Civil law. Parts I, III and IV. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets
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Civil law. Parts I, III and IV. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Table of contents

1. THE CONCEPT OF CIVIL LAW (GP)

GP - a set of legal norms regulating property and personal non-property relations in order to implement the legitimate interests of the subjects of the state enterprise and the optimal organization of economic relations in society.

GP subject - public relations of two types: property relations - cost relations (having a commodity-money form; which have an inherent economic content) and personal non-property relations (they lack economic content).

Property relations arise in the process of production of material goods, as well as their distribution, exchange and consumption. Among property relations, the legislator highlights entrepreneurial relations (Article 2 of the Civil Code), which are characterized by: focus on systematic profit; independence and riskiness of actions of subjects; the need for state registration of entities as entrepreneurs.

GP method - a way of regulating public relations by this branch of law: it is a system of specific techniques with the help of which the rules of behavior of participants in public relations are established. The GP method assumes: equality of participants in civil law relations, autonomy of their will and property independence of these participants; restorative protection of civil legal relations; compensatory civil liability.

GP principles - the main ideas of this branch of law: equality of the legal regime of subjects of civil law; inviolability of property; freedom of contract; inadmissibility of arbitrary interference in private affairs; unhindered exercise of rights and protection of violated rights.

Functions of the GP as a branch of law - tasks that it performs in society. GP functions: regulatory; protective; transforming property and non-property relations in society as a whole.

The GP system as a branch of law - the unity of its interconnected sub-sectors and institutions.

Legal Institute - this is a set of norms that ensure the regulation of an independent group of legal relations (for example, housing legal relations are regulated by the norms that form housing law).

SOE sub-sector - this is a combination of several institutions that have their own subject and method of regulation (for example, the sub-branch "property rights", which includes legal norms governing the rights of owners and property rights of non-owners).

GP divided by two parts: general and special. The norms included in the general part are relevant for all sub-sectors included in the special part. In this way, GP system: General part (introduction to the GP (the concept of a branch of law, subject matter, method, principles, system, sources), civil relations, the exercise and protection of civil rights) and Special part (property law, law of obligations, legal regulation of the results of creative activity (intellectual property), inheritance law).

2. CORRELATION OF CIVIL LAW (GP) WITH OTHER BRANCHES OF LAW. GP AS A SCIENCE AND ACADEMIC DISCIPLINE

The branches of law that form the system of Russian law are divided into three groups: state-legal (constitutional, administrative, financial law); civil law (civil, family, labor, land law, civil procedure); criminal law (criminal law, criminal procedure, forensics).

GP is associated with each of these branches of law to a greater or lesser extent. Thus, constitutional law is associated with provisions relating to the regulation of the activities of the state, its subjects, municipalities, specifying the rights and freedoms of citizens.

The GP is similar to administrative law in that both of these branches regulate property relations. However, these are different relations: in administrative law - organizational, the participants of which are not equal, in GP - these are cost relations of equal parties. Correlation of the GP with financial and administrative law: the provisions of the GP do not apply to these industries, unless this is expressly stated in the law. One should know about the relationship between GP and natural resource law that the objects of the latter are partially included in the circle of objects of civil law.

The branches of labor and family law that emerged from civil law are similar to civil law in that these branches regulate property and personal non-property relations.

The concept of GP as science wider than the concept of GP as a branch of law: it includes a branch of law, i.e. a set of legal norms governing property and non-property relations, legislation on this branch of law, the history of the development of a branch of law, theory on the main provisions of the branch of law, regularities and trends in the development of legislation; reveals the needs of society for new laws corresponding to its changed needs, and civil scientists participate in the development of drafts of new laws and codes. GP as a science uses such "tools" of research as: dialectical method, systemic approach, complex analysis, methods of comparative law and sociological research. This science is called civil law.

GP like academic discipline reflects the main achievements of science in the field of GP as an industry, but does so taking into account the amount of time allotted by the curriculum.

3. SOURCES OF CIVIL LAW (GP). CIVIL LEGISLATION

Sources of GP - a form of consolidation (external expression) of civil law norms.

Types of GP sources: Civil Code of the Russian Federation and federal laws of the Russian Federation regulating civil law relations; by-laws containing the norms of the Civil Code (decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, normative acts of other federal executive bodies; normative acts of the USSR and the RSFSR; business practices; norms of international law and international treaties. They are not considered sources of the Civil Code, but are used in law enforcement practice : norms of morality and morality, decisions of judicial plenums and judicial practice.

Concept civil law is understood in the narrow and broad senses: in the narrow - includes the Civil Code of the Russian Federation and federal laws governing civil law relations; in a broad sense - all sources of civil law.

The central place in the civil law system is occupied by Civil Code of the Russian Federation (consists of three parts); the norms contained in other laws must comply with it. The Constitution of the Russian Federation has the highest legal force: it contains norms fundamental for other legal acts (for example, articles on the rights of property owners, on the legal capacity of citizens, etc.).

Federal legislation regulate certain types of civil law relations (for example, the activities of legal entities (public associations, charitable organizations, joint-stock companies). The laws of the USSR and the laws of the Russian Federation adopted before January 1, 1995 are valid provided that they do not contradict the Civil Code of the Russian Federation.

By-laws decrees of the President of the Russian Federation; Decrees of the Government of the Russian Federation; acts of federal executive authorities. At the same time, decrees of the President of the Russian Federation must comply with the Civil Code of the Russian Federation and other federal laws; Decrees of the Government of the Russian Federation must comply with the Civil Code of the Russian Federation, other federal laws and decrees of the President of the Russian Federation, etc.

Rules of international law and international treaties applied directly and indirectly. In the first case, only principles and provisions borrowed from international law and international treaties apply. In the second, international treaties are applied to civil law relations both with the participation of foreign entities (if they define the rights and obligations of such individuals and legal entities to property located in the Russian Federation, the procedure for concluding and processing transactions, liability for harm caused to foreign persons, etc. d.), and in relations, the participants of which are only Russian citizens (for example, in relations related to the international transportation of goods, passengers and baggage)).

business practices - a rule of conduct that has developed and is widely used in any area of business activity, not provided for by law, regardless of whether it is recorded in any document. Business practices apply: in the case when there is a gap in the law that has not been settled by the parties; if the procedure for their application is provided for by the Civil Code of the Russian Federation and the Merchant Shipping Code of the Russian Federation.

4. VALIDITY AND APPLICATION OF CIVIL LAW (CL)

In the course of application of the PP, it is necessary to take into account rules for the adoption of a law, the procedure for its publication and entry into force.

Procedure for adoption of the law. The date of adoption of a federal law is the day of its adoption by the State Duma of the Russian Federation. Federal constitutional laws are applied only on issues provided for by the Constitution of the Russian Federation, by a qualified majority of deputies.

The procedure for publication and entry into force of civil law.

All federal laws are subject to official publication (in "Rossiyskaya Gazeta", "Collected Legislation of the Russian Federation") within seven days after they are signed by the President of the Russian Federation. A federal law enters into force on the territory of the Russian Federation ten days after its official publication, unless a different procedure is established by the law itself. Decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation are subject to mandatory official publication within ten days from the date of their signing; come into force seven days after their official publication.

Normative legal acts of federal executive bodies concerning the legal status of organizations, the rights of citizens, or having an interdepartmental character, must be registered with the Ministry of Justice of the Russian Federation after their adoption. They are subject to official publication in the Rossiyskiye Vesti newspaper and in the Bulletin of Normative Acts of Federal Executive Bodies within ten days after their registration and come into force throughout the Russian Federation ten days after their official publication.

Effect of civil protection over time. The civil law act does not have retroactive force (an exception is possible only if this is indicated in the law). The civil law act loses its force: at the moment of expiration of the established period of validity; after cancellation; after the entry into force of a new normative act that repeals or amends the current normative act.

Actions of civil protection in space. The civil law act is valid in the territory under the jurisdiction of the body that adopted it. Exception: the territory of application of the law is limited by the law itself or the agreement stipulates that the legislation of one country can be applied in certain cases in the territory of another country (for example, in foreign trade transactions).

Effect of civil law on a circle of persons. Civil law acts apply to all persons located in the territory within which the civil law is in effect. An exception is possible only if the legislator limits the circle of persons to whom the law applies, or extends the application of the civil law of another state to them.

Application of the law by analogy. If there is no legal norm in the civil law that allows regulating a civil legal relationship, a civil law norm regulating a similar civil legal relationship is applied.

Application of the analogy of law. In the absence of both direct and similar rules necessary to resolve a specific relationship. In this case, the obligations and rights of the parties are determined on the basis of the principles of civil law, as well as the requirements of good faith, reasonableness and fairness.

5. CONCEPT AND STRUCTURE OF CIVIL LEGAL RELATIONSHIP (GP). TYPES OF CIVIL LEGAL RELATIONSHIPS

The concept of GP. Civil law is understood as a legal relationship between its participants regarding property and non-property relations or the social relationship itself, regulated by the norm of civil law.

GP value. In a GP, its participants are entitled subjective rights and obligations, guaranteed by the state, i.e. in case of violation of rights established by law, their bearer has the right to protection in court. The GP expresses will of the state, establishing the rules by which their participants act, and the will of the participants themselves.

The GP has common features with other legal relations: it is binding, based on the law. At the same time, HPs have specific features: GP - the result of legal regulation of property and personal non-property relations of equal participants; the subjects and objects of the GP are diverse; guarantees for the exercise of rights and obligations are measures of a property nature (compensation for losses, collection of a penalty); protection of the violated rights of participants is carried out in court by filing a statement of claim.

В structure (composition) SOEs distinguish three elements: the subjects of SOEs; GP facilities; the content of the GP (the rights and obligations of the subjects of the GP).

GP entities (persons): individual individuals (citizens, stateless persons, foreigners) or certain groups of people (legal entities, municipal, state and interstate entities). All of them are bearers of civil rights and obligations.

Object GP - what it is aimed at and has a certain effect. The object of the GP is the behavior of its subjects, aimed at various kinds of material and non-material benefits. It is necessary to distinguish between the behavior of subjects aimed at any good that can satisfy human needs, and the behavior of subjects of legal relations in the process of their interaction with each other. The first forms the object of legal relationship, and the second - its content.

