Ownership and other property rights. Disposition is an integral driving force of all economic processes

1. The owner has the rights to own, use and dispose of his property.

2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.

3. Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law (), is carried out by their owner freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.

4. The owner can transfer his property into trust management to another person (trustee). The transfer of property into trust management does not entail the transfer of ownership rights to the trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.

Commentary on Article 209 of the Civil Code of the Russian Federation

1. Paragraph 1 of the commented article provides a general description of the powers of the owner. The right of property is the most important institution in the sub-branch of property law and the system-forming core of the branch of civil law as a whole.

In a subjective sense, the right of ownership is the most complete legally enforceable opportunity to own, use and dispose of an individually defined thing at one’s own discretion, regardless of other persons and without a time limit. It has both generic characteristics of real rights (for the concept and characteristics of real rights, see the commentary to Article 216 of the Civil Code), as well as specific characteristics that distinguish it from other real rights.

2. The first (generic) sign of ownership is that its object is an individually defined thing. Thus, precisely because of the absence of this attribute, intellectual property, which has as its object intangible results of intellectual activity and means of individualization, can be considered only a homonym of property rights, but not its variety. Regulations ch. 13 of the Civil Code on property rights do not apply to intellectual property - neither directly nor subsidiaryly, which is confirmed in Art. 1227 Civil Code.

The concept of an object of ownership does not depend on the negotiability of this object. Ownership includes both objects that have not been withdrawn from circulation and are limited in circulation, as well as objects that have been withdrawn from circulation (see commentary to Article 129 of the Civil Code).

The second (generic) characteristic of property rights is its absoluteness. Satisfaction of the owner's interest depends only on his actions; the owner does not need anyone's help, anyone's mediation.

The third (generic) characteristic of property rights, like any other property right, should be the presence of the right to use, mentioned in paragraph 1 of the commented article. Use is a legally secured opportunity to extract useful properties, fruits and other income from a thing during its operation.

Violation of the intended purpose when using a thing is not illegal, unless the rights and legitimate interests of third parties, as well as the foundations of legal order and morality, are violated. Thus, the use of land plots or residential premises in violation of their intended purpose may lead to termination of ownership rights to them (see commentary to Articles 285, 293 of the Civil Code).

3. The fourth feature of property rights - the presence, along with the right to use, also the right to own - is no longer generic, but specific, since it is not characteristic of all property rights. Possession is understood as the legally secured possibility of volitional, actual and direct domination of a person over a thing. Possession is characterized by the following features.

Firstly, it is expressed in direct domination over a thing, i.e. independent and open exercise of economic power over it.

Secondly, this dominance is actual, meaning the possibility of entering into physical contact with a thing every time as quickly as it depends on the will of the owner and the content of the right granted to him. Therefore, a rented piano, which according to the terms of the agreement continues to remain in the lessor's house, cannot be considered to be in the possession of the lessee.

Thirdly, such domination must be strong-willed, i.e. directly aimed at the desire to own. The presence of such a will is evidenced precisely by the use of a thing (readiness to begin such use at any moment). In this, strictly speaking, possession (possessio) as a right of ownership (clause 1 of the commented article) differs both from the spatial relationship of proximity to a thing, and from holding (detentio), which presupposes the possession of a thing, but not for the purpose of extracting useful things from it properties corresponding to its economic purpose. Dominance in holding is not an end in itself, but a forced state that allows one to solve the problems facing the holder (custodian, carrier, commission agent, trustee).

4. The Civil Code distinguishes between legal and illegal possession. Legal ownership is carried out on some legal basis (title; hence the second name - “title ownership”). Other possession is considered illegal or untitled.

In turn, illegal possession is divided into bona fide and dishonest. The conscientiousness of the illegal owner is manifested in cases where he did not know and could not know about the illegality of his possession. In other cases, the illegal owner is unscrupulous.

The classification of illegal possession into bona fide and bad faith has legal significance for resolving the issue of acquiring property rights by acquisitive prescription (see commentary to Article 234 of the Civil Code), as well as for calculating calculations of income and expenses between the plaintiff (owner) and the defendant (illegal owner) upon satisfaction of a vindication claim (see commentary to Article 303 of the Civil Code). The question of the good faith of the legal owner has no legal significance.

5. The fifth (species-forming) feature of the right of ownership is the presence of the authority to dispose of a thing, which is generally described in paragraph 2 of the commented article. An order is a legally secured opportunity to determine the fate of a thing (sale of a thing, putting it as collateral, transferring it to the authorized capital of a business company, combining property for joint activities, etc.). The concepts of disposal of a thing and its alienation are correlated as genus and type: not every disposal is associated with alienation. For example, transferring a thing for temporary use (lease) is its disposal, but not alienation. However, any alienation is an act of disposal of a thing.

In judicial practice, the question often arises about the validity of a contract for the sale and purchase of a thing, if at the time of its conclusion the seller was not its owner. Such an agreement should not be declared invalid on the basis of this fact alone. The seller has the right, in pursuance of the purchase and sale agreement, to purchase the item after its conclusion, and then alienate it to the buyer.

Forms of disposal of a thing also include its destruction and renunciation of ownership rights to it. For the destruction (destruction) of a thing, see the commentary. to Art. 235 Civil Code.

