arbitration Court of Appeal of 02.11.2009 satisfied. The court regained the Russian Federation to ownership of real estate (buildings, structures), which retired from the ownership of the Russian Federation, besides its will, located on a land plot with a total area of \u200b\u200b23,255 square meters. M at the address: Pyatigorsk, Racing, Promzone-2; Restored the right of operational management of the sanatorium into these properties (buildings, structures), located on a land plot with a total area of \u200b\u200b23255 square meters. M at the address: Pyatigorsk, Racing, Promzone-2; Real estate controversial facilities (buildings, structures), located on a land plot with a total area of \u200b\u200b23255 square meters. m at the address: Pyatigorsk, Racing, Promzone-2, from someone else's illegal possession; Recognized invalid entries in the Unified State Register of Rights to Real Estate and Transactions with Disting Real Estate Objects. The judicial act is motivated by the fact that the right of operational management of the sanatorium on real estate objects arose on legal grounds during the rules of the territorial administration of the Ministry of Property Relations of the Russian Federation in the Stavropol Territory of 04.06.2004 No. 216, from 28.06.2004 No. 287, from 13.07.2004 No. 305 And the recognition of these orders invalid does not entail the seizure of controversial property from the sanatorium. The appellate court indicated that, since the state registration of the Rights of Operational Department of the Sanatorium was not contested, the owner of the rights to real estate is considered to be a person who is indicated in the Unified State Register of Rights to Real Estate and Transactions with Him.

...

The concept of ownership

Protection of ownership is available exclusively in the field of legal relations. But this category is so multifaceted that several interpretations have immediately and can be used in different fields of activity. To speak from an economic point of view, the property is a totality of things that belong to one person, that is, this property is a certain person.

It should be understood that this is primarily the attitude of trade and economic nature. With regard to the term "property", it shows only the structural part of the property. Simply put, property is recognized by concrete things from the entire array of human property.

In the legal context, property is a structure or a complex of rights to which the subjects of a certain industry have in relation to their property. In this case, property as a legal category has three fundamental forms, namely: state, municipal, private. The term is used in several branches of law. In some, such as civil law, he is a whole institution regulating the process of ownership, orders and use.

This article coves the property in a legal context. The fact is that the protection of ownership is possible only through special mechanisms. They exist in certain branches of legal science.

Legal category of property

The ownership is governed by the Civil Code of the Russian Federation. In essence, it is the "ideal" real right. In addition to the very attitude of the person to their property, a certain intellectual property right may also be present. However, such a structure is just theoretical. The real essence of property consists of the right to use, possessing and disposal of a particular thing. It should be noted that there is no official interpretation of this concept. Its essence is known since the times of Roman law, but even lawyers of that time could not answer the question, which means this category. This philosophical stone of the civilist for a long time waiting for the minds of scientists, because the protection of ownership should be built primarily on its concept. The most successful explanation is the theory that ownership is the most complete and direct power over the thing. Some scientists subdivide a similar interpretation for two criteria, namely:

The objective side of the property rights allows you to perform any actions against property with a share of certain restrictions.

The subjective side shows the personal nature of the implementation of any actions at its discretion.

Property rights

As mentioned earlier, the right of ownership is known since the time of Ancient Rome. After the reception of the Roman law, during the Middle Ages, a certain problem appeared. It was associated with the existence of two legal regimes of property management at once. On the one hand, the subject was a feudal, on the other - Vassal. The legal doctrine of that time did not contain any explanations about this. Thus, the possibility of several parties at once, which could affect the fate of the property. Later, a certain legal loophole was developed, which allowed a complete association of several rights to the same property.

Modern trends in the continental right led to recognition of ownership of the privilege. In other words, it can be focused in the hands of only one person. But in the countries of the Anglo-American law a completely different understanding of property. There this category is very similar to the feudal. This eliminates the full ownership of private individuals. As for movable objects, they can be in private ownership of individuals.

The modern civil law of the Russian Federation is built classically on three whales: possession, disposal and use. Depending on the presence of all three elements, it is customary to allocate full ownership or its species branches. Protection of ownership and other real rights rights in the Russian Federation is organized based on the consideration of each of the elements.