GP content - the interaction of its participants, carried out in accordance with their subjective rights and obligations, as well as the totality of these rights and obligations: subjective right - a legally secured measure of the possible behavior of an authorized person: subjective duty - a legally stipulated measure of the necessary behavior of the obligated person in the GP.

Types of civil legal relations. GPs are classified on a number of grounds. Depending on the presence or absence of economic content - property и personal non-property SOEs. By the number of obligated persons - absolute и the relative. Depending on the ability of the holder of the right to exercise his rights personally or with the help of obligated persons - real и obligatory. Depending on the presence or absence of time limits - urgent и perpetual. Depending on the distribution of responsibilities of the parties - simple и complex.

6. GROUNDS FOR ORIGIN, AMENDMENT AND TERMINATION OF CIVIL LEGAL RELATIONSHIPS

Grounds for the emergence, change and termination of civil legal relations - legal facts.

Legal facts - the circumstances with which the law connects the onset of legal consequences. Since legal facts underlie civil legal relations and entail their establishment, change or termination, they are called the grounds for civil legal relations.

Types of legal facts. Depending on the presence or absence of the will of the subjects, facts are divided into events (circumstances that occur independently of the will of a person, including circumstances that arose at his will, but got out of his control - an accident, fire, etc.) and activity (circumstances that occur at the will of a person). Depending on the compliance of actions with the law, actions are divided into legitimate и illegal; lawful actions are divided into legal acts (transactions, administrative acts, court decisions) and legal acts (find, treasure). Depending on the nature of the consequences generated by legal facts, the latter are divided into law-generating, law-changing, law-restoring. Depending on the period of their existence, legal facts are divided into short-term и lasting (facts - states). The latter can be both events and actions.

Grounds for the emergence of civil rights and obligations: transactions that do not contradict the law; administrative acts provided for by law, including state registration of rights to property; court decisions establishing legal relations; creation of a product of intellectual activity; acquisition of property legally; unjust enrichment; causing harm to another person; other actions of citizens and legal entities; statutory events.

The grounds for civil legal relations may be other legal facts that are not directly provided for by law, but do not contradict its general principles and meaning.

In addition, there is such a concept as legal composition, which describe complex legal facts.

7. THE CONCEPT OF SUBJECTS OF CIVIL LEGAL RELATIONSHIPS. CITIZENS AS SUBJECTS OF CIVIL LEGAL RELATIONS

Subjects of civil legal relations - participants of civil legal relations.

Types of subjects of civil legal relations: individuals (citizens of the Russian Federation, foreign citizens, stateless persons); legal entities; state. In each legal relationship, its participants are divided into authorized persons (having the right to demand) and obligated persons.

Individuals how the subjects of civil legal relations are characterized by a number of features: they must be individual; have legal capacity и legal capacity (legal personality).

The means of individualization of a citizen are his appearance, name and place of residence.

First name citizen - his name, patronymic and surname.

РњРµСЃС‚Рѕ Р¶РёС‚РµР »СЊСЃС‚РІР ° - a place where a citizen predominantly or permanently resides. Under his own name, a citizen enters into transactions, and the place of residence is important for determining the jurisdiction of civil cases.

In the event of an unknown absence of a citizen at the place of residence for one year, the court may recognize him missing. The consequences of such recognition: the property of this citizen is transferred by court decision to trust management a person appointed by the body of guardianship and guardianship; the maintenance of his dependents is allocated from the property of this person; his dependents are assigned a pension in connection with the loss of a breadwinner; the spouse has the right to dissolve the marriage in a simplified manner, etc. If a citizen is absent from his place of residence for five years, the court may declare him dead. This period may be reduced to six months if the citizen disappeared under circumstances that threatened him with death, or to two months if the person disappeared in connection with military operations. In such cases, not only the consequences indicated above occur, but also an inheritance opens. If the citizen appears, the court reverses its decision and the citizen has the right to return property that belonged to him that ended up in the possession of other persons.

A number of legal facts (civil status acts)concerning a citizen are subject to state registration with the civil registry office (for example, birth, death, marriage and divorce, adoption).

To participate in civil circulation, a citizen must have legal capacity (the ability of a person to have civil rights and obligations; arises with birth and ceases with death) and legal capacity (the ability of a citizen to acquire and exercise civil rights and obligations by his actions; it arises in full only from the moment of reaching the age of majority).

Types of capacity: from six to 14 years - legal capacity of minors; from 14 to 18 years old - partial legal capacity; from the age of 18 - full legal capacity. The difference in the capacity of a citizen: the differentiation of the types of transactions that he can make in each of the above periods.

8. LIMITATION OF CITIZENS' CAPABILITY

Legal capacity can be reduced by recognition by the court of a citizen partially incapacitated or incompetent. A citizen who, due to a mental disorder, cannot understand the meaning of his actions or manage them, upon the application of interested parties, may be declared incompetent by the court. He does not have the right to make any transactions, including small household ones, and does not bear any responsibility for them, as well as for causing harm. On his behalf, all transactions are carried out by his guardian.

A citizen who, due to the abuse of alcohol or drugs, puts his family in a difficult financial situation, at the request of the interested parties, may be limited by the court in his legal capacity. He is not entitled, without the consent of the trustee, to make any transactions, except for small household ones, however, he bears full property liability for them, as well as for causing harm.

Ability can be improved by emancipation a citizen, i.e., recognizing him as an adult in the event of marriage registration at the age of 16 Emancipation is carried out: by decision of the guardianship and guardianship authorities - with the consent of both parents, adoptive parents or guardian or by court decision - in the absence of the consent of parents, adoptive parents or guardian. Parents, adoptive parents and a guardian shall not be liable for the obligations of an emancipated minor, including for obligations arising as a result of harm caused to them.

The institution of guardianship and guardianship was introduced to protect the rights and interests of incapacitated or not fully capable citizens, as well as to protect them from abuse by third parties. It is regulated by the Civil Code of the Russian Federation, as well as by the Federal Law "On guardianship and guardianship" of 2008.

Guardianship established over incompetent citizens, guardianship - over partially capable. Guardians (trustees) are the legal representatives of their wards, their representation does not require the issuance of a power of attorney with the designation of their powers in it. The document certifying the powers of the guardian (custodian) is the guardian's certificate, and in its absence - the decision of the guardianship body on the appointment of the person as the guardian (trustee).

Guardianship (trusteeship) is established by the guardianship and guardianship body, which is the local self-government body, within one month from the date of receipt of the message from interested persons (court decision) on the need to establish guardianship (guardianship).

Patronage - a form of guardianship over capable citizens when, for health reasons, they cannot independently exercise and protect their rights and fulfill their duties. The trustee (assistant) is appointed with the consent of the assistant himself and the citizen over whom patronage is established (in writing). The assistant (under the control of the guardianship and suretyship body) performs actions in the interests of the citizen under patronage, on the basis of an agency agreement concluded with him, an agreement on trust management of property or another agreement. At the same time, the ward is notified of violations committed by the assistant and which are the basis for terminating the contracts that were concluded between the assistant and the ward. Patronage is terminated in connection with the termination of the contracts concluded between the assistant and the ward, on the grounds provided for by law or the contract.

9. LEGAL ENTITIES AS SUBJECTS OF CIVIL LEGAL RELATIONS

Under legal entity (LE) understand an organization that has the following features: the presence of separate property on the right of ownership or economic management, or on the right of operational management; property liability for its obligations; independent performance in civil circulation (acquisition and exercise of property and personal non-property rights and obligations on its own behalf); ability to be a plaintiff and defendant in court. The legal entity must have an independent balance sheet or estimate, and be registered as YL.

A legal entity has legal capacity and legal capacity, which arise at the same time and terminate at the moment of its liquidation.

Legal capacity it can be general (for commercial organizations, with the exception of unitary enterprises) and special (for non-profit and unitary organizations).

General legal capacity means the ability of a legal entity to engage in any type of activity not prohibited by law.

Special legal capacity - this is a restriction of activities (possible activities are listed in the constituent documents of a legal entity), for this the legal entity must have a license.

A legal entity may have separate subdivisions located outside the location: branches (carry out all the functions of a legal entity or part of them) and representations (represent the interests of the legal entity and carry out its protection).

The legal capacity of a legal entity is carried out with the help of its bodies: individual (director, manager, chairman, president) and collegiate (directorate, board of leaders, general meeting of the labor collective).

Legal entity individualization carried out with the help of the name of the enterprise, as well as with the help of trademarks, service marks, names of places of origin of goods, which are the intellectual property of legal entities.

Location The legal entity is determined by the place of its state registration, unless otherwise provided in the constituent documents. A commercial legal entity must have a company name. The legal entity may have commercial or official secret. The legal entity has a business reputation.

Classification of legal entities. According to the degree of participation of labor and capital - association of persons (business partnerships) and pooling of capital (business companies). In order to create a property base - Corporation (voluntary associations) and institutions (subsidiaries). According to the form of ownership of their property - state, municipal и private. Depending on the legal form - business partnerships и societies, cooperatives, unitary enterprises (state and municipal), institutions, non-profit organizations. Depending on the purpose - commercial (the main purpose of their creation is to make a profit) and non-commercial (the main purpose of their creation is the performance of certain socially useful functions that are not related to making a profit). The latter type of classification is the most common in modern civil law.

10. ORIGIN AND TERMINATION OF A LEGAL ENTITY (LE)

Methods for creating a legal entity. 1. Administrative procedure. A legal entity arises on the basis of an order of a public legal body; state registration is not required (it was in the USSR, it does not apply in the Russian Federation).

2. Permitting procedure. To form a legal entity, permission from the competent government authority and subsequent state registration are required (was in the USSR; in the Russian Federation it is used for the formation of credit and insurance organizations, unions and associations, etc.).

3. Regulatory appearance procedure. Regulatory acts regulate the procedure for the emergence and activities of certain types of legal entities; compliance with this procedure gives the right to recognition of the organization as a legal entity, certified by the fact of its state registration (currently in the Russian Federation and other countries).