6. Paragraph 2 of the commented article reveals the sixth (species-forming) feature - the exercise of the owner’s powers in the most complete manner, in his own interest and at his own discretion. Possession, use and disposal of a thing constitute the triad of powers of the owner and determine the content of the right of ownership. However, the same powers are inherent, for example, in the obligatory right of trust management or the limited real right of economic management. Possession and use as powers of real rights are always conditioned by the presence of an interest in the subject of this right.

The concept of one's own discretion can be defined as a lawful activity in choosing the most optimal option for implementing the granted powers. It is indicative that, according to the Civil Code of 1964, the owner’s powers to own, use and dispose of property were exercised “within the limits established by law” (Article 92). It should be considered an achievement of the current Code to shift emphasis to the possibility of the owner exercising powers primarily at his own discretion.

7. At the same time, the right of ownership is not unlimited. A conflict between the individual interests of the owner and public order is inevitable in cases where ownership, use (and in some cases even non-use: for example, an agricultural land plot for three years - Chapter VII of the Land Code) and disposal of a thing lead to a violation of the rights and legitimate interests of third parties. The right of private property does not belong to those rights that, in accordance with Art. 56 of the Constitution are not subject to restrictions under any circumstances (Resolution of the Constitutional Court of December 17, 1996 N 20-P “In the case of verifying the constitutionality of paragraphs 2 and 3 of part one of Article 11 of the Law of the Russian Federation of June 24, 1993 “On the federal tax police authorities” "(SZ RF. 1997. N 1. Art. 197)).

The main motives for establishing restrictions on property rights today are an understanding of the limited nature of natural resources (including land), a shortage of housing, reducing the consequences of using sources of increased danger, compliance with fire, sanitary and other safety rules, the inadmissibility of violating the rights and legitimate interests of others, and eliminating competition or creating a serious threat to morality in society.

8. It follows from paragraph 2 of the commented article that restriction of property rights is possible by adopting a law or other legal act. At the same time, according to the general rule of paragraph 2 of Art. 1 of the Civil Code, restrictions on civil rights can only be introduced by federal law. Taking into account the supreme legal force of clause 3 of Art. 55 of the Constitution, the right of ownership can only be limited by federal law (see also paragraph 1 of the Supreme Arbitration Court Resolution No. 8).

True, the right of ownership may be limited by these acts in the manner prescribed by federal law. Thus, restrictions on the ownership of vehicles (for example, the List of faults and conditions under which the operation of vehicles is prohibited) are established by the Road Traffic Rules of the Russian Federation (approved by Resolution of the Council of Ministers - Government of the Russian Federation of October 23, 1993 N 1090). However, these restrictions are sanctioned by the Federal Law of December 10, 1995 N 196-FZ “On Road Safety” (SZ RF. 1995. N 50. Art. 4873).

At the same time, restrictions on property rights, even those established by federal laws, have limits. The right of ownership may not be limited arbitrarily, but only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (Articles 34, 36 , paragraph 3 of article 55, article 56 of the Constitution, paragraph 2 of article 1 of the Civil Code).

9. The right of ownership cannot be limited by an agreement between the owner and any person. The interest of the person to whom the owner must transfer the property is ensured not by restrictions on the right of ownership, but by the obligations arising for the owner (for example, the obligation not to interfere with the use of the thing in accordance with the terms of the contract). The only way to “punish” him for deviating from the agreement will be to bring him to justice provided for by the agreement or, if there are grounds, by law.

10. It is necessary to understand how the emergence of a limited property right affects the scope of property rights. In this case, the right of ownership is, as it were, compressed, since the rights of ownership and use, by definition, are transferred to the subject of limited property rights. The right of ownership itself becomes, in fact, a limited property right until the transferred property rights return to the owner. If the power of disposal also passes to the subject of a limited real right, then the right of ownership generally acquires the character of a so-called bare right (ius nudus). At the same time, the owner of a thing, by definition, cannot be the subject of a limited property right to it.

10. The seventh (species-forming) feature of property rights is that it is perpetual, since it is not limited by law or contract to any period.

11. In the literature one can find different approaches to determining property rights, the main ones of which are the following two, opposite to each other.

Thus, in the definition of property rights, some authors propose to include a larger number of powers than is provided for by the traditional triad of possession, use and disposal in our legislation. However, upon a more detailed analysis, it turns out that the other listed “superpowers” ​​of the owner are only shades of the three traditional powers and fit well into the definition of property rights given above.

Sometimes, on the contrary, it is pointed out that it is useless and even harmful to include the triad of powers in the definition of property rights, since it contradicts the completeness of this right. However, there is no contradiction in this case. Firstly, the triad is formulated so successfully that it includes any possible options for the owner’s actions, and at the required level of abstraction. Secondly, the definition of property rights in the commented article includes not only a triad, but also an indication of one’s own discretion.

12. Clause 3 of the commented article contains in general terms the legal regulation of property relations in land and other natural resources. When applying this paragraph, the provisions of special legislation should be taken into account: Ch. 17 of the Civil Code, LK, ZK, Water Code, Law on the Turnover of Agricultural Land, Law on Environmental Protection, Law on Environmental Expertise, etc. (see also commentary to Article 129 of the Civil Code).

13. As mentioned above, self-interest does not occur in rights of obligation. Thus, the trustee, in accordance with paragraph 1 of Art. 1012 of the Civil Code exercises these powers purely in the interests of the owner or a third party (beneficiary) indicated by him. To emphasize the difference between ownership and trust management, the legislator specifically indicated in paragraph 4 of the commented article that the transfer of property into trust management does not entail the transfer of ownership to the trustee.

