Property rights in the subjective sense. Types of real rights

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Any real right is usually understood in an objective and subjective sense . In an objective sense, property law- this is a set of legal norms regulating the process of satisfying the interests of an authorized person by influencing the property located in the sphere of his economic dominance. In subjective terms, a thing right is belonging to a person the ability to dispose, own and use property at their own discretion.

Thus, a certain property right that a person has ensures the satisfaction of the interests of the authorized person through direct influence on the thing that is in the sphere of his economic dominance.

Of all the features inherent in property rights, the Civil Code of the Russian Federation has established only two: right of succession and absolute nature of protection (Article 216 of the Civil Code of the Russian Federation).

The essence of the first of these signs is that the transfer of ownership of property to another person is not a basis for the termination of other proprietary rights to this property. In other words, law follows the thing. Hence the designation of this feature: the right to follow. Thus, the pledge is preserved when the right to the pledged property is transferred to another person (Article 353 of the Civil Code of the Russian Federation).

Another feature that has been enshrined in the law is that the property rights of a person who is not the owner are protected from their violation by any person in the manner provided for in Art. 305 of the Civil Code of the Russian Federation. An owner who is not the owner, but has the right to possession of property on the basis provided by law or contract, enjoys the same protection against third parties as the owner. Protection is also provided to him against the owner himself.

In addition to those indicated, the literature usually identifies a number of features characteristic of real rights: firstly, this is, as a rule, their perpetual nature. This is due to their legal nature, suggesting unlimited possibilities for ownership. Secondly, their object. Civil legislation calls property the object of any real right. Unfortunately, while using this term freely, the legislator does not give its legal definition. Because of this, this concept is often interpreted differently. In our opinion, it would be most correct to adhere to the position of the legislator, expressed in Article 128 of the Civil Code of the Russian Federation. According to this norm, the concept of property includes any things, including money and securities, as well as property rights (for example, claims). At the same time, the disposition of the norm does not distinguish between generic and individually defined things.

For all real rights, of course, except for the right of ownership, it is also characteristic that the bearer of the real right is not only in an absolute legal relationship with all third parties, but also in a relative legal relationship with the owner, whatever the grounds for the emergence and legal nature of this legal relationship .

Types of property rights:

Ownership;

The right of lifelong inheritable ownership of land;

The right to permanent (indefinite) use of land;

The right of economic management;

Right of operational management;

easements.

Lectures by Safronova

Property law in the objective sense is a sub-branch of the Civil Code - a system of legal norms governing property relations related to belonging material goods(statics)

The concept is not legally enshrined; this is dealt with by doctrine.

Basic signs:

Object specifics

 Only bodily things, because incorporeal – rights.

 Personalized item

 Intellectual property – symbol, because the object is ideal, there cannot be real powers.

The possibility of direct domination of a person over a corporeal thing. (real right – the right to one’s own actions, obligatory – another person’s)

Right of succession

A real right encumbers not a person, but a thing.

Absolute character (the authorized subject – everyone else is obliged, everyone has a passive obligation not to violate the right of the authorized person)

The absolute nature of the protection (the violator can be any subject, he is not previously known, there is no obligation between the violator and the subject of law, therefore the conditions of protection are regulated by law)

Secondary signs:

 All types of property rights are enshrined in law, in contrast to contracts. At 216 no full list(the phrase “in particular”), other types in other Federal Laws. In the project in the Civil Code there is a closed list

Property right is absolute property law subject, giving him the opportunity to influence a corporeal thing, protected in an absolute way

67.Property rights as subjective right: concept, content, limits of implementation.

Can be considered in an objective and subjective sense. In the first case we are talking about law school - a set of legal norms, a significant part of which, having a civil legal nature, is included in the sub-branch of property law.

However, the institution of property rights includes not only civil law norms. It covers all legal norms that establish (recognize), regulate and protect the ownership of material goods specific persons. These, therefore, include not only the relevant norms of civil law, but also certain regulations of a constitutional and administrative legal nature, and even some criminal law rules establishing the ownership of property certain persons, assigning them known features its use and providing legal methods protection of the rights and interests of owners.

In other words, the right of property in the objective sense is not a civil law, but a complex (multi-branch) institution of law, in which, however, civil law norms occupy a predominant place. These latter are collectively covered by the concept of property rights as a civil law institution included in the general unified system civil law.

In the subjective sense, the right of ownership, like any subjective right, is the possibility certain behavior permitted by law to an authorized person. From this point of view, it represents the broadest real right in content, which gives the opportunity to its owner - the owner, and only to him, to determine the nature and directions of use of the property belonging to him, exercising complete economic domination over it.

