Article 3 of the Labor Code of the Russian Federation with comments. Theory of everything

New edition Art. 20 Civil Code of the Russian Federation

1. The place of residence is the place where a citizen permanently or primarily resides. A citizen who informs creditors, as well as other persons, about his other place of residence bears the risk of the consequences caused by this.

2. The place of residence of minors under fourteen years of age or citizens under guardianship is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians.

Commentary to Art. 20 Civil Code of the Russian Federation

1. Like a citizen’s name, his place of residence makes it possible to definitely individualize subjects of civil law, including in cases, for example, of complete coincidence of last name, first name and patronymic. Besides, civil law often connects a person’s place of residence (as well as the location legal entity) with the geographical territory of legal relations. Thus, a citizen’s place of residence is taken into account in hereditary relations, when fulfilling obligations, etc.

2. The commented article does not connect the determination of a citizen’s place of residence with the norms of housing and administrative legislation, however in controversial situations it is very important to consider the location registration accounting(previously - registration), and the nature of the living space (house, apartment, etc.). The basic rating categories “constantly” and “predominantly” have generally accepted meanings and are easy to interpret. It is logical and natural for civil law to place minors and other incompetent citizens the place of residence of their legal representatives is recognized in civil rights about relationships.

3. The right to choose a place of residence is also a personal non-property right of a citizen protected by the court (see commentary to Article 150 of the Civil Code of the Russian Federation).

Another comment on Art. 20 of the Civil Code of the Russian Federation

1. Article 27 of the Constitution of the Russian Federation proclaims the right of everyone who is legally present in the territory Russian Federation, move freely, choose a place of stay and residence. Free choice of place of residence is one of the essential rights person provided Universal Declaration human rights (Article 13). The right to free movement, choice of place of stay and residence as intangible benefits, owned by a citizen, are protected in accordance with civil law(Article 150 of the Civil Code of the Russian Federation). Certain restrictions for safety and security purposes state interests and the interests of the population, for example, in border strip, in closed military camps, in zones environmental disaster etc., provided for in Art. 8 of the Law of the Russian Federation of June 25, 1993 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence in the Russian Federation” (Vedomosti RF. 1993. N 32. Art. 1227).

The law distinguishes between the place of residence of a citizen and his place of residence. The place of residence is the place where a citizen temporarily resides: a hotel, sanatorium, rest home, boarding house, hospital, other similar institution, as well as residential premises that are not the citizen’s place of residence. Place of residence is the place where a citizen permanently or primarily resides as an owner, a family member under a lease (sublease), lease agreement or on other grounds, provided for by law Russian Federation: residential building, apartment, office premises, specialized buildings (dormitory, special house for the lonely and elderly, a boarding house for the disabled, veterans), as well as other residential premises.

In order to create necessary conditions for citizens to exercise their rights and freedoms, to fulfill their duties to other citizens, society and the state, as well as to ensure public order and security, registration of citizens of the Russian Federation at the place of residence and place of stay has been established. The registration procedure is regulated by the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation and the List approved by the Decree of the Government of the Russian Federation of July 17, 1995 officials responsible for registration (SZ RF. 1995. N 30. Art. 2939; 1996. N 18. Art. 2144; 1997. N 8. Art. 952; N 11. Art. 1328; 2002. N 34. Art. 3294 ). With the introduction of registration records, the regulations on registration actually lost force. Citizens registered locally permanent residence, are considered to have been registered. Refusal to register may be appealed to judicial procedure(see: Bulletin of the Armed Forces of the Russian Federation. 1996. N 3. P. 4).

2. For citizens who cannot choose their place of residence at their own discretion, paragraph 2 of the commented article legally determines their place of residence. Thus, the place of residence of minors under 14 years of age is the place of residence of their parents, adoptive parents or guardians. If the parents live separately, the place of residence of the children is established by agreement of the parents. In the absence of an agreement, the dispute between parents is resolved based on the interests of the children and taking into account their opinions. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development: type of activity, work schedule of the parents , their material and Family status and others (clause 3 of article 65 of the UK). Place of residence of citizens under guardianship, if they are not in medical or educational institution, the place of residence of the guardian is recognized.

