Aircraft in the civil code. Section vii

Today is Friday, April 28, 2017, and the next episode of the capital show Field of Miracles is on air, and today the guests are spinning the drum in the studio again! And of course, we have prepared for you the correct answers to quite difficult questions that the show participants are answering today. The Russian Civil Code defines an aircraft as (12 letters)

The correct answer to the question is REAL ESTATE

In accordance with Article 130 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), immovable things (real estate, real estate) include:
land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including forests, perennial plantings, buildings, structures, unfinished construction objects.

Immovable property also includes aircraft and sea vessels, inland navigation vessels, and space objects subject to state registration.

Items not related to real estate, including money and securities, are recognized as movable property. Registration of rights to movable things is not required, except in special cases specified in the law

With the exception of government aircraft, i.e. those, in particular, vessels that are used in military, customs and police services. The issue of legal classification of aircraft has not yet been fully developed both in international air law and in the domestic law of states. This is usually done based on the intended use of aircraft. So, according to the Air Code of the Russian Federation G.v.s. aircraft are considered to be used for the following purposes: 1) transportation of passengers, baggage, cargo and mail; 2) performing work in certain sectors of the national economy; 3) providing medical assistance to the population in carrying out sanitary measures; 4) carrying out experimental and research work; 5) holding educational, cultural, educational and sports events. To G.v.s. does not include vessels of the Ministry of Defense of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Border Troops of the Russian Federation, etc. vessels of other ministries, state committees and departments intended for development and other work in the field of aviation and other equipment.

Economics and law: dictionary-reference book. - M.: University and school. L. P. Kurakov, V. L. Kurakov, A. L. Kurakov. 2004 .

See what "CIVIL AIRCRAFT" is in other dictionaries:

CIVIL AIRCRAFT- any aircraft, with the exception of state aircraft, i.e. those, in particular, vessels that are used in military, customs and police services. The issue of legal classification of aircraft is not yet fully understood... ... Legal encyclopedia

Legal dictionary

civil aircraft- any aircraft, with the exception of government aircraft. The issue of legal classification of V.s.g. has not yet been fully developed both in international air law and in the domestic law of states. This classification is usually... Large legal dictionary

RIGHT TO AN AIRCRAFT- various property rights (ownership, possession, lease, pledge, etc.) of states, their legal entities or individuals, based on law or agreement, to a civil aircraft in operation or under construction ... Large economic dictionary

CIVIL AIRCRAFT- CIVIL AIRCRAFT… Legal encyclopedia

- (see CIVIL AIRCRAFT) ... Encyclopedic Dictionary of Economics and Law- a legal or natural person operating a civil aircraft... Encyclopedic Dictionary of Economics and Law

The classification of things into movable and immovable, known to legal science, classifies aircraft subject to state registration as immovable things. However, having called an aircraft real estate, it is necessary to remember that this statement does not apply to any aircraft, but only to one that is subject to state registration (clause 1 of Article 130 of the Civil Code of the Russian Federation). Consequently, aircraft that are not subject to state registration are movable things.

The practical significance of this classification is that the right of ownership and other real rights to immovable things, restrictions on these rights, their occurrence, transfer and termination are subject to state registration (Clause 1 of Article 131 of the Civil Code of the Russian Federation). In relation to aircraft, in addition to the ownership of the aircraft, the right of economic management and the right of operational management are also subject to registration.

In accordance with paragraph 1 of Article 33 of the Air Code of the Russian Federation (hereinafter referred to as the Air Code of the Russian Federation), aircraft intended for flight operations are subject to state registration. The same paragraph talks about the general procedure for state registration of civil aircraft, the special procedure for state registration of ultralight civil aircraft for general purpose, as well as the procedure for state registration of state aircraft. From the literal interpretation of this norm it follows that state registration is subject to All civil and government aircraft intended for flight operations. Therefore, according to the legislator's intention, all aircraft are immovable things.

Of interest is the procedure for state registration of ultra-light civil general aviation aircraft, established by Order of the Ministry of Transport of the Russian Federation dated November 18, 2011 No. 287. In accordance with paragraph 2 of clause 2 of the Procedure, meteorological pilot balloons, uncontrolled balloons, as well as ultra-light aircraft with a structural mass of 115 kg or less (excluding the weight of aviation rescue equipment) are not subject to state registration. As we have already indicated earlier, the question of the legality of a complete exclusion from the requirement for state registration of aircraft of this category is the subject of a separate study. However, we note that the Air Code of the Russian Federation in paragraph 1 of Article 33 states that civil aircraft subject to state registration, and the authorized body is competent just establish order(regulations) of this registration.