In paragraph 1 of Art. 209 of the Civil Code, the powers of the owner are revealed using the traditional “triad” of powers for Russian civil law: possession, use and disposal. The right to own is understood as the ability based on the law (i.e., legally enforceable) to have this property, maintain it on your farm (actually own it, list it on your balance sheet, etc.). The right to use is the legal possibility of exploitation, economic or other use of property by extracting from it beneficial properties, its consumption. It is closely related to the right of ownership, because in most cases you can use property only by actually owning it. The power of disposal means a similar ability to determine legal fate property by changing its ownership, condition or purpose (alienation by agreement, transfer by inheritance, destruction, etc.).

Taken together, these powers exhaust all the possibilities provided to the owner. Theoretical attempts to supplement this “triad” with other powers, for example the power of management, were unsuccessful. Upon closer examination, such “powers” ​​turn out to be not independent opportunities provided to the owner, but only ways of realizing the powers he already has, i.e., forms of exercising the subjective right of ownership.

The owner simultaneously concentrates all three of these powers. But separately, and sometimes all together, they may belong not to the owner, but to another legal owner of the property, for example, a tenant. After all, the latter not only owns and uses the property of the owner-lessor under an agreement with him, but also has the right, with his consent, to sublease the property to another person or, for example, make significant improvements to the property, significantly changing its original condition, i.e. dispose of it within certain limits. Consequently, the “triad” of powers in itself is not yet sufficient to characterize the rights of the owner.

Moreover, the designation of the rights of the owner as a “triad” of possibilities is characteristic only of our national legal order. It was first legislated in 1832 in Art. 420 t. X part 1 of the Code of Laws Russian Empire, from where it then, by tradition, passed into the Civil Codes of 1922 and 1964, and into the Fundamentals of Civil Legislation of 1961 and 1991, and into the Civil Code of the Russian Federation. IN foreign legislation There are other characteristics of this right. Yes, according to

§ 903 German civil code the owner “may dispose of the thing at his own discretion and exclude others from any influence on it”; in accordance with Art. 544 French civil code the owner “uses and disposes of things in the most absolute manner”; in Anglo-American law, which, due to its precedent nature, does not know the legal (legislative) definition of property rights, its researchers count up to 10-12 different powers of the owner, which can be simultaneously possessed in different combinations various persons, etc.

Finally, even the recognition of a “triad of powers” ​​for the owner does not always indicate the breadth of the content of the opportunities provided to him.

So, in accordance with Russian legislation private owner does not have the right to use the land plot provided to him for other than its intended purpose or to alienate it to persons who cannot ensure the continuation of such use (for example, for agricultural production). In case of non-compliance environmental requirements and irrational land use, he risks losing his plot of land altogether. Residential premises also have a strictly intended purpose - residential buildings, apartments, etc. Since residential premises are intended only for the residence of citizens, their use for other purposes, in particular for the placement of various offices (offices), warehouses, production facilities, etc., even at the will or with the consent of their owner, is allowed only after the transfer of these premises to non-residential established by law order (clauses 2 and 3 of Article 288 of the Civil Code). After all, the use of said real estate always in one way or another not only affects the interests of neighbors or other persons surrounding the owner, but also has a great social significance in conditions of their continuing shortage. Therefore, establishing intended purpose for the corresponding objects and the associated limitation of the capabilities of their owners serves to ensure an important public interest. In this case, the owner is not at all deprived of his rights. We are talking about the establishment by law of certain boundaries of the content of the right of ownership itself, which in any case cannot be unlimited.

Restrictions (limits) on the exercise of property rights are also possible, provided by law or an agreement. Thus, the rights of the acquirer (owner) of real estate (rent payer) under a lifelong maintenance agreement with a dependent (Article 601 of the Civil Code) exclude the possibility for him to alienate or otherwise dispose of the property acquired into ownership without the consent of his counterparty (rent recipient). This serves as one of the guarantees of the latter’s interests in the event of termination of the obligation due to a serious violation of its duties by the annuity payer (Articles 604, 605 of the Civil Code).

The pledgor is in the same situation, remaining the owner of the thing pledged, but general rule deprived of the opportunity to dispose of it without the consent of the mortgagee (clause 2 of Article 346 of the Civil Code).

(from Safronova’s lecture)

There is no legal definition in the Civil Code, but in 209 there are 3 powers (triad).

Scientific definition using this triad: property right is the subjective right of a person to own, use and dispose, regardless of the rights of other persons

Sources of origin of the triad: from the code of law of the Russian Empire, volume 10, since then it has been present in all codifications. Exist different approaches to the determination of legal ownership.