From the analysis of paragraph 2 of the commented article and art. Art. 26, 30 of the Civil Code, we can conclude that minors aged 14 to 18 years and citizens whose legal capacity is limited can choose their place of residence only with the consent of their parents, adoptive parents and trustees (see commentary to Articles 26, 30). At the same time, attention should be paid to some inconsistency in Art. Art. 26 and 36 Civil Code. Clause 2 of the latter states that guardians of minor citizens are required to live together with their wards. Separate residence of a guardian with a ward who has reached the age of sixteen is permitted with the permission of the guardianship and trusteeship authority, provided that this does not adversely affect the education and protection of the rights and interests of the ward.

Question about status and place of residence forced migrants and refugees, i.e. persons who left their place of residence not in individually and not at will, but forced, due to unfavorable political, social conditions, natural disasters, and also due to real danger to be persecuted on the basis of nationality, race, religion, etc., is regulated by the Law of the Russian Federation of February 19, 1993 “On Forced Migrants”.

Article 20. Place of residence of a citizen

Commentary on Article 20

1. In accordance with Art. 27 of the Constitution of the Russian Federation, everyone who is legally located on the territory of the Russian Federation, has the right to move freely, choose a place of stay and residence. Wherein this right, as well as other constitutional rights and freedoms of man and citizen, in accordance with Part 3 of Art. 55 of the Constitution of the Russian Federation may be limited federal law only to the extent necessary for the purposes of:
- protection of foundations constitutional order;
- protection of morals, health, rights and legitimate interests other persons;
— ensuring the defense and security of the state.
Purposes for which civil and housing rights citizens, “duplicated” in paragraph. 2 p. 2 art. 1 of the Civil Code of the Russian Federation and Part 3 of Art. 1 Residential Complex of the Russian Federation.
2. The article under comment is devoted to the citizen’s place of residence. In accordance with it, “the place of residence is recognized as the place where a citizen permanently or primarily resides”, and “the place of residence of minors under fourteen years of age, or citizens under guardianship, is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians.” In turn, the Housing Code of the Russian Federation in Part 4 of Art. 1 indicates that citizens legally located on the territory of the Russian Federation have the right to freely choose residential premises for living as owners, tenants or on other grounds provided by law.
Law of the Russian Federation of June 25, 1993 N 5242-1 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation” (hereinafter referred to as the Law on the right of citizens to freedom of movement) specifies the content of the concept of “place of residence” and establishes that the place of residence is: a residential building, an apartment, a service residential premises, specialized houses (dormitory, hotel-shelter, house of a maneuverable fund, a special house for single elderly people, a boarding house for the disabled, veterans, etc.), as well as other residential premises in which a citizen permanently or primarily resides as the owner, under a lease (sublease), lease agreement or on other grounds provided for by the legislation of the Russian Federation. The place of residence of a citizen who belongs to the indigenous people of the Russian Federation, leads a nomadic and (or) semi-nomadic lifestyle and does not have a place where he permanently or primarily lives, in accordance with the said Law, one of the settlements located in municipal area, within whose borders there are nomadic routes of this citizen.
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Gazette of the Congress people's deputies And Supreme Council RF (hereinafter referred to as the Gazette of the SND and the RF Armed Forces). 1993. N 32. Art. 1227.