4. Appearance procedure (contractual). A legal entity is created as a result of the expressed intention of the participants to act as a legal entity in the absence of the fact of its state registration (not applicable in the Russian Federation).

Termination of LE carried out in an orderly and voluntary manner. Distinguish between reorganization (the rights and obligations of a terminated person are transferred to another person) and liquidation (termination of a person without transferring his rights and obligations to someone else).

Reorganization carried out: merging, accession, separation, separation and transformation. Mandatory: prior notice to creditors who have the right to demand termination or early performance of obligations and compensation for losses. Depending on the method of reorganization, it is drawn up by a deed of transfer (in the event of a merger, acquisition, transformation) or a dividing balance sheet (in the event of division, spin-off); is considered completed at the time of state registration of newly created legal entities.

Liquidation of a legal entity. Creditors' claims are satisfied in order of priority. First of all, the demands of citizens for causing harm to life or health; in the second - payments to employees of the liquidated legal entity; thirdly, the claims of creditors for obligations secured by a pledge of property of the legal entity being liquidated are satisfied; fourth - debts on obligatory payments to the budget and extra-budgetary funds are repaid; fifth - settlements are made with other creditors. The claims of each successive creditor are satisfied after the claims of the previous one are fully satisfied; if the property of the liquidated legal entity is insufficient, it is distributed among the remaining creditors in proportion to the amounts of claims to be satisfied; claims of creditors that are not satisfied due to the insufficiency of the property of the legal entity being liquidated are considered repaid.

A legal entity in connection with its bankruptcy takes place in accordance with the Civil Code of the Russian Federation and the Law "On Insolvency (Bankruptcy)" of 2002. The procedure for bankruptcy of a legal entity and a citizen, including an individual entrepreneur, is different. The order of satisfaction of creditors of a legal entity in case of bankruptcy: out of order, the debts incurred in connection with the costs of the bankruptcy procedure are paid, and then the priority indicated above is observed.

11. THE STATE AS A SUBJECT OF CIVIL LEGAL RELATIONS

The structure of the Russian state (state) is the Russian Federation, which includes the subjects of the Russian Federation - republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts and municipalities - urban, rural settlements, etc.

The state as a subject of civil legal relations (signs): organizational unity, separate property, liability for its obligations, the ability for subjects of the Russian Federation and municipalities to act on their own behalf when acquiring property and personal non-property rights in court. The principle of equality with other subjects applies to the state, despite the fact that the state has power.

The state exercises its rights and obligations at the federal level with the help of the Federal Assembly, the President, the Government, ministries and departments, etc. Legislative assemblies, regional dumas, presidents, governments, ministries and departments, etc., can act on behalf of the constituent entities of the Russian Federation. On behalf of the municipalities, the right to speak is granted to the representative bodies of local self-government. On behalf of the state, legal entities and citizens can act on special instructions from the state.

Scope of participation The Russian Federation, its constituent entities, municipalities is determined by the legal capacity of the latter, which is reflected in the law and is special.

Features of responsibility state-va on their obligations:

a) The Russian Federation, its constituent entities, municipalities bear independent property liability, i.e. they are not liable for the obligations of each other, as well as legal entities created by them. However, they may be held responsible for the insolvency of the enterprises of which they are the founder, which arose as a result of the execution of incompetent instructions of the founder;

b) the state bears subsidiary liability for the obligations of the institutions it has created if the latter lack their own funds, if the state is the owner of the property assigned to them;

at) The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise in case of insufficiency of its property;

d) The Russian Federation, its constituent entities and municipalities are liable for non-contractual obligations in cases of loss caused by illegal actions of their bodies;

d) objects with which the state can be responsible for its obligations are limited (it is impossible to answer with property assigned to legal entities created by it on the basis of the right of economic management or the right of operational management).

The state has judicial immunity: liability in relations with foreign partners is limited: the latter cannot bring a lawsuit against him for improper performance of obligations without the prior consent of the competent authorities of the state, reflected in the international treaty. The rules governing the participation of legal entities in relations regulated by civil law apply to the state, unless otherwise follows from the law or its features.

12. BUSINESS COMPANIES

Business companies - these are the most common types of legal entities in commercial circulation, the common feature of which is that their property is conditionally divided into shares, in which the obligations of participants in relation to the legal entity to receive a share from the distribution of profits are expressed; to receive a share of the value of property when a participant leaves a legal entity; to receive a share of the liquidation balance; to participate in the management of a legal entity.

The basic rights and obligations of participants in business partnerships and companies are enshrined in the Civil Code of the Russian Federation, are imperative in nature and can be supplemented by constituent documents.

Participants have the right: manage the affairs of the company in one form or another, receive information about its activities, participate in the distribution of profits, receive part of the property left after the liquidation of the legal entity.

Participants are required to: participate in the formation of the property of the company; not disclose confidential information about its activities.

Limited Liability Company (LLC) - a commercial organization formed by one or more persons who are not liable for its obligations, the authorized capital of which is divided into shares belonging to its participants in predetermined amounts, fixed in its constituent documents - the memorandum of association and charter.

Joint-stock company (JSC) - a commercial organization formed by any number of persons who are not liable for its obligations, with an authorized capital divided into shares, the rights to which do not require their fixation in the constituent documents, but are certified by documents with high turnover - shares (securities) .

Additional liability company (ALC) - a commercial organization formed by one or more persons jointly and severally bearing additional liability for its obligations in the amount of a multiple of the value of their contributions to the authorized capital.

13. ECONOMIC PARTNERSHIPS

Business partnerships - legal entities, the common feature of which is that their property is conditionally divided into shares, in which the obligations of the participants in relation to the legal entity are expressed: to receive a share from the distribution of profits; to receive a share of the value of property when a participant leaves a legal entity; to receive a share of the liquidation balance; to participate in the management of a legal entity.

Full partnership - a business partnership, the participants of which jointly and severally bear subsidiary liability for its obligations with all their property.

Limited partnership (limited partnership) - a partnership in which, along with participants carrying out entrepreneurial activities on behalf of the partnership and liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.

All differences legal status partnerships and societies stem from the concept that a partnership is an association of persons, and a society is an association of capitals. Other differences.

1. Despite having legal personality, a partnership is considered a contractual and not a statutory association. The founding document of the partnership is the founding agreement.

2. Since a partnership is created for joint business activities, only entrepreneurs and commercial organizations can be its full members; there is no such restriction for companies.

3. General partners bear unlimited joint and several liability for the obligations of the partnership, unlike other participants who bear limited liability; in this regard, a person can be a general partner in only one partnership.

4. To protect the interests of creditors of business companies whose participants bear limited liability, the law more strictly regulates the issues of forming the authorized capital of the company, changing it, and maintaining the company’s assets at a level not less than the authorized capital.

5. The number of participants in a partnership is, as a rule, small, and their relationships are of a personal and fiduciary nature: decisions are made on the basis of mutual agreement, there is no system of governing bodies, and the affairs of the partnership (representative functions) are carried out by the participants themselves. The company has a system of governing bodies established by its constituent documents on the basis of law: decision-making and management of the company's affairs is carried out by its governing bodies on the basis of the powers granted to them by law and the constituent documents of the company.

6. In the legal regulation of societies, the weight of imperative norms is quite high; Partnerships are regulated mainly by dispositive rules.

14. PRODUCTION COOPERATIVE

Production cooperative (artel) - a commercial organization created to conduct joint activities on the basis of personal labor and other participation, the property of which consists of the shares of its members.

Like partnerships, members of a cooperative bear subsidiary liability for its debts in the amount and in the manner prescribed by law and the charter of the cooperative, and therefore the law does not provide for a minimum level of authorized capital for a cooperative.

The number of cooperators must be at least five persons, and they are not required to be entrepreneurs. The number of members of a cooperative who do not take personal labor participation in its activities should be no more than 25% of the total number of working cooperators.

The property of the cooperative consists of share contributions of its members (share fund), as well as property constituting an indivisible fund used for statutory purposes.

By the time of registration of the cooperative, at least 10% of the share fund must be paid, the rest - within one year from the date of registration.

The distribution of profits and liquidation balance between cooperators is usually made in accordance with their labor participation.

The supreme governing body of a cooperative is the general meeting of its members, which forms executive bodies from its members, and, if necessary, a supervisory board. Each cooperator at the meeting has one vote. When leaving the cooperative, its member has the right to pay him a share, which, in the presence of an indivisible fund, does not coincide with the share in the property of the cooperative. He has the right to transfer his share to another cooperator. The transfer of a share to a third party means his acceptance as a member of the cooperative and is possible only by decision of the general meeting. Exclusion from members of the cooperative is possible as a sanction for improper performance of membership duties; made by decision of the general meeting.

15. UNITARY (STATE AND MUNICIPAL) ENTERPRISES. NON-PROFIT ORGANIZATIONS

Unitary enterprise - a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible, cannot be distributed among contributions (shares, shares), including among employees of the enterprise.

The charter of a unitary enterprise must contain, in addition to all the information required for the charters, also information about the subject and goals of the enterprise, the size of the authorized fund of the unitary enterprise, the procedure and sources for its formation.

Only state and municipal enterprises can be created in the form of a unitary enterprise. The property of a unitary enterprise is, respectively, in state or municipal ownership and belongs to such an enterprise on the basis of the right of economic management or operational management. The firm name of a unitary enterprise must contain an indication of the owner of its property.

The body of a unitary enterprise is the head (appointed by the owner or a body authorized by the owner and accountable to him). A unitary enterprise is liable for its obligations with all its property: it is not liable for the obligations of the owner of its property.

Nonprofits - legal entities that do not pursue the goal of making profit as the main goal of their activities and do not distribute profits among their participants. All non-profit organizations have a special legal capacity, the content of which depends on the goals of creating a particular legal entity and its organizational and legal form.

The goals of creating non-profit organizations: social, charitable, cultural, educational, scientific, managerial, health protection of citizens, development of physical culture and sports, satisfaction of spiritual and other non-material needs, other goals aimed at achieving public benefits.