Acquisition and termination of ownership

There are main points of acquiring and stopping human rights on certain things. It must be remembered that the birth of a person is not a reason for the appearance of the opportunity to manage a certain thing. Only through concrete legal facts, a person can find the category presented in the article. These facts include:

Directly making things by the owner or providing them with materials for this purpose;

The use of property that subsequently brought any fruits, results;

The acquisition of property through the contract of sale or other transaction;

Inheritance of property;

At the same time, the legislator also regulated the process of termination of ownership. Similar attention to this category comes from the principle of invisibility of ownership. In the standard version, a person loses its own rights to the property in case of their transfer to other persons, the death of property or refusal from their property. Although there are cases when the state has the full right to forcefully stop the ownership of property. To such cases, the following can be attributed:

Nationalization;

Confiscation;

Requisition;

Repayment of ownership of obligations;

Forced redemption for the needs of municipal and government;

Earth withdrawal, which is not used in its target destination.

In addition to the submitted aspects, the legislator may establish other ways to enforce the right of ownership.

The concept of protection of property rights

According to international legal acts and the current legislation of the Russian Federation, each person has the right to own and dispose of property. In addition to this, a citizen can use their own package of opportunities as sole and together with other subjects of law. The presented economic and legal regime is supported by the principle of inviolability of property. As we understand, any framework established by law or other regulatory acts is always violated. This negative phenomenon may also happen to the category under consideration. Thus, the protection of property rights is carried out to hold the existing regime and its absolute protection. It should be noted that this institution of the civil industry is implemented by citizens or other subjects through judicial instances. At the same time, the protection of ownership and other things can be carried out in non-revocional form (self-defense).

The forensic shape is most often used. The fact is that it gives a guaranteed result in case of winning the case. It should also be noted that the protection of property rights and other things should be organized by two types of lawsuits depending on the available impairment.

WINDICATION Suit: General Concept

The judicial protection of the right of ownership is produced by means of video and negative lawsuits. As for the first species, he was known since the times of ancient Rome. Translated from Latin, the name of the claim is decoded as "announcement of strength, use of force." In modern theory of civil law, the modern concept of this method of protection is presented.

According to the GC, a guidance lawsuit is a type of claim from the owner to face that illegally owns its property. In other words, this is the sealing of its property from illegal, someone else's ownership. Protection of property rights and other things with the use of this judicial stroke allows to actually return their property.

What is real estate vote?

Many ways to protect property rights are based on the existing presumption of the appropriate owner, especially when it comes to the Winecation lawsuit. According to this theory, the immediate or actual owner is proper, that is, the owner of the property. This fact creates many problems for a person who submits a guidance lawsuit to court, because the duty of proving improper ownership by the defendant completely falls on the plaintiff's shoulders. At the same time, the defendant is exempt from any obligations to proof its rightness. Thus, the proper owner is very difficult to build a competent strategy for the protection of its property. Nevertheless, if the plaintiff has everything required documents, as well as the actual evidence of the defendant's wrong, then the thing is not to refine from illegal possession.

Conditions of the presentation of the Wine Claim

Civil law protection of ownership with the help of a WINDICATION Claim can be carried out only if there are a number of mandatory conditions. They determine the number of cases when the subject can apply to the court with the presentation of the claim submitted. To such conditions can be attributed:

The owner is completely deprived of property of property, and it, in turn, completely dropped out of his possession. When it actually remains in possession of the proper owner, and the third person challenges his right, then a lawsuit is filed about his recognition.

Property, in relation to which a claim is made, exists in a constant, initial form in possession of a third party. In the event of significant changes or death of property, the ownership is automatically terminated, and the proper owner can only require damages.

With the help of the Wizard, the property rights is protected, and the subject of the application will be the requirement to return the property illegally.

Related claims

In some states, there is a real protection of ownership. The turning method of this form is a real lawsuit. It should be noted that in the legislation of Russia there is no such concept, although this institute is sufficiently similar to a vigorical lawsuit. In a classic understanding of a real requirement, or a lawsuit, is a non-definition request to third parties on the termination of violations of rights to a particular thing or eliminating aspects that these violations create. As mentioned earlier, this institution has many similarities with a vigorical protection method (absolute nature, logistical requirement, a reducing nature, implementation through the court).

Although there is no such category in civil law and the legislation of Russia, it exists in the doctrinal works of many scientists as a key basis of all known ways to protect property rights.

Negator lawsuit

Related methods for protecting property rights include the possibility of presenting a negative claim, which refers to a specific method of judicial protection of rights. Previously, we already pointed out that the WINDICATION and Negator Iska are key in civil law. However, they differ significantly among themselves. The negative lawsuit is the requirement of a non-responding nature of the proper owner addressed to third parties to stop or eliminating obstacles that create difficulties in the process of direct order or use of property. It can also be described as a basis for the Base, which is built by the legal protection of property rights through judicial instance.