Most often, determining the place where a citizen permanently resides is quite simple. With some degree of convention, we can say that this is the place where the citizen always lives. It is much more difficult to determine place of residence if a citizen lives in different places. In this case, it is necessary to determine the place where he lives most often (mostly).
Place of residence should be distinguished from place of stay. The latter usually means a hotel, sanatorium, boarding house, holiday home, etc. In such situations, everything is quite simple - it is clear that a citizen cannot permanently reside in a dispensary or in a hunting lodge (unless, of course, he is provided with official housing in these facilities). There are, however, more difficult situations when a citizen is somewhere long time resides and yet the place of residence is not considered his place of residence. Thus, the place of residence of military personnel conscript service the place where they permanently resided before conscription is recognized. Place of residence of persons studying in higher education educational institutions, secondary specialized educational institutions, educational institutions of the vocational education system, etc., located in a place other than where citizens lived before entering the relevant institution, according to general rule the place from which they came is considered. Place of residence of persons in pre-trial detention centers, places of deprivation of liberty, etc., the place where they permanently resided before being taken into custody is considered.
3. Civil and other legislation relates to the place of residence the issues of fulfilling obligations, opening an inheritance, filing a number of statements of claim, receiving pensions, etc. and so on. Moreover, in contrast to the legal situation before the adoption of the Constitution of the Russian Federation in 1993, domestic legal system less strictly binds the exercise of civil rights and execution civic duties to the administrative assignment of citizens to a specific residential premises (registration).
Until recently, there were numerous regulations regulating the notorious registration. The Law on the Right of Citizens to Freedom of Movement introduced registration of Russian citizens instead of registration. At the same time, it is important to emphasize that this Law indicates that registration or lack thereof cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens.
Regulatory legal acts and accordingly, judicial practice almost always linked the right of citizens to live in residential premises with registration. By this issue a corresponding explanation was given in the Resolution of the Plenum Supreme Court USSR dated April 3, 1987 N 2 “On the practice of using courts housing legislation"(clause 7) . However, with the adoption of the Law on the Right of Citizens to Freedom of Movement and the Constitution of the Russian Federation of 1993, the norm contained in Part 1 of Art. 54 Housing Code of the RSFSR, came into conflict with specified acts and, as a result, was declared unconstitutional by the Constitutional Court of the Russian Federation. In the Resolution Constitutional Court RF dated April 25, 1995 N 3-P “In the case of verifying the constitutionality of parts one and two of Article 54 Housing Code RSFSR in connection with the complaint of citizen L.N. Sitalova” stated, in particular, that the reason for considering the case was the complaint of citizen L.N. Sitalova for violating it constitutional law for housing by the norms of the RSFSR Housing Code applied by the court in her case.
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See: Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on civil cases. M.: SPARK, 1995. P. 171.
Collection of legislation of the Russian Federation. 1995. N 18. Art. 1708.

In the case it was established that citizen L.N. Sitalova was in virtual detention for five years. marital relations with citizen V.N. Kaderkin and lived in his apartment, remaining registered in another residential area. After the death of V.N.’s parents She raised the issue of registration with Kaderkin in his apartment, but did not receive consent.
The complaint raised the issue of violation of Part 1 of Art. 40 of the Constitution of the Russian Federation, according to which every citizen has the right to housing and no one can be arbitrarily deprived of it. The legislator, regulating this constitutional right, was obliged to follow the requirement of Part 2 of Art. 55 of the Constitution of the Russian Federation on the inadmissibility of laws infringing on the rights and freedoms of man and citizen. This was directly related to the procedure for moving into residential premises established in the RSFSR Housing Code.
Regulations of Part 1 of Art. 54 of the Housing Code of the RSFSR on the right of the tenant to move other citizens into the residential premises he occupies “in in the prescribed manner"was of a blanket nature. Uncertainty legal content this provision did not allow answering the question of which body and by what act should establish this order, and gave rise to an arbitrary understanding of what it meant in its essence.
No indication of appearance normative act, which should establish the procedure for moving into residential premises, allows legislative and executive bodies state power various subjects of the Russian Federation to establish such a procedure at their own discretion, which may lead to a violation of the constitutional right of citizens to housing and arbitrary deprivation of their housing.
The judicial practice of applying Part 1 of Art. 54 of the Housing Code of the RSFSR. Under legally similar circumstances of the case specified category were resolved by the courts in different ways, which resulted in different legal consequences for citizens.
It follows from the Constitution of the Russian Federation and the Law on the right of citizens to freedom of movement that registration, which replaced the institution of registration, or the absence thereof, cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens (Article 3 of the Law), including the right to housing. However, until now, the “established procedure” defining the procedure for moving into residential premises was understood in law enforcement practice solely as compliance with the provisions on registration, which also took place during the resolution of the case of citizen L.N. Sitalova (with reference to Parts 1 and 2 of Article 54 of the RSFSR Housing Code).
Thus, the provision of Part 1 of Art. 54 of the RSFSR Housing Code, both in its literal interpretation and in the sense that was given to it by the prevailing law enforcement practice, led to a violation of Art. 18, part 1 art. 19 of the Constitution of the Russian Federation, as well as the fundamental rights and freedoms of citizens provided for in Art. 27, part 1 art. 40 of the Constitution of the Russian Federation, and was not consistent with the grounds and conditions for their restrictions, enshrined in Parts 2 and 3 of Art. 55 of the Constitution of the Russian Federation. At the same time, part 2 of Art. 54 Housing Code of the RSFSR, defining the terms of acquisition equal rights for the use of residential premises did not contradict the specified constitutional norms.
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See also: Resolution of the Constitutional Court of the Russian Federation of April 4, 1996 N 9-P “In the case of checking the constitutionality of a number of normative acts of the city of Moscow and the Moscow region, Stavropol Territory, Voronezh region and the city of Voronezh, regulating the procedure for registration of citizens arriving for permanent residence in the named regions" // Russian newspaper. 04/17/1996. N 73.