A non-profit organization may carry out commercial activities only insofar as this serves to achieve the goals for which it was created. Profitable production of goods and services, acquisition and sale of securities, property and non-property rights, participation in economic companies and limited partnerships as a contributor are recognized as such activities. Restrictions may be imposed on the entrepreneurial activities of certain types of organizations.

The existing organizational and legal forms of non-profit organizations differ not in the specifics of their legal structure (circle of participants, legal relations between them and the organization, features of the formation and maintenance of the property base, management bodies, etc.), but in the specifics of the organization’s field of activity (consumer cooperatives, foundations, charities, etc.).

16. OBJECTS OF CIVIL LEGAL RELATIONS AND THEIR TYPES

Object of civil legal relationship - that good, about which a civil legal relationship arises and in respect of which there is a subjective right and a corresponding obligation.

Types of objects of civil legal relations: things (including money and securities), property (including property rights); works and services; protected results of intellectual activity and equated means of individualization (intellectual property).

Property - a set of things, as well as the right to property. Varieties of things are money and securities. The general rules on property apply to animals insofar as the law or other legal acts do not provide otherwise.

Work or услуга - actions of the obligated person. The work aims to create a materialized object - to build a house, sew a coat, etc. As a result of the service, a materialized result does not arise. Services are diverse in nature (medical, cultural, household, tourism, financial and other services).

Since the creators of these objects are recognized as the exclusive right to use them, the results of creative activity are called intellectual property.

intangible benefits - non-property benefits. They are devoid of economic content, that is, they have no value expression. These include: name, life and health, personal dignity, personal integrity, honor, business reputation, privacy, the right to free movement and choice of place of residence and stay, etc.

Rights that provide personal benefits are divided into three groups:

1) rights that ensure the physical well-being of the individual (the right to life, the right to health, the right to a favorable environment);

2) rights that contribute to the individualization of a person (the right to a name, patronymic, surname, appearance, honor, dignity, business reputation);

3) rights that ensure the autonomy of the individual in society (the inviolability of the home, telephone conversations, telegraph messages, physical and mental integrity, etc.).

Information - information that has actual or potential value in civil trade, as it is unknown to third parties and is protected by its owners. Information is a kind of intangible goods. An example is official and commercial secrets (Article 139 of the Civil Code of the Russian Federation).

Each of these types of objects of civil rights is protected in a certain way. So, for example, a thing illegally confiscated from the owner can be reclaimed by him with the help of vindication claim. If the honor and dignity of a citizen are belittled, the latter may demand a refutation of the information discrediting him in the same way in which the damage was caused to him.

17. CONCEPT, DEFINITION AND CLASSIFICATION OF THINGS

Thing - a material object in a different physical state (including energy), in connection with which civil legal relations arise.

Classification of things

1. According to the degree of connection with the earth - movable и immovable. TO immovable objects include: objects of natural origin (land plots, subsoil plots); objects firmly connected with the land (buildings, structures, etc.); enterprises as property complexes; air, sea and river vessels, space objects.

movable objects are everything else. The specifics of real estate: the emergence, transfer, restriction and termination of real rights to it occurs with the obligatory observance of the written form of the transaction and state registration with the justice authorities.

2. By turnover - things circulating, limited in circulation и withdrawn from circulation. Things are considered not limited in circulation, unless otherwise provided by law. Restrictions on turnover can be established for reasons of state and public security, protecting the economic interests of the state, ensuring public health, etc. (natural resources, weapons, potent poisons, drugs (can only be purchased with licenses), currency values, etc.) , as well as objects of state property that are in common use (public buildings and structures, roads, rivers, national libraries and archives, etc.), things prohibited by law (fake banknotes and payment documents, pornography, etc.). Such objects are expressly specified in the law.

3. If possible, individualize them - things individually defined и defined by generic characteristics (generic). An individually defined thing can be distinguished from other similar things, and generic things represent a certain number of things of a given kind.

4. If possible, their consumption - things consumed и non-consumable. Consumed things during the process of use lose their consumer properties completely or in parts (food products) or are converted into another consumable thing (construction materials). When used, non-consumable things are not completely destroyed and can serve their intended purpose for a long time (buildings, structures, machines, equipment).

5. If possible, division - things divisible и indivisible. As a result of their division, divisible things do not change their original purpose (food, fuel, materials). As a result of their division, indivisible things lose their former purpose or disproportionately lose their value (a pair of shoes, a table service, a furniture set).

6. According to their structure - complicated things. If heterogeneous things form a single whole, suggesting their use for a common purpose, they are considered as one complex thing.

7. By purpose - the main thing и affiliation. A thing intended to serve another, main thing and connected with it by a common purpose (accessory) follows the fate of the main thing, unless otherwise provided by the contract.

18. SECURITIES AS OBJECTS OF CIVIL LEGAL RELATIONSHIPS

Securities - a variety of things, monetary or commodity documents certifying property rights, the implementation of which is possible only upon presentation of these documents.

Features of securities: the presence of paper as a material object (exception: "uncertificated securities" issued in cases provided for by law (the rights are exercised in the form of entries in special registers or in computers)); literality (written form) - violation of the form established by law entails invalidity; strictly formal nature - the security must contain the details established by law (lack of details entails invalidity); abstract nature - the absence of a basis in accordance with which a security was issued (this feature is inherent in most securities); public certainty - objections based on relations with his predecessors cannot be raised against the holder of the security.

Securities classification

1. According to the method of legitimation of the legal holder of a security - registered, order and bearer.

bearer security - a document, from the content or form of which it follows that the possession of it gives certain rights. The debtor is obliged to provide execution under this document, without requiring other legitimation of the owner (if there is no suspicion that the owner is illegal). AT nominal paper the subject of law (owner) is indicated. The rights from registered papers are transferred in the order of a general civil cession.

Order paper (bill of lading, bill of lading, check, etc.) provides for the obligation of the debtor to fulfill the obligation to the person indicated in this document or, by order of the latter, to a new entity, which, in turn, has the right to transfer the document further by a similar order. The owner of an order paper is legitimized both by presenting a document and by a continuous series of endorsements, while each endorsement must be signed by the person indicated in the previous inscription as an endorser (endorser).

2. By type of property rights - commodity and money. money papers - fix the right to receive a sum of money (bills, checks, bonds).

Commodity papers - fix real rights (most often, the right of ownership and the right of pledge to goods that for some reason are in the possession of another person), for example, bills of lading, warrants.

3. By type of persons issuing securities (issuers): public, issued by state and municipal authorities, and corporate, issued by legal entities.

4. According to the content of the rights contained in them: obligatory, securing the right to participate in any company or to receive funds (shares, bonds, bills, etc.), and real (bill of lading), fixing the right to things in circulation.

The law provides for various ways of transferring securities by delivery, by assignment of the right to claim (cessions), by means of an endorsement (endorsement).

19. CONCEPT OF A TRANSACTION AND TYPES OF TRANSACTIONS

Dealings - actions of subjects of civil legal relations aimed at establishing, changing or terminating civil rights and obligations. Transactions are the most common legal facts, which are actions aimed at achieving a certain legal result. A transaction is a lawful action that must comply with the requirements of the law, in contrast to illegal actions (torts) and unjust enrichment. The range of transactions is not limited to those specified in the legislation. It is allowed to make other transactions that do not contradict the law, as well as combining elements of various transactions. Transactions are made freely, but the law may provide for compulsion to make certain transactions.

Types of transactions

1. Depending on the number of parties involved in the transaction, transactions are divided into unilateral, bilateral and multilateral.

One-sided: for its commission, the expression of the will of one party is sufficient (issuance of a power of attorney, drawing up a will). Obligations arise only from the person who has made the transaction, and the other person participating in the transaction has only rights. AT bilateral: each of the parties must express its will in the form of an agreement upon its conclusion (purchase and sale). AT multilateral: the number of persons involved must be at least three (joint activity of several persons). Transactions involving two or more parties are called treaties.

2. Whether the transaction stipulates the moment of its execution or not: urgent (the due date is specified in the contract) and perpetual (the deadline for which is not specified in the contract must be performed within a reasonable time).

3. Transactions in which the occurrence of legal consequences is made dependent on the occurrence of certain circumstances (conditions) are divided into conditional и unconditional (execution is not made dependent on the occurrence of certain circumstances (conditions), such transactions are the majority). Conditional transactions - execution depends on whether a certain circumstance occurs or not, and the parties do not know for sure at the time of the transaction. Conditional transactions, in turn, are divided into two types: transactions with suspensive conditions and deals with cancellation conditions.

4. Depending on the relationship of the transaction with the legal basis: causal (related to the legal basis, such as a loan agreement) and abstract (in which there are no legal grounds, for example, issuance of a bill of lading, bill of exchange). Most transactions are causal.

5. Depending on the moment of emergence of legal relations under the transaction: consensual (the rights and obligations of the parties arise from the moment an agreement is reached) and real (the rights and obligations of the parties for which arise from the moment the thing is transferred, for example, a loan, storage).

6. Trust (fiduciary) - transactions of a fiduciary nature (order, commission, trust management). In fiduciary transactions, a change in the nature of the relationship between the parties, the loss of their fiduciary nature, can lead to the termination of relations unilaterally.

20. FORM OF TRANSACTIONS

Transaction form - a way of expressing the will of its parties. There are three forms of transactions: oral, implied and written.

Oral form of the transaction - the expression of the will of its participants in words spoken aloud. In this form, any transaction for which the written form is not established by law, as well as a transaction executed at its conclusion, can be made. Exceptions: the parties may conclude such a transaction in writing by mutual agreement; the oral form is not allowed in relation to transactions, although they are executed when they are completed, but in respect of which the written form is established by law.

implicit deal - this is a transaction made by the action of a person expressing his will, his behavior, from which such an intention obviously follows. Such actions are called conclusive (buying a newspaper from a vending machine). In this form, transactions can be made only in cases where this is expressly indicated in the law, rules, contract.

The written form of the transaction - expression of the will of the parties by drawing up a document using written characters (by hand or using technical means) on paper, including on standard forms (waybills, receipts), on other tangible or electronic media.