But let's return to the registration of rights to aircraft. In accordance with paragraph 6 of Article 131 of the Civil Code of the Russian Federation, the procedure for state registration and the grounds for refusal of registration are established in accordance with this Code by the law on the registration of rights to real estate and transactions with it. Note that paragraph 1 of Article 33 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it” states that until the adoption of the relevant federal laws based on the provisions of paragraph 1 of the article 131 of the Civil Code of the Russian Federation, the current procedure for registering rights to aircraft and sea vessels, inland navigation vessels, and space objects is applied.

Thus, more than 14 years after the entry into force of part one of the Civil Code of the Russian Federation, Federal Law dated March 14, 2009 No. 31-FZ “On state registration of rights to aircraft and transactions with them” (hereinafter referred to as Law No. 31 -FZ). All this time, it was impossible to confirm ownership of the aircraft. There was no “current” procedure for state registration of rights to aircraft, there were no authorized registrar bodies, there was no State Register of rights to aircraft and transactions with them, as well as certificates of ownership of the aircraft. Consequently, the owners of the aircraft (not to be confused with the rightful owners of the aircraft) were also absent.

So, state registration of rights to aircraft is the only evidence of the existence of a registered right to an aircraft (clause 3 of Article 1 of Law No. 31-FZ). According to the meaning of this norm, until the state registration of the right takes place, there is no right itself.

However, this rule has an exception, namely: the rights to an aircraft are subject to mandatory state registration, the title documents for which were drawn up after the day this Federal Law entered into force (clause 2 of Article 3 of Law No. 31-FZ). In other words, the effect of Law No. 31-FZ does not have retroactive effect.

As for real rights to an aircraft that arose before the date of entry into force of Law No. 31-FZ, such rights themselves and transactions with them completed before this moment are recognized as legally valid in the absence of their state registration. State registration of such rights is carried out at the request of their owners (Clause 1, Article 5 of Law No. 31-FZ). Thus, it is presumed that if a person openly and in good faith owned an aircraft before the entry into force of Law No. 31-FZ, then after the entry into force of the Law he is not obliged to confirm the proprietary right to the aircraft. However, further legal actions in relation to this aircraft will require state registration of the transaction with the aircraft itself, and if the property right changes as a result of this transaction, the right to the aircraft.

In any case, the need for state registration of property rights complicates civil circulation with such objects of civil rights as aircraft. And anything that is complicated does not in any way encourage market participants to subject the transaction to the Russian legal order. There are difficulties of both factual and legal nature. The main, and perhaps the main problem of a factual nature is the performance of registrar functions by only one single authorized body - the central office of the Federal Air Transport Agency (Rosaviation) in Moscow. Obviously, this circumstance does not contribute to the development of civil circulation. For clarity, one could imagine such an absurd situation if, in order to register ownership of an apartment, we were required to send a set of documents (or appear with the documents ourselves, as is customary in the Federal Air Transport Agency), to the central office of the Federal Registration Service. The real estate market in such conditions would simply cease to exist.

The main legal problem, in our opinion, is that the state registration of the aircraft itself is due to the need for state registration of the proprietary right to the aircraft. This fact obviously forces aircraft owners to look for “convenient” jurisdictions for concluding a transaction on the basis of which a proprietary right to an aircraft will arise, change or terminate. It is obvious to assume that by subordinating the transaction with the aircraft to a foreign legal order, the owner of the aircraft will also prefer foreign jurisdiction when choosing the nationality of the aircraft. And this is without delving into the upcoming difficulties associated with customs clearance of the aircraft, admission to operation and taxation.

The Concept for the Development of Civil Legislation of the Russian Federation, developed in accordance with the Decree of the President of the Russian Federation dated July 18, 2008 No. 1108 “On Improving the Civil Code of the Russian Federation,” states about the need to exclude from the list of real estate objects (clause 1 of Article 130 of the Civil Code) aircraft and sea vessels, inland navigation vessels, space objects (clause 3.3). This proposal is dictated by the fact that this legal fiction as a legal model has not justified itself. Classifying aircraft and sea vessels, inland navigation vessels and space objects as immovable things turned out to be practically impractical.