Securing the ownership of things (property) to the subjects of real rights, regulating the powers of these subjects regarding these things and establishing responsibility for their violations.

Property law (in the subjective sense) - the right of a specific subject to own, use and dispose of this property.

Comment

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Property law can also be distinguished as a sub-branch of civil law, but in this material property law is not considered in this sense.

Property and obligations law

In civil law, it is traditional to classify legal relations according to the method of satisfying the interests of the authorized person into the following types:

1. real:
   • the interest of the authorized person is satisfied through his own actions: the owner owns, uses and disposes of his property, the obligated persons refrain from violations - do not act;
   • are proprietary, absolute;
2. obligatory:
   • the interest of the authorized person is satisfied through the actions of the obligated person: the buyer’s interest in receiving the goods is satisfied by the actions of the seller in transferring the goods;
   • are property (however, a number of scientists also allow non-property obligations), relative.

Characteristic features (signs) of property rights:

• absolute nature of protection(its bearer corresponds to the obligation of an indefinite number of persons to refrain from violating the property rights of this person);
• register the belonging of things to certain subjects(difference from rights of obligation that formalize the transfer of things and other objects from one entity to another);
• their inherent right of succession(in case of transfer of a property right to another person (legal successor), the encumbrances of this right are also transferred);
• the object of real rights is only individually defined thing(accordingly, things defined by generic characteristics, as well as objects of intellectual property, cannot serve as objects of property rights);
• the range of real rights (as opposed to obligations) is exhaustively outlined in the Civil Code (Articles 209, 216, 292, 334 of the Civil Code of the Russian Federation), or other federal law;
• proprietary rights are protected by special methods of protection.

Thus, property law is a subjective civil right that is absolute in nature, has a specific object and methods of protection, and includes, in addition to the rights of ownership, use and disposal of a thing (all together or separately), the right to follow.

Types of real rights

Property rights can be divided into two groups:

1. 1. property rights (includes possession, use, disposal);
   2. limited real rights (rights to other people's things - possession and use).

Ownership in an objective sense - a set of civil law norms that regulate and protect the state of ownership of material goods by specific individuals.

In other words, this is a set of legal norms regulating relations regarding the appropriation and ownership of material goods to a certain person or persons, the exercise by the owner of the powers of ownership, use and disposal of a thing by his own will and in his own interest, regardless of other persons.

Ownership in a subjective sense - a measure of the owner’s possible behavior; This is the legally secured ability of the owner to own, use and dispose of the thing belonging to him.

Limited property right - this is the right of a non-owner, in one way or another, limited by law, to use someone else’s, usually immovable, property in his own interests without the participation of the owner of the property (and sometimes even against his will). Art. 216 of the Civil Code of the Russian Federation includes:

• right of lifelong inheritable ownership of a land plot ();
• the right to permanent (indefinite) use of a land plot ();
• easements (Articles 274);
• right of economic management of property ();
• the right to operational property management ().

Concept, content and types of property rights

Property rights concept

Ownership can be considered in an objective and subjective sense.

Ownership (in the objective sense) : a set of legal norms regulating relations regarding the appropriation and ownership of material goods to a certain person or persons, the exercise by the owner of the powers of ownership, use and disposal of a thing by his own will and in his own interest, regardless of other persons.

Otherwise, as a legal institution, a set of legal norms, a significant part of which, having a civil legal nature, is included in the sub-branch of property law.

Ownership (in the subjective sense) - the possibility of certain behavior permitted by law to an authorized person. From this point of view, it represents the broadest real right in content, which enables its owner - the owner, and only him, to determine the nature and directions of use of things belonging to him, exercising complete economic dominance over them and eliminating or allowing other persons to use them.

Thus, we can say that the right of ownership as a subjective civil right is the ability of a person, enshrined in law, to own, use and dispose of his property at his own discretion, while at the same time taking on the burden and risk of its maintenance.

In Art. 209 of the Civil Code, the powers of the owner are revealed using the “triad” of powers traditional for Russian civil law:

1. possessions;
2. use;
3. orders.

Power of possession - based on the law (i.e. legally enforceable) opportunity actually have this property, maintain it in your household (actually own it, list it on your balance sheet, etc.).

Right of use represents the legal possibility of exploitation, economic or other use of property through extracting beneficial properties from it, its consumption. It is closely related to the right of ownership, because in most cases you can use property only by actually owning it.

Power of disposal means a similar possibility determining legal fate property by changing its ownership, condition or purpose (alienation by agreement, transfer by inheritance, destruction, etc.).

The main thing that characterizes the powers of the owner in Russian civil law is the ability to exercise them at his own discretion (clause 2 of Article 209 of the Civil Code), i.e. decide for yourself what to do with the property you own, guided solely by your own interests, performing any actions in relation to this property that do not, however, contradict the law and other legal acts and do not violate the rights and legitimate interests of other persons. This is the essence of the owner’s legal power over his property.

However, the current legislation, having granted the owner the above powers, also establishes the limits of their implementation (for example, the owner of a residential premises can use it only for its intended purpose, etc.).

For the disposal of property, see also reflections R. Bevzenko

Limits of ownership represent the boundaries established by law for the exercise of property rights.