After the Constitutional Court of the Russian Federation made the above decision, the Government of the Russian Federation adopted Resolution No. 713 of July 17, 1995 “On approval of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation and the list of officials, responsible for registration”, the Ministry of Internal Affairs of the Russian Federation approved the corresponding Instructions, and the Federal Migration Service approved the Administrative Regulations, which specify the norms of the Law on the right of citizens to freedom of movement. However, we regret to note that it is still premature to talk about the final “departure” of registration from our lives. Still active regional documents, which local authorities are trying to regulate registration contrary to the Constitution of the Russian Federation and other acts mentioned above.
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Collection of legislation of the Russian Federation. 1995. N 30. Art. 2939.
Instructions on the application of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation (approved by Order of the Minister of Internal Affairs of the Russian Federation of October 23, 1995 N 393, registered with the Ministry of Justice of the Russian Federation on November 16, 1995 . N 980) // Russian news. 07.12.1995. N 223.
Order of the Federal Migration Service of the Russian Federation dated September 20, 2007 N 208 “On approval Administrative regulations provision of Federal migration service public services on registration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation” // Rossiyskaya Gazeta. 01/23/2008. N 12.

4. Everything that has been said about the rules of the article being commented on mainly relates to what is due. As often happens, what exists does not correspond to what it should be. In most cases, in practice, the place of registration is recognized as the place of residence of a citizen. And not only due to legal illiteracy, legal nihilism and so on.
The court, having examined the circumstances of a particular case, can state that the citizen permanently or primarily resides (lived) in certain place. But what should we do when registering citizens as those in need of residential premises (Article 52 of the Housing Code)? What should a notary do when determining the place of opening of the inheritance, i.e. last place residence of the testator? In practice, in such and many other situations, there is nothing left but to assume that the citizen’s place of residence is the place of registration. It is no coincidence that, for example, in notarial practice, as confirmation of the fact of the place of opening of the inheritance, i.e. places of last permanent residence of the testator are accepted following documents:
— a certificate from the housing maintenance organization confirming the citizen’s registration at his place of residence;
- certificate from the authority local government similar content;
- a certificate from the place of work of the deceased about his place of residence;
— certificate from the address bureau confirming the citizen’s registration at his place of residence;
— certificate from a housing or housing construction cooperative;
- extract from the house register;
- a certificate from the district (city) military registration and enlistment office about where the citizen lived before being drafted military service;
- certificate from the authority social protection population about the address to which the pension was delivered to the testator.
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Cm.: Desk book notary: Educational and methodological manual: In 2 volumes, 2nd ed., revised. and additional M.: BEK, 2003. P. 198.

In case of doubt, if there is a dispute, establishing the fact of the place of opening of the inheritance, i.e. the last place of residence of the testator, can be carried out in court according to the rules for establishing facts that have legal meaning(Art. 264 - 268 Code of Civil Procedure).
This (a guide to the place of registration) is neither good nor bad. There are simply no other criteria. It is bad when “registration at the place of residence” (propiska) is perceived as something that determines housing and other rights, although the courts have repeatedly pointed out that registration is not included in the concept of “place of residence” and cannot serve as a condition for the realization of the rights and freedoms of citizens, provided for by the Constitution of the Russian Federation, the laws of the Russian Federation, the constitutions and laws of the republics within the Russian Federation (Resolution of the Constitutional Court of the Russian Federation of February 2, 1998 N 4-P “In the case of verifying the constitutionality of paragraphs 10, 12 and 21 of the Rules for registration and deregistration of citizens of the Russian Federation registration at the place of stay and place of residence within the Russian Federation, approved by the Resolution Government of the Russian Federation dated July 17, 1995 N 713”, Determination of the Supreme Court of the Russian Federation dated October 3, 2012 N 14-APG12-5).
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Collection of legislation of the Russian Federation. 1998. N 6. Art. 783
SPS "ConsultantPlus".