04/03/2012 The President of the Russian Federation, as a subject of legislative initiative, submitted to the State Duma of the Federal Assembly of the Russian Federation a draft Federal Law No. 47538-6 “On amendments to parts one, two, three and four of the Civil Code of the Russian Federation, as well as to certain legislative acts of the Russian Federation" (hereinafter referred to as the Draft Law). The bill proposes that Article 130 of the Civil Code of the Russian Federation be stated in a different wording, paragraph 3 of which states that the rules on immovable things apply to aircraft and sea vessels, inland navigation vessels, and space objects, unless otherwise established by law and does not follow from the essence of these objects of civil rights.

As you can see, the new edition of Article 130 of the Civil Code of the Russian Federation will not contain a rule directly calling an aircraft an immovable thing. However, something else may be established by law and follow from the essence of these objects of civil rights. Things that are not immovable are considered movable. Registration of rights to movable things is not required, except in cases specified in the law (clause 4 of article 130 of the Draft Law)

In other words, introducing amendments and additions to the Civil Code of the Russian Federation will not mean automatic cancellation of the current procedure for state registration of rights to aircraft and transactions with them, established by Law No. 31-FZ. But changes will need to be made to the order. This concerns, in particular, the elimination of the need for state registration, simultaneously with the real right, also of transactions on the basis of which such a real right to an aircraft arises, transfers, terminates, or is limited (encumbered) (Article 131 of the Draft Law).

It is also obvious that the decision on the advisability of maintaining such an order also depends on the legislator. However, the authorized bodies carrying out legal regulation in civil aviation or in state aviation can initiate a change in such a manner that in the future the Government of the Russian Federation will submit a corresponding bill to the State Duma of the Federal Assembly of the Russian Federation (on introducing amendments, additions or repealing Law No. 31- Federal Law).

It is also important to note that maintaining the current procedure for state registration of rights to aircraft (rules on immovable property, in the terminology of the Draft Law) is possible if two conditions are present in combination - a valid federal law, and this should also follow from the essence of these objects. The essence of these objects should be understood as the legal nature of such objects of civil rights, and first of all, that we are talking about vehicles with the help of which the needs of subjects of civil law in moving people and material values ​​in space are satisfied. And the more intensively this need is satisfied, the more effectively the country’s economy will develop.

All of the above indicates an urgent need to simplify the use of such an object of civil rights as an aircraft in civil circulation. Moreover, against the backdrop of existing foreign legal orders, this simplification should be understood as bringing it into line with the global trend.

state registration procedure

At the beginning of the 20th century, with the advent and development of aeronautics, the need arose for legal regulation of all types of air travel and, accordingly, the need to designate in a certain way a group of aircraft that had common characteristics.

Aircraft used for various and other purposes were classified as aircraft. The Paris Convention of 1919 defined "an aircraft as an apparatus that has the properties of staying in the atmosphere due to the reaction of the air." Subsequently, with the advent of new types of aircraft interacting with air, the concept of “aircraft” underwent certain changes.

The first edition of Annex 7 to the 1944 Chicago Convention fully reproduces the amendments made in 1967, which significantly change the definition of an aircraft. In accordance with these amendments, aircraft no longer include aircraft that are supported in the air by the reaction of air with the earth's surface.

In Russian air legislation, the concept of “aircraft” also underwent certain changes: from its first use in the Decree of January 17, 1921 to the current concept enshrined in the Air Code of the Russian Federation. According to Article 32, aircraft include aircraft maintained in the atmosphere by interaction with air other than interaction with air reflected from the surface of the earth or water.

This legal characteristic of the aircraft most fully takes into account the international and national requirements for aircraft for the purposes of application set out in the Air Code. In Article 32 of the VC, the concept of an aircraft is defined as one of the types of aircraft, suggesting that there may be other types that are not subject to the rules of Chapter V of the Air Code.

The first legal classification of aircraft was carried out by the Paris Convention of 1919.

The classification of aircraft in accordance with Annex 7 to the Chicago Convention provides for division into types, groups, subgroups according to certain criteria (Table 1).