Types of property rights

1. Depending on the form of ownership:
   • private property right, which includes the property right of citizens and the property right of legal entities (in turn, the property right of legal entities covers the property of various organizations);
   • state property right, which consists of federal property rights; property rights of the subjects of the Federation; property of the republic; property of the Autonomous Okrug;
   • municipal property right, which includes the property rights of the city and the property rights of other municipalities.
2. Depending on the number of copyright holders:
   • property right belonging to one person;
   • property right belonging to two or more persons(including the right of shared and joint ownership).
3. Depending on the type of property:
   • ownership of movable property;
   • ownership of real estate.

Official text:

Article 209. Contents of the right of ownership

1. The owner has the rights to own, use and dispose of his property.

2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.

3. Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law (Article 129), is carried out by their owner freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.

4. The owner can transfer his property into trust management to another person (trustee). The transfer of property into trust management does not entail the transfer of ownership rights to the trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.

Lawyer's comment:

This article reveals the provisions characterizing the content of property rights. The most characteristic features of property rights, which distinguish it from other civil rights, are as follows:

1) the right of ownership is an initial subjective right that directly follows from the law. There are no other subjects of law between the law defining the powers of the owner and the owner. The latter only oppose the owner as persons obligated not to violate his property rights. The right of ownership is a real right;

2) the right of ownership in its content represents the most complete property right provided for by civil law. It is based on the principle of permission to perform any actions not prohibited by law;

3) the right of ownership is valid for the entire time that the corresponding property that is its object continues to exist;

4) for property rights there is a principle: one thing - one owner (several owners combined with each other). All other real rights to a thing are of a nature dependent on the right of ownership. They can exist only insofar as there is their basis - the right of ownership;

5) the right of ownership has an exclusive nature: it excludes all other persons from the exercise of powers belonging to the owner.

The object of ownership is property. We are talking about property that is available for the duration of the ownership right and which can be individualized and appropriated by the owner, to the exclusion of all other persons from possessing it. Therefore, for example, outer space, the Sun, other celestial bodies not mastered by man, atmospheric air are not considered as property that can be the object of property rights. For the same reason, it is very doubtful to classify the animal world as an object of state property rights as a set of living organisms of all species that permanently or temporarily inhabit the territory of the Russian Federation and are in a state of natural freedom.

Objects of property rights cannot leave the owner’s possession against his will, except in cases expressly specified in the law. This necessary condition is missing in many wild animals, which are free to migrate from one country to another. Wild animals can be the object of property rights in cases where they live in closed natural areas protected by the state (reserves, etc.), or when they are removed from their natural habitat. With the development of science and technology, the range of objects that can be objects of property rights is constantly expanding.

In terms of its composition, property, which is the object of property rights, consists of things and individual property rights specified in the law. The property that constitutes the object of property rights is narrower than the concept of property that can be the object of civil rights (). It does not include future things and many property rights that act as objects of rights in obligations.

As for property rights that are objects of property rights, then, according to the Civil Code of the Russian Federation, property rights embodied in securities are considered such. These property rights provide their owners with direct access to material assets: funds, investments, goods. The law does not contain prohibitions in relation to other property rights that can act as objects of property rights. The foregoing does not apply to the results of intellectual activity (intellectual property), since they do not relate to objects of ownership of property subject to Section 2 “Ownership and other property rights” of the Civil Code of the Russian Federation.

Article 209 of the Civil Code of the Russian Federation defines the rights (more precisely, powers) included in the content of property rights, and the methods of their implementation. Paragraph 1 indicates the fundamental rights that constitute the content of property rights in their static state. This is the right of ownership, i.e. the owner’s right to possess the property belonging to him, the right to use, i.e. the owner’s right to extract and appropriate the useful properties of the property, and the right to dispose, i.e. the right to determine the legal fate of the property (sale, lease, use by the owner himself, etc.). At the same time, these rights mean the opportunities provided to the owner to exercise these rights, but not the actual actions themselves related to the exercise of ownership rights.

The list of rights included in the content of property rights given in paragraph 1 of Article 209 is not exhaustive. It can and should also include other rights, primarily the right of management and the right of control. As society develops economically, the content of property rights does not remain unchanged. Evidence of this is the aforementioned right of management and the right of control, which are becoming of great importance in the modern period, when the management of property, especially enterprises owned by owners, passes into the hands of professional managers. Paragraphs 2 and 4 of Article 209 reveal ways to exercise the rights belonging to the owner, primarily the right of disposal. The list of these methods is not exhaustive.

When characterizing them, three circumstances must be taken into account.

Firstly, the owner has the right to exercise his rights at his own discretion. He is not bound by the will of other persons in choosing and taking actions in relation to his property, which distinguishes him favorably from subjects of other real rights to this property.

Secondly, the range of actions that the owner can perform to exercise his rights is limited only by the framework established by law or other legal act. At the same time, the provision of paragraph 2 that he can transfer to other persons, while remaining the owner, the rights to own, use and dispose of property, is questionable. In reality, we are talking about the transfer of property into the possession, use and disposal of other persons, the boundaries of which are determined by the owner, but not the right itself as the possibility of ownership, use and disposal of property belonging to him. Otherwise, upon transfer of all these three rights, he is deprived of ownership rights.

Thirdly, two types of restrictions are provided for in the area of ​​exercising property rights. Actions performed by the owner must not contradict the law and other legal acts, for example, not violate fire safety requirements. Actions performed by the owner must also not violate the rights and legally protected interests of other persons, for example, the right to use property by the tenant, transferred by the owner under the lease agreement.