Types of written transactions: transactions in simple written form, concluded without the participation of official officials; transactions in a notarized form are transactions made in a simple written form and certified by a notary; transactions made in a simple written form, but subject to mandatory state registration.

В simple writing made: transactions of legal entities between themselves and citizens; transactions of citizens among themselves for an amount exceeding ten times the minimum wage established by law; transactions, the mandatory written form of which is established by law, regardless of the amount of the transaction (contracts for the sale of real estate, for the sale of enterprises, a lease agreement for a period of more than one year, etc.); transactions, the simple written form of which is established by agreement of the parties.

Consequences of non-compliance with the simple written form of the transaction: the inadmissibility of witness testimony in cases of dispute between the parties, but the admissibility of other evidence (cash and sales receipts, technical passports).

Notarial certification a written transaction is carried out by a notary or officials in cases expressly specified in the law (execution of a power of attorney issued by way of substitution or intended for transactions requiring a notarial form; mortgage agreement; wills). Failure to comply with this form makes the transaction invalid. In a notarial form, transactions can also be made by mutual agreement between the parties.

State registration of transactionsmade in simple written form, is carried out in special bodies when the subject of the transaction is real estate. In this case, a state fee is charged.

21. VOID TRANSACTIONS

Invalid transaction - a transaction in which at least one of the following features is defective.

Conditions for the validity of transactions:

▪ the object of the transaction must not be withdrawn from civil circulation;

▪ the subjects of the transaction must be legally capable;

▪ the form of the transaction must comply with the law;

▪ the will of the parties must be genuine;

▪ the content and legal result of the transaction must not contradict the law.

Consequences of declaring a transaction invalid: such a transaction does not give rise to legal consequences. Sometimes not the whole transaction is invalid, but some of its conditions. In this case, the invalidity of a part of the transaction does not discredit the entire transaction as a whole, if it can be assumed that it would have been made without its invalid part. That is, the recognition of the invalid part of the transaction does not entail the invalidity of its other parts.

In the general case, the main consequence is the restoration of the original property status of the parties, which is achieved by bilateral restitution - the return by the parties to each other of everything received under the transaction in kind or in money.

In some cases it is possible unilateral restitution - return to the original state only of the innocent party, and the return to the guilty party is collected in the state revenue, as well as non-restitution - recovery of the state income received by both parties under the transaction.

A party that has deliberately made a knowingly invalid transaction, along with the obligation to return to the counterparty received from him under the transaction, is subject to a number of civil sanctions:

1) for transactions made with incapacitated or partially incapacitated citizens - the guilty capable party (who knew about their incapacity) is obliged to compensate the victim for the actual damage incurred by the execution of the transaction;

2) for transactions made under the influence of a delusion, the party guilty of the occurrence of the delusion compensates the other party for the real damage suffered by that party from the consequences of this delusion: the execution of the transaction or from its recognition as invalid;

3) for transactions made under the influence of deceit, violence, threat, malicious agreement of the representative with the other party, a combination of difficult circumstances - the guilty party is obliged to compensate the victim for the real damage incurred by the execution of the transaction; the property due under the transaction to the injured party from the guilty party is transferred to the income of the Russian Federation;

4) for transactions made with a purpose contrary to the foundations of law and order or morality, the property due under the transaction to the guilty party (or both guilty parties) turns into the income of the Russian Federation.

22. TYPES OF VOID TRANSACTIONS

Void deal void due to non-compliance with the law at the time of its commission without a special decision on this matter. It does not have to be executed, but in exceptional cases the court may recognize it as valid.

Challengeable deal gives rise to legal consequences at the time of its commission, but these consequences can be annulled by the court at the request of a certain circle of persons and on the grounds provided for by law.

As a general rule, all invalid transactions are void, and voidable - only in cases provided for by law. If the law does not specifically indicate whether this transaction is voidable, one should pay attention to whether there is an indication of the law to recognize the transaction as invalid by the court. In its absence, the transaction is void.

Proving in court is subject to basically the correct reflection of the will in the will of the parties to the transaction or the presence or absence of the consent of the legal representative of one of the parties to the transaction. If a claim for recognition of a voidable transaction as invalid is not filed with the court within the established limitation period, the transaction is considered valid.

Regardless of whether the transaction is voidable or void, if it is executed, the interested parties may apply to the court with a claim to apply the consequences of its invalidity to the transaction. In addition, in some cases, the law provides for the possibility of "reanimating" a void transaction, i.e., recognizing it as valid (transactions made by incapacitated citizens for their benefit; transactions that have not passed state registration or not clothed in a notarial form due to evasion of this procedures of one of the parties).

Statute of limitations one year for voidable transactions and ten years for void transactions. Beginning of the limitation period for voidable transactions made under the influence of violence (threat) - the day the violence (threat) ceases; for other voidable transactions - from the day when the interested person found out (should have known) about the circumstances that are the basis for the invalidity of the transaction; for void transactions - from the date of commencement of their execution.

23. CONCEPT AND SIGNIFICANCE OF REPRESENTATION

Representation - the commission by one person (representative), by virtue of his authority on behalf and in the interests of another person (represented), transactions and other legal actions, as a result of which civil rights and obligations are created, changed and terminated for the represented.

In order to protect the interests of the represented representative, it is prohibited to make transactions on his behalf in relation to himself personally, as well as in relation to another person, whose representative he is at the same time (except in cases of commercial representation).

It is not allowed to make a transaction through a representative, which, by its nature, can only be made personally, as well as transactions specified in the law (testament, annuity).

The institution of representation already existed in ancient Rome. It arose due to the fact that the subjects of civil legal relations could not always participate in them personally.

The subject of representation is legal actions, in particular transactions.

Represented can be any subjects of civil law: individuals, legal entities, the Russian Federation, subjects of the Russian Federation and municipalities.

Representatives persons who carry out representative activities are called. They can be only two types of subjects of civil relations: citizens and legal entities. To do this, citizens must be legally capable, and legal entities exercising representation must not go beyond their statutory legal capacity. Participants in transactions (they can be any subjects of civil legal relations) must check the proper execution of the powers of representatives through whom they carry out transactions.

The authority of a representative must be distinguished from the authority a person who also acts in the interests of others, but on his own behalf. Such persons include:

▪ commercial intermediary - a person who facilitates the completion of a transaction, but does not complete it;

▪ bankruptcy trustee - a person who disposes of the debtor’s property during his bankruptcy;

▪ executor - a person who performs actions to execute a will in the interests of the heirs;

▪ a person authorized to enter into negotiations regarding possible future transactions;

▪ messenger - a person conveying someone else's will;

▪ signer - a person who signs a transaction for a subject who is unable to sign with his own hand;

▪ commission agent - a person who undertakes, on behalf of another party (the principal) for a fee, to carry out one or more transactions on his own behalf, but at the expense of the principal;

▪ a third party under an agreement in favor of a third party - a person who has the right to demand from the debtor the fulfillment of an obligation in his favor.

24. GROUNDS FOR ORIGIN AND TYPES OF REPRESENTATION

Grounds for the emergence representations:

▪ expression of the will of the represented (it can be reflected either in a power of attorney or in an agreement);

▪ legal facts specified in the law (for example, parents are the legal representatives of their children without special powers under the Family Code of the Russian Federation);

▪ act of an authorized body allowing a person to act as a representative;

▪ the presence of a person in a certain place (for example, the presence of a store cashier in the cash register room).

Depending on the presence or absence of the will of the represented, two types of representation are distinguished:

▪ legal representation - representation arising by virtue of the instructions of the law and independent of the will of the represented (for example, trade unions are representatives of the interests of workers);

▪ voluntary representation - representation carried out in accordance with the will of the person represented (for example, a lawyer-attorney represents on the basis of an agreement with a specific person and a warrant).

The authority of a representative may be apparent from the environment in which he acts. This applies to employees (salespeople, cashiers, etc.) who make a limited range of transactions on behalf of the organization in a specific location.

A type of voluntary representation is commercial representation. This is a new institution in Russian law; its peculiarity is that this person constantly and independently represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity, and simultaneous representation of different parties to the same transaction is allowed. This institute is paid. The form of the agreement must be in writing. A commercial representative is obliged to carry out instructions and carefully keep confidential information that has become known to him in the process of carrying out trade transactions, both during the execution of the order and after its execution.

Evidence of the authority of a voluntary representation is that the representative has powers of attorney.

25. POWER OF ATTORNEY

Power of attorney (d-t) - a written authorization issued by one person (principal) to another person (represented) for representation before third parties; a one-way deal, but the representative accepting the authority must agree to that authority. Issuance of documents on behalf of several persons is allowed. One or more persons may also act as representatives.

Requirements for Dr. Form d-ty is determined by the form of those transactions that will be concluded with its help: on behalf of the legal entity must be certified by the signature of its head, and if this legal entity is based on state or municipal property, then the number must also be signed by the chief accountant; e-th "simplified form" (for salaries, pensions, etc.) can be certified at the place of work, study, residence of the principal, the administration of the medical institution in which the principal is being treated.

To notarized d-tyam are equated: 1 ) d-ti military personnel, certified by the head, his deputy, senior or duty doctor of the hospital or sanatorium;

2) d-ti military personnel, certified by the commander of the military unit in the absence of a notary's office at the location of this unit;

3) d-ti persons serving sentences in places of deprivation of liberty, certified by the head of the corresponding place of deprivation of liberty.

Types of doctors: general (issued for all transactions); special (issued for a number of homogeneous transactions); one-time (issued for one transaction).

D-ti are issued for a certain period. The maximum period is three years. D-th, in which the validity period is not specified - one year. A document that does not indicate the date of its issue is invalid (void).

D-t on behalf of a legal entity issued under the signature of its head or authorized person with the seal of this organization. On behalf of a legal entity based on state or municipal property, for the receipt (issuance) of material assets - also the signature of the organization's chief accountant.