In Germany - the owner’s ability to dispose of and the ability to remove other persons from the property.

In Anglo-Saxon there are about 20 powers. But here there is a split in property, i.e. trust ( different faces can be the owners of 1 thing, regardless of each other). For example: nominal owner (the one who initially) – trustee (who manages)

The triad of powers is being criticized.

Directions:

The insufficiency of the triad and the need for additions (for example, in the USSR, adding management is beneficial for state-owned enterprises)

Refuse to list powers, because any enumeration of powers. Academician Benediktov proposed defining property rights as absolute power over a thing.

Project position: as an opportunity to own, use, dispose of and perform other lawful actions

Using the textbook, know the content of each power. Key features of legal ownership:

Independence of legal ownership from other rights to a given thing (not derivative from other rights)

Impossibility of splitting between several persons. For example: model trust management– the manager is not the owner, not to be confused with co-ownership

Indefinite right to use

Exclusivity of legal ownership: 2 aspects: 1 aspect - the ability to do with a thing active actions, not prohibited by law, 2nd aspect - the ability to remove third parties from a thing, except in cases where the owner must tolerate

Unfortunately, in current legislation There is still no definition of property rights. Article 216 of the Civil Code of the Russian Federation names two signs of real rights to other people’s things (consequential, absolute nature of protection), however, according to many scientists, real rights also have other signs.

In general, we can highlight following signs real rights.

Firstly, the main feature of property rights is its absolute nature. Also G.F. Shershenevich noted that absolute right corresponds to the duty of all fellow citizens to refrain from actions not agreed with him. The responsibilities of passive subjects are negative character, whereas in obligations the duty has positive character See: Shershenevich G.F. Decree. Op. P. 140.. Thus, when implementing a property right, an absolute legal relationship arises in which one person - an authorized subject (the title (legal) owner) - is opposed by an unlimited (absolute) number of passive obligated persons. By this feature, real rights are usually contrasted with relative rights, i.e. obligatory This feature of a property right is not recognized by all jurists. In particular, E. Barinova believes that the absolute nature of protection is inherent not only in property rights, but also in some obligatory ones. See: Barinova E. Property rights - an independent category? // Economy and law. 2002. No. 7. P.43. It seems that in justifying this point of view, the author did not take into account the fact that real rights are always opposed by an unlimited circle of obligated persons, and the owner law of obligations the debtor is confronted first of all, and only then third parties.

Secondly, the presence of the owner of the property right has the right to follow, which means that the owner retains his property right despite the transfer of the thing to the new owner (possessor) Civil Law of Russia / Responsible. ed. HE. Sadikov. P. 365.. For example, when alienating a land plot encumbered with an easement, the plot passes to the new owner along with the easement.

Thirdly, real rights have special object. IN currently There have been three approaches to understanding the object of property rights. According to T.V. Deryugina, “in the first approach, the object of real rights can only be a thing, while a thing is only an object material world. In the second approach, a thing is always an object of the material world, however, not only things, but also rights can be the object of property rights. In accordance with the third approach, only things can be the object of property law, but the things themselves can be an object of both the material and non-material world" See: Deryugina T.V. Objects of servitude legal relations // Journal Russian law. 2001. No. 5. P. 44-45. . The first of the above approaches seems to be the most correct, i.e. the object of real rights is “the thing in material significance words" Civil law: Textbook: In 2 volumes / Rep. ed. E.A. Sukhanov. M., 1998. pp. 475-476. or, as it is sometimes called in the literature, “a bodily thing” See: Leonova G. Category of property rights in Soviet civil law // Bulletin of Moscow State University. Law Series. 1991. No. 5. P. 12. . Thus, property rights can only be established for things, i.e. on objects that have a material shell, objects outside world.

Fourthly, real rights are transferred in a special way - by transferring things to Efimova L.G. On the relationship between real and obligatory rights // State and law. 1998. No. 10. P. 37. . For example, real rights can be transferred by alienation of a thing. At the same time, the moment of transfer of rights may not be related to the transfer of the thing (Article 223 of the Civil Code, etc.).

Fifthly, real rights have a specific content, which is expressed in the direct relationship of a person to a thing without the participation of other persons. E.V. Vaskovsky allowed a double construction of property law, according to which it can be defined “as a measure of power over a thing in relation to all fellow citizens or as a measure of power over fellow citizens in relation to a thing.” Meanwhile, in his opinion, the first one dominates, i.e. legal relation between a person and a thing See: Vaskovsky E.V. Textbook of civil law. Vol. I-II. St. Petersburg, 1894-1896. T. 2. P. 60.. Thus, in contrast to obligatory rights in rem, the authorized person acts on the thing without anyone’s mediation and, as a rule, in his own interests.