Paragraph 4 of Article 209 separates into a separate category the actions of the owner to transfer his property into trust for another person. This is explained by the fact that trust management at the legal level is being introduced into the sphere of civil circulation for the first time. Paragraph 3 of Article 209 confirms the rule that in relation to the ownership, use and disposal of land and other natural resources, general rules of civil law, including property rights, apply, subject to the inclusion of these objects in circulation by the relevant laws on natural resources (

1. The owner has the rights to own, use and dispose of his property.

2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.

3. Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law (Article 129), is carried out by their owner freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.

4. The owner can transfer his property into trust management to another person (trustee). The transfer of property into trust management does not entail the transfer of ownership rights to the trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.

Comments on Article 209 of the Civil Code of the Russian Federation

1. Section II of the Civil Code of the Russian Federation is devoted to the right of ownership and other property rights. Property rights have certain general characteristics, which make it possible to distinguish them into a separate category of rights. The essence of real rights is the ability of the owner of such a right to influence a thing, to receive benefit from it at his own discretion and of his own free will, in addition to any other persons. We can say that property rights give a person power directly over a thing. In theory, a rather complex scheme is sometimes constructed that supplements this power with the obligation of an indefinite number of third parties to refrain from violating property rights. This is done in order to avoid the idea of ​​real rights as an actual relation to a thing, which contradicts its social nature. However, this construction seems unnecessary. Firstly, any right cannot be violated by third parties. Consequently, this prohibition in itself is not able to reflect the essence of a particular right and cannot be a distinctive feature of a particular category of rights. Secondly, power in relation to a thing, which constitutes the essence of property rights, is not a connection with a thing, but a socially determined relationship, because both the thing itself and the method of influencing it are determined not by physical (technological) parameters, but by social, economic, legal . In other words, property law is not just power over a thing, but legal power.

The holder of a property right can exercise this right independently of other persons. The most important property right is the right of the owner. Property rights of persons who are not owners are rights derived from and dependent on the right of ownership, arising at the will of the owner or as directed by the law and exercised within the limits established by the agreement with the owner or the law (see Article 216 of the Civil Code of the Russian Federation).

2. The real right belonging to the subject (subjective real right) is characterized by a number of characteristics.

First of all, it is an absolute right. This means that it opposes all other persons, is directed against everyone, and excludes all other persons in relation to the thing. A particular manifestation of the absoluteness of property rights is that the same right to a thing cannot belong to more than one person: all other persons are excluded from this right. In the case when several persons have a real right to one thing (for example, the right of common ownership), they act in relation to this thing as one person.

Obligatory rights differ from absolute real rights. The right of obligation, which consists in the right of claim against a specific person, is always relative and is exercised only in relation to this obligated person.

The relative nature of the law of obligations predetermines the method of its implementation - by filing a claim against the debtor. The method of transferring this right is also different - by way of assignment (Article 382 of the Civil Code of the Russian Federation). The assignment involves the participation of the parties to the obligation - the creditor and the debtor. For example, the tenant's right, which is obligatory, despite the increased protection of the tenant in the form of the right of succession (see paragraph 3), can be transferred to another person only by assignment, while real rights are transferred in a different way (Article 223 of the Civil Code of the Russian Federation).

The law of obligations is not characterized by exclusivity: the obligated person may have the same or similar obligations in relation to other persons, as a result of which institutions such as a competition of creditors arise, when several persons have homogeneous claims against the debtor. Since the rights of obligation bind only two parties - the creditor and the debtor, the parties have the right to define their relationship at their own discretion. Therefore, rights of obligation can vary endlessly in their content. Property rights acting against everyone cannot be different for the same reasons.

Property rights are established by law (Article 216 of the Civil Code of the Russian Federation, etc.).

3. The subject of real rights cannot change the nature (type) of the right for himself, but can only renounce the right unilaterally.

The property right has such a quality as the right of succession. This quality is one of the most important and characteristic properties of property law. Its essence is that whoever has a thing, the right to it is retained by the subject of this right until he has expressed his will to alienate it. Even if a thing passes to the next owner as a result of a transaction, the property right to it continues to follow it.

However, in cases where the normal order of circulation of a thing is violated and the thing is acquired in the order of initial rather than derivative acquisition (see commentary to Article 218), the property rights existing in the thing are also lost.

4. The object of real rights is an individually defined thing. This property of a thing, like its other properties - divisibility, consumability, etc., is determined not so much by the physical qualities of the thing as by the views of circulation, i.e. economic and legal parameters.

The same thing may or may not have the characteristics of an individually defined thing, depending on the specific legal situation. For example, 100 tons of oil are not an individually defined thing and cannot be the object of property rights. But if 100 tons of oil are placed in a known storage facility, then a proprietary right to them may already arise.

As an example of an individually defined thing, works of art (paintings, sculptures, etc.) are usually given. However, even in this case, the legal qualification of a thing depends on the specific situation. For example, if a designer undertook under an agreement to create an interior to place 10 paintings in it, executed in an abstract manner, then we are talking about generic things, even if the author or authors chosen by the parties are indicated (except for the case when the specified author has no more than 10 paintings in total ).

The nature of the object of law follows from the essence of the law itself and from the method of its protection, which is also predetermined by the nature of the law. It is clear that the subject of real rights cannot extend his power to a thing that is not individually determined, i.e. is not distinguished in one way or another from other things of the same kind. He cannot exclude other persons from a thing if it is unclear what kind of thing it is. And if a thing is lost, it is impossible to claim it through proprietary means of protection (see commentary to Articles 301 - 305), since it is impossible to determine where it is located or whether it exists at all.