Requirements for a representativewho received the following:

1) the actions provided for in d-ti must be performed personally by him;

2) transfer of authority is possible if the principal has provided for this in the d-ti or if the representative is forced to transfer his authority due to the prevailing circumstances in order to protect the interests of the principal;

3) the person who transferred his powers to another person is obliged to inform the principal about this;

4) retrust - only in a notarial form, with the exception of "simplified" d-tey.

The rights and obligations of the principal and representative are annulled in the event of the termination of the institution.

Grounds for terminating d-ti: expiration of its term; its cancellation by the person who issued it; refusal of the person to whom the certificate was issued; termination of the legal entity on behalf of which it was issued (or to which it was issued); death, recognition as incapacitated, with limited legal capacity of the issuer or to whom a doctor was issued. The terminated date must be returned by the representative to the principal or his legal successor (in the event of the death of the principal).

26. CONCEPT AND TYPES OF TERMS

Period - a kind of legal facts (event), a certain moment or period of time, with the onset or expiration of which the legislation connects the emergence, change or termination of civil legal relations, with the expiration of which legal consequences occur. The term can be determined by a calendar date, the expiration of a period of time, an indication of an event that must inevitably occur.

Terms calculation rules:

▪ terms can be calculated in minutes, hours, days, weeks, months, years;

▪ the period begins the next day after the calendar date or event with which its beginning is associated;

▪ rules for determining the end of a period depend on the unit by which the period is measured:

▪ the period, calculated in days, expires at 24.00 of the last day of the period (if an urgent action is performed in the organization - at the moment of termination of the relevant operations);

▪ a period calculated in weeks expires on the corresponding day of the last week of the term;

▪ the period calculated in half a month expires on the fifteenth day from the beginning of the calculation;

▪ a period calculated in months expires on the corresponding date of the last month of the period, and in its absence - on the last day of this month;

▪ the period calculated in quarters expires in the same way as months, counting a quarter as 3 months (quarters are counted from the beginning of the year);

▪ a period calculated in years expires on the corresponding date and month of the last year of the term. If the last day of the term is a non-working day, the end of the term is considered to be the nearest next working day.

Types of terms varied, they are classified according to the following criteria:

▪ according to the subject of establishment, the terms differ as legal, contractual, judicial;

▪ according to legal consequences, terms are divided into law-forming, law-changing and law-terminating;

▪ according to the degree of obligation for the parties to a civil legal relationship, terms are divided into imperative (unchangeable) and positive (changeable);

▪ according to the degree of distribution, terms are divided into general and special;

▪ according to the degree of certainty, terms are divided into absolutely certain, relatively certain and uncertain;

▪ according to the purpose, the terms are divided into terms for the exercise of civil rights, terms for the performance of duties and terms for the protection of civil rights;

▪ the periods for the exercise of civil rights are divided into the periods of existence of civil rights, pretrial periods, claim periods, warranty periods, expiration dates, service periods, periods for the sale of goods, periods for storing goods;

▪ deadlines for fulfilling duties are divided into general and intermediate.

Terms of protection of civil rights - the terms established by law for the requirement from the competent authorities to enforce the violated right of the subject.

27. LIMITATION PERIOD, START OF THE LIMITATION PERIOD

Limitation period (ID) - the term for the protection of the right on the claim of the person whose right has been violated. During the period of ID, state bodies, in particular the court, must contribute to the restoration of the violated right of the subject by satisfying the requirement specified in his claim. The expiration of the statute of limitations extinguishes the right of the plaintiff to the protection of his interests in a compulsory jurisdictional procedure.

Rules regarding ID period:

1) the requirement to protect the violated right is accepted for consideration by the court, regardless of the expiration of the ID;

2) The ID is applied at the request of the party to the dispute;

3) a statement on the application of the ID must be made before the court makes a decision on the case;

4) expiration of the ID - the basis for the defendant to reject the claim of the plaintiff;

5) in the absence of the defendant's statement about the expiration of the term of the ID in court, the claim is subject to satisfaction, despite the fact that the term of the ID on demand has expired.

The ID is associated with: the right to claim in a material sense (the right to seek compulsory protection from the court) and right to sue in a procedural sense (right to sue).

Types of ID terms: general term - three years; special terms - modified in relation to the general term (upon a demand to declare a voidable transaction invalid and apply the consequences of its invalidity; on claims of creditors who have not received notification of the sale of an enterprise, as well as on the recognition of an agreement on the sale of an enterprise as invalid - 1 year). The terms of ID and the procedure for their calculation cannot be changed by agreement of the parties. ID rules apply to all civil legal relations.

ID does not apply on: claims arising from violation of personal non-property rights and personal non-property benefits; requirements of depositors to the bank for the issuance of deposits; claims for compensation for harm caused to the life and health of citizens; claims of the owner or other owner to eliminate violations of his rights. These claims may be granted by the court at any time.

Beginning of the ID period. As a general rule - from the day when the person learned or should have learned about the violation of his right.

Exceptions Established by law.

1. For obligations with a certain period of fulfillment - at the end of the term for fulfilling the obligation.

2. For obligations with an indefinite period of fulfillment or if the period is determined by the moment of demand - from the moment the creditor has the right to present his claim to the debtor for the fulfillment of the obligation.

3. When granting the debtor a grace period to fulfill the creditor's demands - after the end of the grace period.

4. When delivering goods of inadequate quality - from the date of drawing up the relevant report on these defects.

5. According to the requirements of cargo senders to carriers - from the moment of receipt of a response to the claim or upon expiration of the period established for response to the claim.

28. BREAK, SUSPENSION, RESTORE OF THE LIMITATION PERIOD

In the event of circumstances preventing the filing of a claim, suspension, interruption and restoration of the limitation period are possible.

The limitation period is suspended:

▪ if the filing of a claim was prevented by an extraordinary and unavoidable circumstance - force majeure;

▪ if one of the parties to the obligation is part of the Armed Forces transferred to martial law;

▪ if the Government of the Russian Federation establishes a delay in the fulfillment of this obligation - a moratorium;

▪ due to the suspension of the normative act regulating the relevant relations.

The above obstacles to filing a claim are taken into account by the court only if they arose in the last six months of the limitation period, and if the limitation period is six months, then during the entire limitation period.

After the termination of the circumstance that served as the reason for the suspension of the limitation period, the period continues. In this case, the remaining part of the limitation period is extended to six months, and if the limitation period is six months, then until the end of this period.

RџSЂRё statute of limitations the time that has elapsed before the occurrence of the circumstance that served as the basis for the break shall not be included in the limitation period. It begins to flow anew and continues for the time prescribed by law.

The grounds for interrupting the limitation period are the following two circumstances:

▪ filing a claim by the creditor in court;

▪ recognition of debt by the debtor.

The missed limitation period may be restored by the court if the reason for missing the limitation period is recognized by the court as valid.

Restoration of the missed statute of limitations is an exceptional measure and is applied only under the following conditions:

▪ the missed deadline was related to the identity of the debtor;

▪ the circumstances that caused the limitation period to expire arose in the last six months of the limitation period, and if this period was equal to six months, then during this entire period.

A debtor who has performed an obligation after the expiration of the limitation period shall not be entitled to claim back the performance. Upon the expiration of the limitation period for a claim related to the main obligation, the term for the claim also expires for an additional obligation ensuring the fulfillment of the main obligation.

If the claim is left by the court without consideration, then the limitation period that has begun until the claim is filed continues in the general manner.

29. SUBJECTIVE CIVIL RIGHTS AND DUTIES. EXERCISE OF SUBJECTIVE CIVIL RIGHTS

The content of civil legal relations is the subjective rights and obligations of participants in civil legal relations.

Subjective civil law - measure of permitted behavior of the subject of civil legal relations; consists of legal possibilities called entitlements.

Types of powers: the authority of the claim; the right to own actions; powers of defense.

Subjective duty - a measure of proper behavior of a participant in a civil legal relationship; is reduced to the performance by the subject of certain actions or to abstaining from them.

Grounds for the emergence of civil rights: from transactions; acts of state bodies and local governments; court decision; as a result of the acquisition of property; as a result of the creation of objects of intellectual activity; as a result of causing harm to another person; due to unjust enrichment. It is necessary to know when the right arose and when it will end (the right of ownership of the property arises from its acquirer, as a rule, upon the transfer of this property, but the right of ownership of real estate arises from the moment of state registration of the relevant transaction).

Implementation of subjective civil law - implementation by the authorized person of the opportunities contained in this right. It can be personal or through a representative.

Ways to exercise subjective civil rights. Actual - actions that do not give rise to legal consequences (for example, the owner of a land plot using it to grow vegetables); legal - actions that give rise to legal consequences (for example, concluding transactions, in particular, accepting an inheritance).

Subjective rights must be exercised within certain limits: within certain time frames, forms, certain means of protection and according to certain rules.

Rules for the exercise of subjective civil rights

1. The exercise of civil rights occurs by performing actions or refraining from performing them.

2. Citizens and legal entities exercise their rights at their own discretion and in accordance with their interests.

3. The refusal of the subject from the right belonging to him does not entail the termination of this right, and sometimes does not have legal force.

Limits of exercising subjective civil rights.

Subjects of civil law are obliged: exercise civil rights in accordance with their purpose; not violate the rights and legitimate interests of other persons; not allow actions carried out solely with the intent to harm another person; not allow actions that restrict or eliminate competition; act reasonably and in good faith; observe the norms of morality and other norms accepted in society, etc.

abuse of right - actions of subjects of civil legal relations, committed within the framework of the rights granted to them, but in violation of their limits.

30. CIVIL LIABILITY, ITS TYPES AND SIGNIFICANCE

Civil liability - secured by state coercion, adverse consequences for the offender of non-fulfillment or improper fulfillment of his duties, which entailed a violation of the subjective civil rights of another person, expressed in the imposition of a civil duty on the offender, restriction or deprivation of his right belonging to him.