As L.V. points out. Shchennikov “the difference in types of real rights is determined varying degrees domination over a thing, which manifests itself in a set of certain powers that make up legal content one or another property right. The dominion of a person over property can be complete and, accordingly, constitute the right of ownership, or it can be limited, constituting the content of some limited real right” And further emphasizes that “a real right of a certain kind (property, easement) always has the same legal content, strictly defined and closed within its boundaries, no matter what legal basis it arises from” See: Shchennikova L.V. Decree. Op. P. 16..

Sixthly, property rights are protected with the help of special proprietary claims Civil law / Responsible. ed. E.A. Sukhanov. T. 1. P. 475.. These traditionally include vindication (on the recovery of property from someone else’s illegal possession) and negatory (on the elimination of obstacles in the use of property that are not related to deprivation of possession of the thing) claims.

Seventh, the methods and grounds for the emergence of real rights, their types and content are determined by law. It is no coincidence that in Art. 2 of the Civil Code states that civil legislation establishes the grounds for the emergence of real rights, and in paragraph 4 of Art. 8 of the Civil Code emphasizes that civil (including property) rights arise as a result of the acquisition of property on grounds permitted by law.

The range of real rights, in contrast to obligations, is exhaustively outlined in the law - either directly of the Civil Code (Articles 209, 216, 292, 334), or otherwise federal law. Neither by agreement of the parties nor court decision It is impossible to establish a property right that is not provided for by law. The participant obligations, on the contrary, it can, according to Art. 8 of the Civil Code, enter into transactions both provided for and not provided for by law, but not contrary to it.

Eighth, in a collision between property rights and obligations, the latter gives way to the former G.F. Shershenevich. Decree. Op. P. 141.. B modern law This rule has been consolidated as the priority satisfaction of property-law claims over obligations. In many countries, such a feature of property rights is the right of advantage. See about this: Civil and commercial law capitalist states / Ed. E.A. Vasilyeva. M., 1992. P. 197..

In the legal literature, among the characteristics of real rights, their perpetuity is often mentioned. See: Civil Law / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 1996. Part 1. P. 286. It seems that this feature is not inherent in all property rights. For example, they are limited by a period, namely the life expectancy of the authorized subject, some personal easements(for example, the right of residence in a residential building by a family member of the owner of this premises) Emelkina I.A. Property rights to residential and non-residential premises: acquisition and protection: Proc. allowance. M.: Yurist, 2003. P. 14. . A.Yu. Kolov also claims that the easement can be urgent See: Kolov A.Yu. Property rights to land in Russia. Tomsk: Peleng, 2004. P. 54., which is clear from system analysis common principles on freedom of contract, clause 51 of the Rules of Practice state register rights to real estate and transactions with him, approved by the Resolution Government of the Russian Federation dated February 18, 1998 No. 219 Collection of legislation of the Russian Federation. 1998. No. 8. Art. 963., Art. 23 Land Code RF dated October 25, 2001 No. 136-FZ Collection of legislation of the Russian Federation. 2001. No. 44. Art. 4147..

We emphasize that the subject of property rights can carry out actions in his own interest to own, use, and, in many cases, dispose of a thing, without turning to anyone else for assistance. This is the fundamental difference between real rights and obligations. A person who has an obligatory right to a thing (for example, from a lease agreement, free use), can exercise its rights to own and use it only if it actually receives it from the owner who has entered into an agreement with him.

Having revealed the characteristics of real rights, we can proceed to the formulation of the definition of real rights. Unfortunately, a major drawback of domestic legislation is the lack of a definition of property rights enshrined in law. As a result, disputes between legal scholars regarding this definition are still ongoing.

The position of pre-revolutionary jurists on the concept of property rights is interesting.

Appeal to the works of pre-revolutionary jurists creates an absolutely contradictory opinion about the state of the category of real rights. Unlike legislation, where this definition was rejected, in the theory of civil law there were serious studies of this category.

The concept of property law was interpreted by the majority of civilists (V.I. Sinaisky, G.F. Shershenevich, E.V. Vaskovsky, Yu.S. Gambarov, etc.) from a “double” point of view: 1) as a relationship between the authorized person and all by third parties and 2) as the dominance of the authorized person over the thing and the obligation of all third parties to recognize and not interfere with this dominance.

E.V. Vaskovsky allowed a double construction of property law, according to which it can be defined “as a measure of power over a thing in relation to all fellow citizens or as a measure of power over fellow citizens in relation to a thing.” In his opinion, the first one dominates, i.e. legal relationship between a person and a thing See: Vaskovsky E.V. Textbook of civil law. Vol. I-II St. Petersburg, 1894-1896. T. 2. P. 60..