5. The right of rem is valid as long as there is an individually defined thing that is the object of the right; the right of obligation is valid as long as there is a debtor or his successor. Just as the destruction of a thing or the loss of its individuality terminates the property right, so the death of the debtor in the absence of legal successors terminates the obligatory (personal) right. A qualified way to terminate a personal obligation is bankruptcy, which has the same consequences as the death of the debtor; at the same time, bankruptcy does not affect the property rights to the debtor’s property.

6. In judicial practice, the question of the object of property rights acquires special significance when the method of protecting the right is discussed. For example, it has been repeatedly emphasized that a statement of claims for the right to a certain quantity, expressed in square meters of area, tons, etc., cannot be qualified as a claim in rem, since it is impossible to determine the individually defined thing that the plaintiff claims.

Most often, such conflicts arose due to disputes regarding the execution of agreements on shared participation in construction. If a construction participant, referring to his right to a share in the common property, makes a demand for the allocation of space in a house under construction, indicating his requirements in the amount of this area, i.e. in square meters, then such a requirement cannot be satisfied, since there is no object of property rights. Such an object can only be a building or part of it. Therefore, the stated real claims in square meters are rejected by the courts.

Share participation agreements, when they have the nature of simple partnership agreements (joint activities), lead to the emergence of common property. In this case, the participant’s claim for recognition of his right can only be expressed as a claim indicating a share in the form of a fraction in a specific building. Individualization of the object of law is achieved here by indicating a specific structure. But even in this case, it is unacceptable to state a requirement expressed in the form of the size of the area or the amount of investment. Even if the total area of ​​the entire building is known, the plaintiff must indicate his right by indicating the share calculated as a fraction. The court does not have the right to carry out such calculations and specify the stated claim in this way.

7. Such an object of law as securities in uncertificated form has certain specifics. If securities (but, of course, not the rights enshrined in them) in documentary form are the object of real rights, then this cannot be said about securities in non-documentary form. At their core, they are an expression of rights of obligation. At the same time, the circulation of these rights is given some properties of the circulation of things, in particular, the courts provide protection to bona fide purchasers of securities, even in the event of invalidity of transactions in relation to these securities (Article 302 of the Civil Code of the Russian Federation). Holders of rights to uncertificated securities are called owners, although they do not exercise possession as physical power over a thing. On the contrary, the very category of ownership of a thing is opposed to the right to a thing precisely on the basis that in the first case we are talking about actual domination over a thing, and in the second - about legal domination. The owner of a security who has the right to the security, i.e. possessing legal power does not meet the general concept of owner. Therefore, one should come to the conclusion that in relation to uncertificated securities, the term “ownership” acquires a specific meaning that excludes the automatic application to it of the rules of the Civil Code of the Russian Federation on ownership (Articles 305, 234, etc.). The same can be said about the nominee holder of an uncertificated security. In contrast to the concept of holding known to classical law - non-independent possession of a thing for another person, here only the property of performing actions in someone else’s interest remains. At the same time, the specificity of the turnover of securities affects the removal of the holder of the right from disposing of the securities until the nominal holding is terminated.

For example, a joint-stock company filed a claim against the registrar, demanding registration of a transfer order for the transfer of uncertificated shares made by their owner, although the nominal holder on whose personal account the shares were located did not give such an order. The court granted the claim. The higher court overturned the decision, indicating that in addition to the nominal holder, other persons who do not have these shares in their personal account, including the owner of the shares, do not have the right to make a transfer order to transfer the shares.

Obviously, the regime of the right to uncertificated securities does not allow this right to be classified as a property right. In addition, uncertificated securities themselves may become depersonalized in circulation and lose all signs of an object of property rights. The main way to individualize a thing that has only generic characteristics (namely, such things include uncertificated securities that have a face value, information about the issuer and issue, assigned at once to a certain set of essentially identical securities) is separation by ownership (separate storage, placement of marks , packaging, etc.). In relation to securities, such methods, other than crediting to the owner’s personal account, are not applicable. But as soon as the papers enter circulation, they are depersonalized, and with a certain minimum number of transactions associated with the transition through several personal accounts, they lose their individuality. From this moment on, the application of the norms of Section. II Civil Code of the Russian Federation, even by analogy, becomes impossible.

8. The question of the owner’s right to money also remains difficult in legal theory. Money is named Art. 128 of the Civil Code of the Russian Federation among things. Money is a thing, since we are talking about paper, metal money (coin). In relation to these things, if they are individualized (for example, placed in a safe), ownership rights arise with the properties inherent in property law. In particular, the destruction of money entails the loss of ownership of it. At the same time, the law limits the possibilities for reclaiming money from someone else’s illegal possession (Clause 3 of Article 302 of the Civil Code of the Russian Federation).

However, in the modern economy, the development of relations regarding money has led to the emergence of so-called non-cash money. Although non-cash money is obviously replacing cash in circulation, its legal nature remains controversial. In any case, the right to receive money held in a current account at a credit institution and other similar rights to funds are subject to the regime of rights of obligations, since the exercise of these rights depends on the debtor (credit institution), including on his creditworthiness. At the same time, non-cash money cannot die physically, like things.