Table 1

Aircraft classification according to

Annex 7 to the Chicago Convention

The Air Code of the Russian Federation also introduces a classification of aircraft depending on the maximum take-off weight.

Light aircraft include aircraft whose maximum take-off weight is less than 5,700 kg, including helicopters whose maximum take-off weight is less than 3,100 kg.

An ultra-light aircraft is an aircraft whose maximum take-off weight is no more than 495 kg, excluding the weight of aviation rescue equipment.

A special feature of the current Air Code is the introduction of a class of ultra-light aircraft.

The legislator, by introducing such a class of aircraft and establishing regulations and procedures for their use, on the one hand, allows flights to be carried out legally, and on the other hand, obliges them to comply with the rules of maintenance and flight operation.

The basis of the international legal status of any aircraft is its nationality. Establishment of nationality and its recording are carried out in each state in accordance with the laws of that state and, as a rule, through the implementation of a certain procedure - aircraft registration.

According to Article 33 of the Civil Aircraft Code of the Russian Federation, civil aircraft of the Russian Federation are subject to registration in the State Register of Civil Aircraft of the Russian Federation. The legal act certifying registration is the registration certificate.

The Federal Air Transport Agency may establish a special procedure for state registration and state registration of ultra-light civil aviation aircraft and experimental aircraft.

Entry into the State Register has certain legal consequences: it allows you to formalize the right of ownership, operation, and establish the ownership of the aircraft. In addition, entry into the Register makes it possible to centralize information about civil aircraft in government agencies, which greatly facilitates control over their technical condition and operation.

According to international rules, no aircraft can be registered in more than one state. The state of registration of an aircraft included in the Register automatically assumes obligations to ensure the safe operation of this aircraft. According to Article 19 of the Chicago Convention, registration is carried out by states in strict accordance with the laws of that state. In development of these laws, regulatory legal acts should be developed and adopted to regulate all aspects of state registration, including registration procedures adopted in the state, the procedure for reflecting in the State Register all information included in the certificate, etc.

In the Russian Federation, the procedure for state registration is determined by the Rules for the state registration of civil aircraft in the Russian Federation, approved by Order of the Ministry of Transport of the Russian Federation dated July 2, 2007 N 85. These Rules determine the procedure for state registration and issuance of registration certificates for civil aircraft intended for flight operations, maintaining the State Register of Civil Aircraft aircraft of the Russian Federation and making changes to it, issuing Certificates of exclusion of hot water supply from the State Register, assigning state and registration identification marks and applying them to civil aircraft, applying trademarks to hot water supply.

The State Register is maintained by the Federal Air Transport Agency.

The section “Procedure for State Registration” defines the minimum requirements for the applicant and the registration authorities. For example, state registration of a civil aircraft is carried out by the registration authority within no more than 10 working days from the date of receipt of documents from the applicant. In turn, the applicant must submit the following documents:

An application in any form containing data about the aircraft and information about its owner;

A document confirming payment of the state duty for state registration of hot water supply;

Documents or certified copies thereof confirming ownership of a civil aircraft, and, if necessary, other documents.

The chapters “Procedure for making changes to the State Register of Civil Aircraft...” and “Procedure for excluding data on GVS from the State Register...” also define the minimum requirements for the applicant in terms of submitting the necessary documents and for the registration authority in terms of carrying out the necessary actions. .

If data on a civil aircraft is included in the State Register, the registration authority assigns it state and registration identification marks, which are applied to the civil aircraft.

Identification marks of a civil aircraft consist of a state sign depicted in the form of two letters of the Latin alphabet RA, a registration mark consisting of five Arabic numerals or a combination of Arabic numerals and letters of the Latin alphabet. In addition to the state and registration identification marks, an image of the state flag of the Russian Federation is applied to the civil aircraft. This image is applied to the keel or fuselage parallel to the construction horizontal line.

In accordance with the procedure established by the legislation of the Russian Federation, after appropriate registration, images of the flag of a constituent entity of the Russian Federation, as well as trademarks, symbols, inscriptions, emblems, etc., located below the image of the state flag, can be applied.

A special image is applied to civil aircraft intended for medical service.

The definition of an aircraft is given in Art. 32 of the Air Code of the Russian Federation. According to this article, “an aircraft is an aircraft maintained in the atmosphere by interaction with air other than interaction with air reflected from the surface of the earth or water.”