Structure of the claim

Given the above interpretation, it can be concluded that the basis for a negative claim is the circumstances that substantiate the plaintiff's rights to use, possession and order of the thing. On the other hand, the circumstance is the behavior of a third party or persons, as a result of which the plaintiff cannot use his property fully. Thus, you can highlight a circle of individuals that can be parties in the dispute. The plaintiff always stands:

The title owner of the property;

Owner;

The subject of the real law, which is limited;

As for the defendant, it is almost always a person who is opposed to them, whose illegal actions are caused by the plaintiff in the process of implementing their property rights.

It should be noted that in addition to all the requirements that the plaintiff wishes to satisfy through a claim, it also has the full right to demand from the other side of the compensation of harm and losses incurred by it due to the impossibility of realizing their right throughout a certain time.

Problems of negative lawsuit

Legal protection of ownership with the help of a negative claim for many years already has disputes among lawyers as a practical sphere of activity and scientific. The dispute itself originated in Roman law. The essence lies in the fact that the negative claim cannot be counted to universal in nature to protect methods. Such an opinion was developed as a result of the fact that this judicial method can be used absolutely in any case, if only the dispute was not associated with the actual deprivation of ownership. Nevertheless, other practices are parked by this conclusion, referring to the fact that the WINDICATION METHOD is inherently directly proportional to the idea, but there are no questions about the versatility. To date, legal ways to protect property rights cause many theoretical disputes, but this does not prevent them from using citizens of the Russian Federation in order to protect and protect their disturbed or infrainment rights.

Self-defense

Protection of ownership and other things can be implemented by citizens of the Russian Federation directly, without the use of courts.

In civil law, the initiative actions of subjects aimed at preventing the actual violation of their legal regime, as well as actions aimed at reducing the consequences after any violation of the right. This category is provided for in Article 12 of the Civil Code of the Russian Federation. Article 14 explains that self-defense must be proportioned in violation. It can not go out for the generally accepted framework that are installed by the norms of morality in society.

Other matters of civil legal protection

Along with the right of ownership, people sell a lot of other eligibility in their everyday life. This includes contractual, hereditary, obligational and other legal relations. Thus, in civil law a whole string of ways to ensure the protection of rights. This includes real-legal methods and mandatory legal, used mainly in case of violation of contractual or obligations. An excellent example is the protection of intellectual property rights. In addition to title competence, this category contains a lot of other, accompanying legal aspects, if we take into account the specific characteristics of intellectual property at all.

Thus, this article presents the concept of protection of property rights, as well as the main types of its implementation. In conclusion, it should be noted that the protection itself is a legal relationship with the characteristic subject, the object and parties. However, given the principle of dispositionability in civil law, man is given the opportunity to choose the methods that are most convenient for him. Plus, lawyers constantly model all new aspects of the protection of civil rights, because humanity evolves, and therefore, the nature of the right is changing.

In general, the right to defense can be defined as the possibility of applying law enforcement measures to restore its violated or challenged right. Protective protection are not only subjective civil rights, but

and the interests protected by law 4.

In art. The 301 Civil Code of the Russian Federation states that the owner can refer its property from someone else's illegal possession. As a means of judicial protection of civil rights, lawsuit acts, i.e. Failing to the court requirement to send justice, and referring to the defendant material and legal requirement to fulfill the obligations lying on it or recognizing the presence or lack of legal relationship.

Protection of civil rights and protected interests is ensured

application of the methods provided by the law.

Article 12 of the Civil Code calls eleven ways to protect civil rights. It should be distinguished ways to protect civil rights from the ways to protect property rights. The protection of civil rights includes:

1. Recognition of law;

2. Restoration of the situation that existed before violation of the right and suppression of actions that violate the right or creating a threat to its violation;

3. Recognition of an arbitrary transaction invalid and the use of the consequences of its invalidity, the use of the consequences of the invalidity of a negligible transaction;

4. Recognition of invalidation of the state of the state authority or body

local self-government;

5. self-defense of law;

6. Forced to the execution of duties in nature;

7. Compensation of losses;

8. Recovery of penalty;

9. Compensation of moral damage;

10. Termination or change of legal relationship;

11. Non-juice by the court of an act of the state body or local government contrary to the law. As well as other ways not provided for by law.