Although money, as well as funds, cannot be the subject of pledge (see: Vestnik VAS RF. 1996. N 10. P. 69), many lawyers believe that the right to funds belonging to a person under a bank deposit agreement may be subject to assignment like other rights of obligation. The subject of the assignment may also be the right to claim against a credit institution for the release of the account balance after termination of the bank account agreement. All this also allows us to assume that funds held by a credit institution (non-cash money) are not things and do not belong to their owner by property right.

9. The special value of property rights and its central position among property rights are predetermined by the fact that property is the main condition for the realization of a person’s economic and creative abilities. Without receiving free access to things, ensured by all legal order, a person is deprived of the opportunity to ensure his existence and satisfy his needs. The most free attitude towards things, unconstrained by someone else's will or external conditions, is responsible for the development of a person's abilities to the greatest extent. It is this relationship that is ensured by the right of ownership.

The right of ownership is the most free right of a person to a thing, the most complete real right.

10. Property rights have the property of elasticity. This means that as soon as any restrictions on the right established by the owner in favor of other persons who have received the right to the same thing disappear, the ownership right is immediately restored in full without any additional legal acts.

At the same time, there is no reason to talk about the restoration of property rights as a result of the recognition of a transaction on the alienation of a thing as invalid; the fact is that the fiction that makes one believe that there was no transaction allows one to come to the conclusion that the right did not disappear. However, since we are talking about a thing, the effect of this fiction is limited to the state of the thing itself. By the time the transaction is declared invalid, the thing may be lost, destroyed, or recycled. This also follows from Art. 167 of the Civil Code of the Russian Federation, which provides for the case of impossibility of returning an item. Thus, the recognition of a transaction as invalid does not in itself mean the restoration of the right to the thing.

What should be distinguished from the situation of restoration of a right is the return by the owner (another holder of a property right providing for ownership) of previously lost possession of a thing: in this case, the right itself was not limited in any way in favor of certain persons, but the possibility of its actual implementation was lost.

11. Ownership is indefinite. Limiting the right of ownership to a term would thereby mean limiting the rights of the owner, turning the right of ownership into an incomplete, limited one, which would conflict with the essence of this right.

As for obligatory rights to a thing, although they allow one way or another to use the thing, they are always dependent on the will of the debtor and urgent, i.e. always limited to a known period. Outside its boundaries, the use of a thing loses the sanction of the owner and becomes illegal.

12. Since the establishment of the system for registering ownership and real rights to real estate, the division of things into movable and immovable has acquired cardinal importance (see commentary to Articles 130, 131).

13. The law, following the tradition that has developed in domestic law since the 19th century, establishes that the owner has the rights to own, use and dispose of property.

In this case, possession is understood as the exercise of physical power over a thing, for example, living in a residential building, guarding another piece of real estate, etc. Use is the extraction of useful properties from a thing, for example, reading books from a personal library, driving your car. The owner himself determines what the use of this or that thing is, and any of his handling of the thing, as long as it does not contradict the law, is considered as use. Disposal is, first of all, the execution of various transactions with a thing, changing the legal relationship to the thing of the owner and giving rights to the thing to other persons, including the alienation of the thing, i.e. transfer of ownership of it to another person. The order is the destruction of a thing, as well as other actions that entail the loss of the thing’s essence - consumption (for example, fuel), processing. As a result of transactions and other administrative acts of the owner, the legal fate of the thing changes.

14. The indication in the Law of the rights of ownership, use and disposal of a thing by the owner cannot be understood as the exhaustion of the entire right of ownership by these powers, as well as the splitting of the right of ownership into three or another number of powers. The right of ownership is a single, integral right and does not break down into any finite number of powers. The law speaks specifically about the right of ownership, and not about the individual powers of the owner.

This circumstance should be kept in mind when qualifying transactions regarding things. By transferring a thing to other persons on one or another right (lease, trust management, commission, etc.), the owner does not transfer his ownership rights to them - neither in whole nor in part. Therefore, although the tenant owns and uses the thing received under the contract, this cannot mean that he received the rights of possession and use from the owner. The rights of the tenant consist of certain rights of claim against the owner (Article 307 of the Civil Code of the Russian Federation), and the owner at the same time retains the fullness of his rights; It is precisely the existence of the right of ownership that ensures the tenant’s interest in the owner accepting certain property obligations to him. After all, only the obligations of the person who retains full right to the property ensure the property interests of the one who intends to use this property in one way or another.

The erroneous impression that when concluding contracts regarding a thing, the owner allegedly transfers his powers and thereby loses them, can lead to serious practical errors. In particular, one can often come across a position according to which, when a thing is transferred to a commission, the owner loses the right to dispose of it, or one that when a thing is seized with its simultaneous confiscation, the right of ownership disappears completely, since the owner is deprived of the opportunity to both possess and use, and orders.

In fact, in these cases, the right of ownership still belongs to the owner, and his capabilities in relation to his property are determined by contract, and in this case these are personal obligations to the owner of the thing or the law, which continues to consider him precisely as the owner, providing him with other things and legal remedies for property protection against violators.

15. The erroneous idea that the right of ownership is reduced to the mentioned three powers of the owner also leads to the incorrect conclusion about the existence of a real right of ownership, distinct from the right of ownership. In fact, such a right is unknown to the law. And the point is not only that it is not specified in Art. 216 of the Civil Code of the Russian Federation.