The development of scientific and technological progress is directly related to the development of aviation, which entails a constant increase in the number of aircraft in the Russian Federation, their technical improvement, as well as an increase in the volume of passenger and cargo air traffic and increased requirements for their safety. As a result of the privatization of air transport enterprises, a significant part of aircraft became the private property of legal entities, which led to the emergence of intensive civil circulation of this type of property. In addition, recently a category of individuals who are private owners of aircraft has been emerging. On the one hand, securing private ownership of aircraft provides an opportunity to develop air transportation as one of the promising areas of business activity; on the other hand, in view of their strategic importance, the operation of aircraft by private owners requires careful control by the state by establishing requirements for ensuring flight safety and control over their implementation.

A positive factor influencing stability in the field of air transport was the adoption of Federal Law No. 31-F3 of March 14, 2009 “On state registration of rights to aircraft and transactions with them”, aimed at implementing the priority tasks of protecting ownership of aircraft and, in connection with this, establishing that the emergence and transfer of rights to aircraft and transactions with them will be subject to state registration in the Unified State Register of Rights to Aircraft and transactions with them.

The adoption of this Law eliminates many legal conflicts relating to the consolidation of rights to aircraft and their civil legal circulation, but leaves a number of aspects unresolved. The legislation does not contain clear lists of rights to aircraft subject to state registration, as well as transactions with aircraft and encumbrances (restrictions) on rights to aircraft subject to state registration, which does not contribute to the effectiveness of civil legal circulation of aircraft.

Experimental aircraft cannot be classified as real estate, since by virtue of clause 3 of Art. 33 of the Air Code of the Russian Federation are subject to state registration with the issuance of relevant documents by the authorized body in the field of the defense industry, but are not subject to state registration, which is a mandatory feature of real estate.

In this regard, it is justified that real estate objects are only civil aircraft subject to state registration, ultra-light civil aircraft of general aviation and state aircraft.

For civil law regulation of relations, the subject of which is an aircraft, the definition of an aircraft is of fundamental importance in order to clearly define real estate in relation to which civil transactions can be made (for example, purchase and sale, leasing, mortgage, etc.)

It should be noted that aircraft subject to state registration are classified as real estate “by force of law” (real estate in the legal sense). As part of giving the status of real estate to things that are movable by nature, the legislator uses such a legal technique as legal fiction, the purpose of which is to extend the legal regime of real estate to movable objects. In practice, the legal regulation of objects of this group is endowed with a number of features, but they are different from the legal regime of real estate in nature. Recognition of aircraft as objects intended for movement as immovable things has the main purpose of extending to them the civil legal regime of real estate, the specifics of which are determined by the need for state registration of rights to real estate and transactions with it.

Taking into account the mobile nature of aircraft as immovable things “by force of law,” such an individualizing feature of real estate as stationarity is not typical for them.

As follows from Art. 7 of the Air Code of the Russian Federation, the property of civil and experimental aviation - aircraft, airfields, airports, technical means and other means intended to support aircraft flights - in accordance with the legislation of the Russian Federation may be in state and municipal ownership, the property of legal entities, and the same property of state aviation and objects of the unified air traffic management system - only in federal ownership, with the exception of the property of aviation of internal affairs bodies, which may be owned by constituent entities of the Russian Federation. Civil aircraft may be owned by citizens of the Russian Federation. It follows from the meaning of this article that foreign individuals and legal entities cannot own civil aircraft.

The Air Code of the Russian Federation does not establish prohibitions on the transfer of publically owned aircraft under the right of operational management to institutions, federal government enterprises, or under the right of economic management to state and municipal enterprises.

Thus, as a result of the privatization of air transport enterprises, a significant part of aircraft became the private property of legal entities, which led to the emergence of intensive civil circulation of this type of property. Legal entities that have the right to act as owners of aircraft are both commercial organizations (for example, airlines) and non-profit organizations (flying clubs and other voluntary associations of citizens).

Legal analysis of Art. 7 of the RF CC allowed us to conclude that civil and experimental aircraft can be in state and municipal ownership, the property of individuals, legal entities, and state aircraft - only in federal ownership, with the exception of aircraft of internal affairs bodies, which can be in property of the constituent entities of the Russian Federation.