The most important way to protect ownership is VinDikatiya, i.e.

calculation by the owner of his own thing from someone else's illegal ownership of 5.

a) imaging claim - This is the lawsuit of the unbreakable owner to owning a non-oversucky thing. 6 The subject of the WINDITIONAL COST may be only individually defined property, having an illegal owner in kind.

If the property is destroyed, the owner cannot require his return. But it is entitled to make a claim for damages. The owner is temporarily deprived of the possibility of carrying out all three pupils, but the right of ownership behind it is maintained and serves as the basis for the presentation of a claim about the withdrawal of a thing at the illegal owner.

If you illegally owning a person at the time of the presentation of the claim turned the thing to another person (sold, presented, etc.), then the claim should be brought to the person who actually contains this thing. Moreover, such an owner must be illegal. The illegal owner is a person who has kidnapped the thing that was assigned to the find, acquired a thing of a person who is not controlled by its alienation, etc.

Civil legislation distinguishes two types of illegal ownership of someone else's thing that generates various legal consequences:

1) Good ownership when the actual owner of the thing (a conscientious acquirer) does not know and should not know about the illegality of its possession. According to paragraph 3 of Art. 302 GK This owner cannot request money or presenter securities. However, the property at a conscientious acquirer can be requested:

a) In the event that such property was obtained free of charge (donation, inheritance, etc.) on behalf, which did not have the right to align 7. In this case, such withdrawal does not carry property losses in a conscientious acquirer, but contributes to the restoration of violated property rights;

b) in the case of a paid acquisition of the property by a conscientious acquirer of a person who did not have the right to alienate him, if the owner of the property or a person who was transferred to possession, lost it, or the property was kidnapped or dropped out of the possession of the last other way, in addition to their will 8 ;

2) unfair possession when the actual owner knows either in circumstances the case should know about the absence of rights to property. At the same time, the property of an unfair acquirer may be exterminated by the owner in all cases without any restrictions.

The WINDICATION claim may be presented only in the absence of compulsory relationships between the parties or after the obligatory relations stopped (before their cessation, the ownership of the thing relies on the legal basis). Installing in the form of a general rule the impossibility of wine

the owner of his thing from a conscientious compensator,

the law at the same time allows individual exceptions.

Windiculture applies:

1. In Right conscientious acquirerIf the property has been kidnapped by the owner or by the person who has been transferred to the owner to possession.

2. With regard to a bona fide acquirer if the property was lost by the owner or a person to whom this property was transferred to the owner of possession.

3. With regard to a bona fide acquirer, if the property has dropped out of ownership of the owner or from the possession of the person to whom the owner handed over the ownership thing, otherwise, in addition to their will 9.

b) negative claim - This is the claim for the elimination of all violations of his right, interference in the implementation of its emphasis. 10 The negative claims are directed to protect the rights of use and disposal of property. Such claims serve as the main way of protection against the actions of the servitude of the owner.

1. The owner of the real estate (land plot, other real estate) has the right to demand from the owner of the neighboring land plot, and in the necessary cases and from the owner of another land plot, the provision of limited use rights to the neighboring plot (servitude).

A servitude can be installed to provide passage and travel through the neighboring land plot, as well as other needs of the property of real estate, which cannot be provided without establishing a servitude.

2. The support of the land plot by the servitude does not deprive the owner of the area of \u200b\u200bownership, use and disposal by this site. Also, a negative claim may be presented with regard to the termination of the servitude. 11 Therefore, the limitation period does not apply to this kind of claims - the requirement can be submitted at any time while the offense is preserved.

c) ownership claim - This is the lawsuit of the owner of a thing on the basis of the law provided by law or the contract, about the request of the thing or eliminating violations of its right (including protection also against the owner).

The owner of the property belongs to the owner of the property on the right of life-inherited ownership, economic management, operational management and on another basis provided for by law or contract. The ownership of protection can be considered and more widely - as a rule belonging to any owner (in the absence of illegal bases). In this case, the owner may also use the owner. After protection with the help of vibration and negative lawsuits, it also belongs to other title owners: tenants, custodians, subjects of the rights of life-inherited ownership, economic management and other limited real rights

In the case when the seller is a person who has not had the right to alienate it (the thing is leased or is his find). And the acquirer of things is a conscientious person, that is, a person who did not know and could not know that the seller had no right to alienate the thing. Then comes the relevance factor of the transaction.