As already mentioned, the owner owns all the rights to the thing. Isolating any separate powers in this right does not make any sense, since both the implementation and protection of the right depend only on the will of the owner, which can only be limited by law. Thus, the preliminary allocation of one or another power as part of the right of ownership is not only devoid of practical meaning, but will also, in one way or another, lead to its limitation, which conflicts with the unlimited nature of this right.

As for the possession of a thing carried out by other persons connected with the owners by an agreement regarding the thing, such possession is carried out by virtue of a personal obligation assumed by the owner. Obviously, such a right to a thing is not proprietary.

Finally, possession exercised within the framework of a limited property right (see commentary to Articles 216, 305) does not exist in itself, but is the content of the corresponding property right and, therefore, cannot be considered a separate subjective civil right.

Illegal possession, i.e. possession without a legal basis, which is not carried out at the will of the owner, is not a subjective right even in the case when he is provided with protection (see commentary to Article 234).

In the same way, there are no proprietary rights of use and disposal.

16. In paragraph 4 of Art. 209 emphasizes that the transfer of property into trust management does not entail a transfer of ownership, although the trustee can own, use and dispose of the thing. Thereby, it is again emphasized, as in paragraph 2 of Art. 209 that the rights arising in another person by virtue of an agreement on the transfer of a thing are not identical either to the right of ownership as a whole or to its parts, if such parts can be separated. When transferring a thing under a contract, the owner continues to retain the fullness of his right until the thing is alienated by him. The Civil Code of the Russian Federation does not recognize incomplete, split property rights. Thus, the norm is clause 4 of Art. 209 of the Civil Code of the Russian Federation emphasizes the incompatibility of split property structures, including those arising on the basis of the Anglo-American trust, with Russian private law.

17. The right of ownership is the most complete property right. This is done at the discretion of the owner. However, like any right, it can be limited by law (clause 2 of article 1 of the Civil Code of the Russian Federation).

When exercising property rights, the owner must act in such a way as not to conflict with the law and other legal acts and not to violate the rights and interests protected by law of other persons. We are talking about compliance with various special rules - fire safety, sanitary, etc. In this case, the burden of proving a violation of the rights and legitimate interests of other persons rests with the victims. The owner is not required to prove the legality of his actions to exercise ownership rights.

18. In the practice of the European Court of Human Rights in Strasbourg, the issue of the state’s right to restrict property rights has been repeatedly raised. These questions arose in cases of seizure of land for public needs, in relation to the tax and customs obligations of the owner. The general conclusion can be considered that the state has the right to limit property rights based on public interests. However, a balance of private and public interests must be maintained.

How difficult it is to find such a balance can be seen, in particular, in the case of James v. Great Britain. The plaintiffs challenged the law according to which tenants who received in the 19th century. the right to lease and develop in central London for 99 years; upon expiration of the lease, they received the right of compulsory purchase from the owners of the occupied property at a nominal cost. The controversy was made more acute by the fact that some tenants, having purchased the property, sold it to third parties at a price many times higher than the purchase price. The European Court of Human Rights has recognized that, although there is government interference with property rights, it can be justified by a substantial public interest. At the same time, the practice of the Italian authorities, which by government decrees granted many years of deferrals for the eviction of tenants from rented residential premises, was recognized by the European Court as unjustified, violating the balance of public and private interests and infringing on the rights of owner-landlords.

19. An agreement between the owner and any person cannot be a restriction on the right of ownership. Such an agreement does not affect or limit the right of ownership. The interest of the person to whom the property is transferred is ensured not by restrictions on the right of ownership, but by the obligations assumed by the owner, in particular, the obligation to provide the thing in proper condition, not to interfere with its use in accordance with the terms of the contract, etc. Thus, it is the completeness of the ownership rights of the obligated person (debtor) that is the means of ensuring the interests of the owner (creditor).

1. The owner has the rights to own, use and dispose of his property.

2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.

3. Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law (Article 129), is carried out by their owner freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.

4. The owner can transfer his property into trust management to another person (trustee). The transfer of property into trust management does not entail the transfer of ownership rights to the trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.

Comments to Art. 209 Civil Code of the Russian Federation

The right of ownership, along with other real rights, is characterized as exclusive and absolute, while in its content it is the most complete. The content of the subjective right of ownership in domestic civil law is usually revealed through a triad of powers: possession, use and disposal.

The right of ownership is a legally enforceable possibility of actual control over property.

The right to use is exercised by the owner extracting its useful properties from the property in his own interests. As a general rule, the owner owns the products, fruits and income received as a result of the exploitation of the property.

An order is a power, the implementation of which is aimed at determining the legal fate of property. As a rule, it is carried out through civil transactions, but can also be expressed in the commission of unilateral actions that do not give rise to obligations of third parties, for example, such as the destruction of property.

The composition of legally significant acts of behavior of a subject of property rights is specified in Part 2 of Article 209 of the Civil Code of the Russian Federation, which contains an approximate list of possible methods of use and disposal. These include alienation by way of purchase and sale, transfer of rights of ownership and use (mainly under a lease agreement), will, etc. In the same context, the right of the owner, provided for in Part 4 of Article 209, to transfer his property into trust management should be considered.

At the same time, the main imperative requirement for the implementation of any of the powers is the inadmissibility of violating the rights of third parties. In relation to such objects of property rights as land and natural resources, a requirement has been established to ensure the preservation of the environment during their use. In addition, it is possible to legislatively limit the possibility of free disposal of these types of property by limiting their circulation.