Registration should be treated something like this: if a citizen is registered (registered) in a certain place, then he probably lives there, being aware that perhaps this citizen lives in another place.
Thus, paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases" it is determined that the place of residence of the testator can be confirmed by documents certifying his corresponding registration with the registration authorities of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation (clause 1 of article 20 and part 1 of art. 1115 of the Civil Code, part 2 and 4 of article 1 of the Housing Code, part 2 and 3 of article 2 and part 2 and 4 of article 3 of the Law on the right of citizens to freedom of movement).
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Russian newspaper. 06/06/2012. N 127.

IN exceptional cases the fact of the place of opening of the inheritance can be established by the court (clause 9, part 2, article 264 of the Code of Civil Procedure). When considering such an application, the court takes into account the length of residence of the testator in a specific place at the time of opening of the inheritance, his presence in this place inherited property and other circumstances indicating the primary residence of the testator in this place.
5. The situations described should be distinguished from those cases when a citizen provides creditors or other persons with information about his place of residence that does not correspond to reality. Moreover, such actions of a citizen may be a deliberate misleading of creditors or other persons (deception). There may be cases when a citizen designates his place of residence following tradition, i.e. indicating the place of registration, without pursuing the goal of deceiving anyone. But in all cases when a citizen indicated as a place of residence a place other than the one in which he permanently or primarily resides, he bears the risk of the consequences caused by this. This means that when adverse consequences Due to the reporting of information about the place of residence that does not correspond to reality, the burden of these consequences is placed on the given citizen. For example, the deadline for fulfilling a citizen’s obligation is determined by the moment of demand. The creditor, in accordance with the established procedure, sent a demand for the fulfillment of the obligation, addressing it to the place of residence of the debtor, indicated by him when concluding the agreement. The debtor does not fulfill the obligation because he lives elsewhere and simply does not know about the creditor’s demand. As follows from the rule in question, the debtor does not have the right to refer to this circumstance (his ignorance of the creditor’s claim) as a basis for exemption from liability. The debtor is considered to be in default and, therefore, must fulfill the obligation, compensate for losses, pay a penalty, etc.
A citizen bears the risk of adverse consequences not only in cases where he provides false information about his place of residence to the creditor, but also to other persons. For example, tax authorities or, suppose, to co-owners - the seller of a share in the right common property to a stranger notifies other participants in the prescribed manner shared ownership about your intention (Article 250 of the Civil Code of the Russian Federation). But one of the owners did not receive the corresponding notice because he incorrectly indicated his place of residence. The risk of consequences rests with that person, i.e. he does not have the right to demand the transfer of the rights and obligations of the buyer to himself.
Such cases bear the risk of consequences caused by the communication false information about place of residence, a lot (including procedural relations). So, in accordance with Part 4 of Art. 113 Code of Civil Procedure of the Russian Federation judicial notice, addressed to a person participating in the case, is sent to the address indicated by the person participating in the case or his representative. According to Art. 118 of the Code of Civil Procedure of the Russian Federation, persons participating in the case are obliged to inform the court about a change of their address during the proceedings. In the absence of such a message subpoena or other judicial notice is sent to the last place of residence or location of the addressee known to the court and is considered delivered, even if the addressee no longer lives or is located at this address.
6. It seems that the rule formulated in paragraph 2 of the commented article should not be made absolute. As a general rule minor citizens(minors under Article 28 of the Civil Code) live with legal representatives. However, it often happens differently. For example, a child lives with his grandmother due to his parents being very busy. It seems that in some cases it is possible to recognize the place of residence of a minor in a place other than where his legal representatives live.