Types of civil liability:

▪ tort (arises from causing harm) and negotiable (determined by the parties in their agreement); the first type is regulated only by law, and the second - both by law and by agreement;

▪ subsidiary (additional) responsibility, jointly responsibility and equity a responsibility. The listed types of responsibility arise in obligations with multiple subjects. They differ in the rules of behavior of the creditor at the time of foreclosure. In case of subsidiary liability of the debtor, the creditor must present a claim against the main defendant, and only in case of non-satisfaction - against the subsidiary debtor. Joint and several liability is possible only in cases stipulated by the contract or law. With joint and several liability, the creditor may demand the recovery both from all debtors jointly, and from any of them separately, both in full and in part of the debt. Shared liability occurs in cases where the law does not provide for joint and several liability. The volume of shared liability of each of the debtors is equal, unless otherwise follows from the law. Each debtor is liable to the creditor only within the limits of his share;

▪ recourse liability arises when the debtor, who has fulfilled the obligation to compensate for harm for its causer, makes a claim to this causer for reimbursement of the costs incurred.

The meaning of civil liability: is a kind of sanctions (a sanction is understood as the consequences established by law or an agreement for the violator in case of non-performance or improper performance of his duties). Another kind of sanctions are measures to protect civil rights aimed at: preventing and suppressing violations of rights; restoration of violated interests of the parties; protection of law and order.

Civil liability can be applied as an independent type of liability, or in combination with other types of liability. For example, a civil lawsuit in a criminal trial.

Functions of civil liability:

▪ preventive and educational;

▪ repressive;

▪ compensation;

▪ signaling.

31. CIVIL LIABILITY: GROUNDS FOR ORIGIN AND RELEASE

Grounds for civil liability - the presence in the actions of the violator of the composition of a civil offense, i.e., the totality of conditions necessary for the application of measures of responsibility.

Terms of civil liability: illegal behavior of the offender; the presence of the fault of the tortfeasor; the presence of property damage as a result of the unlawful behavior of the offender; a direct causal relationship between the wrongful behavior of the violator and the resulting harm (the last two conditions are necessary for the onset of property liability in the form of damages).

Illegal behavior - an act or omission that violates the law. Illegal action - if it is expressly prohibited by law or contrary to the basis of the obligation (law, contract). Omission to act is illegal if a person has a legal obligation to perform a certain action.

Are not unlawful actions committed: within the limits of necessary defense; in a state of emergency; in the process of exercising the professional duties of some specialists; with the consent of the victim in cases where they are committed within the limits established by law.

Harm - the consequences of the offense, expressed in the derogation of a subjective civil right or benefit (the concept of "harm" coincides with the concept of "damage", but does not coincide with the concept of "losses").

Harm can be caused to a person or property, therefore, there are types of harm: property - consequences that have a cost (monetary) assessment and non-property damage (sometimes moral and physical) - the consequences of an offense that do not have a value expression.

Fault - the mental attitude of a person in the form of intent or negligence to his unlawful behavior and its results. The concept of guilt applies to citizens and legal entities. There is a presumption of guilt of the debtor: a person who has violated an obligation is considered guilty and is liable if he does not prove his innocence. However, there are cases of liability and no fault.

Grounds for exemption from civil liability:

1) event - a circumstance indicating the absence of guilt of the participants in the obligation, since the event is unforeseen and subjectively unavoidable (it could be prevented if the participants knew about its result);

2) force majeure - a circumstance independent of the will of the participants, characterized by extraordinary and objective inevitability (this circumstance could not be eliminated by the participants in the obligation, even if they knew about its results). The occurrence of such a circumstance is not related to the activities of the responsible person;

3) fault in the form of intent of the injured party.

32. FORMS AND SIZES OF CIVIL LEGAL LIABILITY

Principles of civil liability: inevitability of responsibility; individualization of responsibility; full compensation for damages.

Forms of civil liability: damages, forfeit, compensation in kind, loss of deposit, confiscation. Losses incurred as a result of violation of the right are subject to compensation in full by any violator of the right: a citizen, a legal entity, the state. In cases where the violator of the right is a state or municipal body or an official of these bodies, the damage is compensated by the Russian Federation, its subject or municipality.

Amounts of civil liability:

a) the penalty is determined in accordance with the contract or law;

b) the amount of losses is determined at the price existing on the day the claim is satisfied, if they are reimbursed by the debtor voluntarily. If the satisfaction of the claim occurs in a judicial proceeding, then the losses can be calculated based on the prices that were on the day the claim was filed or on the day the decision was made by the court;

at) the amount of profit lost by the creditor should not be less than the amount of income received by his debtor - the offender;

d) in case of compensation for harm in kind, the thing presented by the debtor must be of the same kind and quality;

d) a reduction in the amount of liability is allowed if both parties or the creditor are at fault;

f) the court may reduce the amount of compensation for harm caused by a citizen, depending on his property status (except in cases where the harmful actions of the debtor were intentional);

g) the agreement of the parties on the limitation of the liability of the debtor in cases where the creditor is the consumer is void;

with) an increase in the amount of liability by the parties is possible only in cases provided for by law, this also applies to a legal penalty;

and) the law or the contract may provide for the collection of an exceptional or alternative penalty;

to) losses on a monetary obligation are not recoverable if they are equal to a penalty;

l) the amount of compensation for harm caused to health or life, in cases where the harm is related to labor relations, is determined as a percentage of the earnings of the injured person, etc.

Limitation of the debtor's liability may be established both by agreement of the parties and by law. For example, the law limits liability either for obligations associated with a certain type of activity (eg, the carrier's liability for loss of cargo is limited to compensation for actual damage), or for certain types of obligations.

Additional measures to protect the interests of the victim:

a) when indemnifying for damages, the prices that were in force at the moment of fulfillment of the obligation, or at the moment of filing a claim, or at the moment of a court decision, are taken into account;

b) if the person who violated the right received income as a result, the victim has the right to demand compensation for damage.

33. PROPERTY, PROPERTY, PROPERTY RIGHT

Real right - the right that ensures the satisfaction of the interests of the authorized person by directly influencing the thing in his possession, without the assistance of other persons. With the help of rights in rem, property relations are realized. There are two groups of property rights: the rights of owners; rights of non-owners.

Signs of property rights:

1 ) they are absolute; the bearer of the absolute right is opposed by an indefinite number of obligated persons, which means: the owner can demand from any person that he does not take actions that prevent him from exercising the powers of the owner;

2) objects of property rights are things;

3) to protect all rights in rem, regardless of which group they are in, the same methods of protection are used.

Real rights differ in the scope of powers: the owners have the most complete powers - they can perform any actions that do not contradict the norms. The rights of subjects of other property rights are limited by law. Real rights are perpetual.

The meaning of property law consists in the fact that it fixes the relation of a person to a thing, allowing the bearer of a property right to satisfy his interests with the help of this thing.

Property - This is an economic category that reflects the relationship between people about things.

Ownership features: it is a social, property, volitional relation.

The concept of "ownership" is considered in two senses: objective and subjective. AT objective sense - a set of legal norms that regulate relations between people about things. These norms form a sub-branch of civil law. AT subjective sense - the opportunity assigned to the owner to exercise his powers in his own interests, without contradicting the law.

The concept of "the content of the right of ownership" refers to the right of ownership in the subjective sense.

Contents of ownership - these are the three powers of the owner:

1 ) possession - the actual possession of a thing (distinguish between legal and illegal possession, title possession, bona fide and bad faith possession);

2) use - the right to extract its useful properties from a thing in the process of personal or industrial consumption;

3) disposition - the right to determine the legal fate of a thing.

Obligations of the owner in the exercise of his rights:

▪ take measures to prevent damage to the life and health of citizens and the environment;

▪ refrain from behavior that disturbs his neighbors and other persons;

▪ refrain from actions performed solely with the intention of causing harm to others;

▪ in cases specified by law, allow limited use of your property by other persons.

The right of ownership may be limited only by federal laws to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

34. TYPES OF PROPERTY RIGHTS. GROUNDS FOR ORIGIN AND TERMINATION

There is no definition of the concept of ownership in the legislation.

Form of ownership - a feature of the legal regime of the object in relation to certain types of subjects of civil law, property can be in the form: private (citizens and legal entities); state (public) (Russian Federation, subjects of the Russian Federation); municipal (its subjects are municipalities).

Type of ownership - an indication of how many subjects own the same object. If the thing is owned by one subject - the right personal property, if the thing is owned by several subjects - common property right. The right of common ownership is divided into: the right of joint ownership and the right of shared ownership.

Grounds for the emergence of ownership (titles of ownership) - certain legal facts, which are divided into: initial - not dependent on the rights of the previous owner to this thing and derivatives - in which the right of ownership is based on the right of the previous owner (most often under an agreement with him).

Initial grounds for the emergence of ownership: making a new thing; processing, specification; conversion to the ownership of public things; acquisition of ownership of ownerless property; finding a thing; detention of neglected animals and their maintenance; treasure discovery; acquisitive prescription.

Derivative grounds for the emergence of ownership: nationalization; privatization; acquisition of the right of ownership to the property of a legal entity during its reorganization and liquidation; foreclosure on the owner's property for obligations; requisition; confiscation, etc.

The right of ownership of the purchaser of the thing under the contract arises, as a rule, from the moment of its transfer. The transfer of a thing is carried out in the following ways: by handing over the thing itself or by symbolically transferring it (for example, handing over the keys to an apartment to its buyer); delivery of things to the post office for its dispatch (for example, when sending a parcel, parcels); handing over things to a transport organization for delivery to another person. If the alienation of property is subject to state registration from the moment of such registration.

In the process of transferring a thing, the risk of accidental loss or accidental damage to property shall be borne by its owner, who was in possession of the thing at the time of its destruction, unless otherwise provided by law or contract. The owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract.

Ownership terminates: in case of alienation by the owner of his property to other persons, refusal of the owner from the right of ownership, loss or destruction of property, in case of loss of the right of ownership to property in other cases provided by law.

Compulsory seizure of property from the owner is not allowed, except for a number of cases provided for by the Civil Code of the Russian Federation (foreclosure on property for obligations; alienation of real estate in connection with the withdrawal of a site; requisition; confiscation).

35. RIGHT OF PRIVATE PROPERTY OF CITIZENS

Right of private property - one of the forms of ownership, meaning the absolute, legally protected right of the owner to exercise the powers of the owner in relation to specific property, including the means of production.