If the property was purchased free of charge from a person who had no right to alienate, the owner is entitled to recall property in all cases. If on a paid transaction, the owner is entitled to refer property only when the property has dropped out of ownership of the owner (or the person to whom the owner handed over the thing) besides his will; Including when the property is stolen, lost (during the transfer of property by the will of the owner, the owner is known to the owner and he can refer to him with proper reimbursement in regression).

The owner has the right to demand from the owner of the reimbursement of the necessary costs of property from which the owner is due to property revenues. The conscientious owner has the right to leave (or require reimbursement of costs) produced by the improvement of property. 12

d) commitment and legal ways to protect property rights

Real rights may be violated and indirectly as a consequence

violations of other, most often obligatory rights . For example, a person to whom the owner conveyed his thing under the contract (tenant, keeper, carrier, etc.) refuses to return it to the owner either returns with damage. Here we can talk about the application of the obligatory legal methods of protection of property rights. They are specifically designed for the cases when the owner is associated with the offender commitment.

Commitable legal methods of protection are, therefore, relative nature and may have any property, including both things (for example, to be transferred to the acquirer of goods) and various rights, rights of use, etc.). At the same time, the title (legitimate) owners who own someone else's property due to the law or contract can protect their own property ownership even against his owner.

The realistic protection of title owners, including subjects of obligatory, and not only real rights to someone else's property, is the concept of ownership of the ownership, which in certain cases is protected and conscientious illegal ownership of 13. Actual conscientious ownership can be the basis for the acquisition of ownership of ownership of someone else's ownership (misbehane) property, including real estate 14.

Thus, obligatory legal ways to protect rights

property This is an obligation based on the obligation that exists between the owner and the violator of its right under this obligation and its ownership rights.

In the theory of civil law, the concept of civil legal protection of the right of ownership and other things is considered in the relationship with the concept of legal protection, which, in its value, is determined more widely, as it covers not only the application of norms in violating the right of ownership and other things, but and ensures the unimpeded development of these relationships. Civil law standards aimed at protecting property rights install the belonging of material benefits to subjects civil legal relations, Conditions are provided to the conditions for the realization of their rights under certain limits, and also establish adverse effects for violators.Protection of the property rights and other things - the concept is narrower, including a combination of civil law (measures), the use of which is possible only in the event of a violation of these rights.

Legislative regulation of this area of \u200b\u200bcivil legal relations is provided for by Art. 45 of the Constitution of the Russian Federation, which enshrines the principle that everyone has the right to defend its rights by all legitimate methods; Art. 12 of the Civil Code of the Russian Federation, in which the basic legal ways to protect the violated rights are identified; GL 20 Civil Code of the Russian Federation, establishing possible ways of civil-legal protection of property rights and other things. Analyzing the provisions of the latter, it should be noted that the law protects not only the rights of the owner, but also applies to the sphere of the owner's rights (Article 305 of the Civil Code of the Russian Federation).

Depending on the content of the protection provided and on the nature of the encroachment on the right of the owner, allocate:

relevant legal;
obligatory;
other (claims for public authorities; claim for the recognition of the right)civil legal ways to protect property rights.

Related and legal ways to protect

The essence of the remedy is reduced to the restoration of the right of domination over the thing of the controlled person, and not to the obligation of the debtor to act in a certain way. In this regard, the object of real-acting protection methods may be right only on individual-defined things that persist in nature as the subject of the dispute (paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other real rights "). These methods are not related to the presence of any obligations between the owner and the intruder, they are subject to use directly in violation by the third party of the legitimate property right or other real law and are aimed at protecting the subject of legal relations from unlawful encroachment. Consequently, the characteristic feature of the real-acting protection methods is their absolute nature, which involves the implementation of protection with absolute lawsuits, that is, the presentation of which is possible to any violator of real law. There are two types of absolute lawsuits:

1. Windiculture lawsuit (WINDICATION)(from Lat. ActioreInInDicate - "I announce the use of force") - can be brought by the legal owner of the thing, which actually dropped out of his possession, to the person, to whose possession she passed and which is not its owner by law, about the forced extermination of this thing At the last. For example, a contractor who owns the result of unfinished work, with the termination of the contract, the right of such ownership loses the right of such ownership, and the Customer has the right to present a handicraft requirement to the contractor regarding the indicated result (see Resolution of the Moscow District. -06 in case number A40-16512 / 06-28-158). For the realization of the right to defense on the Wine Covenant to the legal owner, or rather, any legitimate (title) owner of things - it is necessary to prove its right (legal title) to the investigative thing.