K.P. Pobedonostsev identified the concept of “real rights” with patrimonial rights, the characteristics of which, in his opinion, consisted of such features as exclusivity (advantage, preference) of the right to a thing, direct dominance of a person over a thing, protection of a violated right with the help of special patrimonial claims See. : Pobedonostsev K.P. Civil law course. First part: Patrimonial rights. M., 2002. P. 190..

DI. Meyer noted that the object of the property right is someone else’s thing, and the object of the law of obligations is someone else’s action See: Meyer D.I. Decree. Op. Part 2. P. 98. .

G.F. Shershenevich determined that an absolute right corresponds to the obligation of all fellow citizens to refrain from actions not agreed with him. The responsibilities of passive subjects are negative in nature, while in obligations the duty is positive in nature. By this feature, real rights are usually contrasted with relative rights. The essence of real rights of G.F. Shershenevich saw in establishing a direct relationship between a person and a thing, due to which a person does not need the mediation of third parties to exercise his right. See: Shershenevich G.F. Decree. Op. pp. 140-142..

IN modern research property law there is also no unity in the definition of its concept.

So, G.B. Leonova’s property rights are defined as “those rights to a corporeal thing established in accordance with the law, in which the subject of the right is accompanied by the obligation of all third parties to refrain from actions that interfere with the exercise of the right, and in the event of interference with the right of another person... enjoying absolute protection” See .: Leonova G.B. Decree. Op. P. 73.. Such a definition should indicate the recognition by its author of the complete identity of the concepts of real and absolute rights.

According to Yu.K. Tolstoy, “real law is usually understood as a right that ensures the satisfaction of the interests of an authorized person by directly influencing a thing that is within the sphere of his economic domination” See: Civil Law / Ed. Yu.K. Tolstoy, A.P. Sergeeva. P.283..

L.V. Shchennikova defines property rights as “rights, the subject of which is a thing in the material sense of the word, which establishes the ownership (appropriation) of this thing and the person’s relationship to it, i.e. direct dominance over this thing through a set of certain powers, and directly enjoying absolute protection” See: Shchennikova L.V. Decree. Op. pp. 16-17..

A.Yu. Kolov offers the following definition of property law as optimal: “Proper right is the right to an individually defined thing, which has the property of being followed and enjoys the absolute nature of protection” See: Kolov A.Yu. Decree. Op. P. 58. .

O.N Sadikov understands real rights as “subjective civil law, which has an absolute nature, has a specific object and methods of protection, including, in addition to the rights of ownership, use and disposal of a thing (all together or separately), the authority to follow See: Civil Law of Russia / Rep. ed. HE. Sadikov. P. 366..

I.A. Emelkina divides property law in the subjective and objective senses. Property rights in the subjective sense are “provided for civil law the right establishing the direct connection of the authorized person with the thing (with material object external world), enjoying absolute protection and containing the possibility of influencing a thing through the powers established by law.”

I.A. Emelkina argues that “the concept of property law can be interpreted in a broad sense as an independent sub-branch of civil law, the subject of which is an independent set of social relations regulated by civil law that arise regarding the consolidation of things individuals, possession, use and disposal of them. Property law in the objective sense is a set of civil law norms regulating absolute property legal relations arising between subjects of civil law regarding the ownership of things by certain persons, as well as the possession, use and disposal of things” See: Emelkina I.A. Ownership and other property rights. pp. 12-13. .

From the above definitions one can see that all authors agree that real rights form some kind of connection between a person and a thing on legal grounds and which enjoy absolute protection.

At the same time, I think O.S. is right. Ioffe, who rightly noted that the category of real rights does not represent a single, homogeneous whole, consists of heterogeneous rights, therefore it is not possible to give an exhaustive and adequate definition of them See: Ioffe O.S. Soviet civil law. Lecture course. Part 1. L., 1958. P. 75..

In conclusion of the paragraph, we emphasize that real rights, being recognized as independent both in science and in legislation, have a number of specific signs allowing them to be separated. These characteristics include: 1) they are absolute; 2) the presence of the owner of the property right of the right to follow; 3) they have a special object - a thing in the material sense of the word; 4) they are transferred in a special way - by transferring a thing; 5) they have a specific content, which is expressed in the direct relationship of a person to a thing without the participation of other persons; 6) they are protected with the help of special proprietary claims; 7) the methods and grounds for the emergence of real rights, their types and content are determined by law; 8) when a real right collides with an obligatory right, the latter gives way to the former.