Speaking about the nature of illegal ownership of a stranger, two options for such possessions that generate various legal consequences: Good and unfair. According to civil lawIn the event of unscrupiance of ownership (when the acquirer knew that the thing goes into his possession from a misuse) - the owner is entitled to demand the return of all the property without any exceptions. If the acquirer did not know and should not have been to know about the illegality of his own ownership, he recognizes conscientious, and, in this case, the owner has the right to refer its property, except in cases of gratuitous acquisition of property, as well as cases of payment of money and securities for bearer.

Protection of ownership or other real law on a Wing Cardication claim can be applied not only by the owner, but also by the person who owns the property, for example, the tenant.

2. Negator lawsuit(from Lat. ActionEgatoria - "denying claim") - is presented if it is necessary to eliminate obstacles in the implementation of the right of ownership or other real law, when the violation is not related to the actual deprivation of the subject of the right of ownership of a thing, however prevents its effective use (Article 304 of the Civil Code of the Russian Federation ). Requirements for this type of claim do not have a limitation of reference, while maintaining its relevance for the entire time of the definitive state, which means the possibility of owner to refer to this method of civil-legal protection at any time during the duration of the offense (see the information letter of the Presidium of the Supreme Court of the Russian Federation of 15.01. 2013 No. 153 "An overview of judicial practice on some issues of protecting the rights of the owner from violations that are not involved in deprivation"). After eliminating the unlawful state to the violator, a claim may be made on compensation for damages related to the number of claims.

Commitable protection methods

Commitable ways to protect property rights are applicable in case of violation of ownership or other real law indirectly - as a result of a violation of the obligatory rights arising, in most cases, from the contract of the parties. The wealth of protection methods are relative and are directed both to prevent an offense with respect to a certain item and in relation to the right object. Claims related to the obligatory legal methods of protecting the right of ownership and other real rights flow out of contractual or other obligations, in case of harm to the property of a citizen by the actions of a non-emergency; Or may be aimed at recognizing transactions that violate these rights, invalid the use of the consequences of their invalidity. Since the requirements for a negative claim are not directly related to the right of ownership, its use can be directed not only to eliminate barriers to the right of ownership or other real law, but also to compensation for damages resulting from an offense. For example, the plaintiff has the right to recover from the respondent losses in the form of the cost of a non-returnable product transferred to the defendant for storage under the contract (see Resolution of the Moscow District Arbitration Court of November 25, 2014 No. A40-97386 / 13-131-918 ).

Other civil laws of protection

These methods include, above all:

claims for recognition of the right Property or other real law - are presented if it is necessary to legal confirmation of the right to property that constitutes the subject of the dispute, if the fact of the availability of this right cannot be confirmed in a different way. Their goal is to eliminate possible obstacles to the exercise by the owner (or the title owner) of their right and eliminate the claims on property, lawfully belonging to the face. An example of such a civil law protection can be recognized by the right of ownership of the land plot, establishing the legal fact of ownership and use on the right of ownership of real estate on it (see Appeal definition Supreme Court Republic of Bashkortostan dated 04.07.2016 in case number 33-12825 / 2016).
claims to public authorities - presented to organs state power or local governments in case of violation of the action (inaction) of their officials of the legitimate property rights or other real rights rights of citizens. In addition to mentioned claims, whose rights are broken regulatory act The public authority, which is not relevant to the law, has the right to file a claim with the requirement to recognize this act in court invalid and compensation for damages in full (Article 16 of the Civil Code of the Russian Federation). Close in meaning to the latest category of lawsuits about the recognition of invalid infardial (non-physical) acts of public authorities, which are wrong with the termination of ownership. Also, to the number of claims to protect the real rights of persons from the illegal actions of state bodies or bodies of local governments, it is assessed about the release of property from arrest (exclusion from OTICI) if its inclusion in Opve was wrong and proven to ownership of another person to this property.

Also on the topic

Rules for safe storage of chemical reagents

On the organization of the sale of those in state or municipal self-government

Federal Law on Budgetary Institutions

Legislative base of the Russian Federation Order of the Ministry of Transport 196 from 10

"I'll go to the victorious": why the provision of the Federal Law on Mandatory Payment of Compensation to Entor Entor "not necessarily" in the regions of the Russian Federation Transfer and storage of video recording