The concept of "private property" was absent in Soviet legislation.

Types of private property rights:

▪ the right of private property of citizens;

▪ the right of private property of legal entities.

The right of property of citizens in an objective sense - a set of norms regulating relations for the exercise by citizens of the three powers of the owner. These norms constitute the institution of property rights of citizens.

The right of property of citizens in the subjective sense - the possibility of citizens, provided by law, by their actions to exercise the three powers of the owner within the limits established by law, that is, to own, use and dispose of their property at their own discretion by committing any actions with respect to this property that do not contradict the law and do not violate the rights and legitimate interests of others persons, as well as the ability to eliminate the interference of all third parties in the sphere of their economic dominance over their property.

Citizens' property right refers to private ownership.

The main source of the emergence of a citizen's property right is his labor activity. However, the grounds for the emergence of property rights and ways to secure it for him depend on the labor status of a citizen: whether he is an employee, or an individual entrepreneur, or an entrepreneur who has created a legal entity.

Exercise of the right of ownership by a citizen happens according to the principle: everything that is not prohibited by law is allowed to him.

Features of objects of property rights of citizens:

▪ citizens may own any objects, except those specified in the law;

▪ the quantity and quality of objects that citizens may have is not limited, except in cases specified in the law;

▪ restrictions on the quantity and quality of objects that may be owned by citizens are allowed only in the interests of protecting the constitutional system, defense of the country, morality, health and interests of other persons;

▪ transactions of citizens with real estate are subject to state registration, and the owner of the real estate is subject to tax;

▪ vehicles and weapons belonging to citizens are subject to special registration;

▪ to purchase some objects, citizens are required to obtain a special permit (this applies, for example, to the purchase of firearms, potent poisons, etc.);

▪ citizens keeping livestock must comply with veterinary and sanitary rules;

▪ citizens who are owners of a land plot are obliged to take care of the fertility of the land;

▪ the rules by which citizens receive dividends from a joint-stock company are determined by the constituent documents of the joint-stock company.

36. RIGHT OF PRIVATE PROPERTY OF LEGAL ENTITIES

The right of ownership of legal entities refers to the private form of ownership. Legal entities, with the exception of unitary enterprises and institutions, are the sole owners of their property. This means that, as a general rule, the founders (participants) of a legal entity do not have any ownership of its property. They have only the right of ownership to their shares in the authorized capital of a legal entity or to its shares.

Ownership of legal entities in an objective sense - a set of legal norms that fix the three powers of the owner. These norms form the institution of property rights of legal entities.

Ownership of legal entities in the subjective sense - the opportunity provided by law for legal entities to exercise the three powers of the owner by their actions.

Grounds for the acquisition and termination of the ownership of legal entities are the general grounds for acquiring property rights provided for by the Civil Code of the Russian Federation. However, the law may establish other ways of forming property, for example, the property of charitable organizations may be formed at the expense of charitable donations, funds received from the state and local budgets.

The object of the property right of legal entities may be any property, with the exception of that which, by law, can only be in state or municipal ownership. The property of religious organizations occupies a special position. These organizations are the owners of the property they have acquired and can use it to achieve the goals stipulated by their founding documents. When such an organization is liquidated, the property is not returned to their founders, since they cease to be its owners at the moment of transfer to other organizations.

The property of legal entities acquired illegally must be alienated by the owner within one year. This provision also applies to other subjects of civil law. The property of legal entities is divided into fixed and current assets and is subject to accounting of a legal entity.

Features of property rights of legal entities

1. The scope of powers of a legal entity as the owner of its property depends on whether it is commercial or non-commercial (commercial organizations have more powers than non-commercial ones, since they have general legal capacity).

2. Legal entities, owners of their property, exercise the powers of the owners in the course of the activities of their bodies (general meeting, directorate, etc.).

3. The owners of a legal entity themselves determine the limits of their powers by establishing them in the constituent documents.

4. The founders of legal entities - owners of property - do not have a proprietary right to the property of these legal entities.

5. For various organizational and legal forms of legal entities.

37. STATE PROPERTY RIGHT

The state as a subject of property rights occupies a special place among other subjects of property. This is explained as follows: until 1990, state ownership was leading in relation to other forms of ownership; the state had a number of advantages over other owners; now part of the state's property has been transferred to other subjects, and its owner's powers have been equalized with the powers of other subjects.

The right of state property in an objective sense - a set of legal norms that fix the three powers of the owner of the Russian Federation and its subjects in relation to state (public) property. These norms form the institution of state property law.

The right of state property in the subjective sense - three powers of the owner belonging to the state, which are carried out taking into account the interests of the whole people. State property must be used by state property entities for its intended purpose.

Subjects of state property rights are: RF, its subjects.

Features of objects of state property rights: their circle is unlimited; they include property that is the exclusive property of the state (which is used only in the interests of the people or to serve special state needs, it cannot be in private ownership): subsoil, forest resources, water resources, resources of the continental shelf; objects of cultural and historical heritage, property of the state treasury, nuclear power facilities, poisonous and narcotic substances, etc.

Property owned by the state is divided into two parts: assigned to legal entities on the right of economic management and operational management and not assigned to legal entities (it constitutes the state treasury). The state treasury includes: funds from the federal budget, the Pension Fund of the Russian Federation, the Social Insurance Fund and other non-budgetary funds of the Russian Federation, the Fund of the Central Bank of the Russian Federation, gold reserves, etc. The object of collection of creditors for state debts can only be property not assigned to legal entities . Such an object is budget funds. State property is subject to registration in the appropriate register of federal state property (property of subjects of the Russian Federation).

Grounds (methods) for the emergence and termination of state property rights: general civil (characteristic for other subjects); special methods (characteristic only for the state) - nationalization, requisition, collection of taxes and obligatory payments, transfer to the state by the right of inheritance of escheated property, forced seizure of property, including by buying it out. A special ground for termination of the right is privatization.

The state exercises the rights of the owner, while acting in economic circulation through its bodies with appropriate competence, the main state body is the Federal Agency for Federal Property Management.

38. RIGHT OF MUNICIPAL PROPERTY

The right of municipal property belongs to public law. It is an independent form of ownership. The three powers of the owner in this form of ownership are exercised by the representative body, taking into account the opinion of the population of the municipality and in its interests. Municipal formation - formation in which there is a self-government body (cities, districts in cities, towns, villages, etc.).

Subjects of municipal property law - municipalities. Management of municipal property is carried out by the bodies:

1) representative (elected bodies);

2) local authorities;

3) municipal enterprises and institutions to which municipal property is assigned on the basis of the right of economic management or operational management.

Objects of municipal property law - local budget funds, municipal off-budget funds, property of local governments, as well as municipal lands and other natural resources owned by municipalities, municipal enterprises and organizations, municipal banks and other financial and credit organizations, municipal housing stock and non-residential premises, municipal institutions of education, healthcare, culture, etc.

Features of municipal property

1. Municipal property is divided into two parts: one part is assigned to municipal enterprises and institutions on the right of economic management or the right of operational management, the second part makes up the treasury of the municipal entity, which includes funds from the local budget and other municipal property not assigned to municipal enterprises and institutions.

2. A number of objects are exclusively municipal property, i.e. objects are withdrawn from civil trade turnover (municipal institutions of education, health care, culture, sports).

3. Municipal property objects are intended to resolve issues of local importance: to meet the housing, communal, socio-cultural needs of the population of a given territory (target nature).

Grounds for the emergence of the right of municipal property: general civil and special.

Special - receipt of funds from privatization; amounts of money paid in the form of taxes and fines; payment for the use of natural resources; state property transferred to the municipal fund; funds deducted by the Russian Federation from collected taxes, and funds allocated to it for the implementation of certain state powers, etc.

Powers of local self-government bodies to manage municipal property: transfer of municipal property for temporary or permanent use to individuals or its alienation (ie, transactions); creation of municipal enterprises and institutions; determination of goals, conditions, procedures for the activities of enterprises and institutions that are in municipal ownership; management of local budget funds; privatization.

39. CONCEPT OF INHERITANCE

Inheritance - transfer of property and property rights and obligations of a deceased person (testator) to living persons (heirs) in the order of universal succession in an unchanged form as a whole and at the same moment. The main legal source regulating inheritance is the Civil Code of the Russian Federation, part three.

A feature of hereditary succession is its universality: all the rights of the deceased are transferred as a whole, and at the same time and without the mediation of third parties. As a result of succession, a hereditary legal relationship arises. The hereditary legal relationship has the following structure: objects, subjects, content (powers of heirs). In addition, the grounds for the emergence of a hereditary legal relationship are distinguished.

The object of the inheritance relationship are things belonging to the testator on the day of opening the inheritance, as well as property rights that are not related to the personality of the deceased. The totality of transferable rights and obligations - inheritance (hereditary mass).

Subjects of inheritance legal relationship - testator and heir.

testator can only be an individual. In cases where the testator makes a will, he must be capable. One and the same testator may have several heirs. The hereditary shares of such heirs are assumed to be equal.

heirs can be all subjects of civil law: individuals and legal entities, the state.

State may be an heir in the following cases:

1 ) if the property was bequeathed to him by the testator;

2) the testator has no heirs;

3) all heirs are deprived by will of the right to inherit;

4) all the heirs refused to inherit. In cases where an individual is limited or completely deprived of legal capacity, his representatives enter into the inheritance: trustees and guardians.

Necessary heirs - the share of inheritance is determined for them by law, regardless of the content of the will (minor and disabled children and spouse, parents and dependents of the testator), they are supposed to ¹/₂ the share they would have received had they inherited by law.

Unworthy heirs - persons excluded from inheritance either by law or by the testator:

1 ) parents deprived of parental rights, as well as parents who maliciously evade the maintenance of children (they cannot inherit after their children by law);

2) heirs who contributed by deliberate, illegal actions to calling them to the inheritance (actions must be directed against the testator or against other heirs). This fact must be established by the court.

Heirs by right of representation - descendants of heirs who died before the opening of the inheritance.

The basis for the emergence of a hereditary relationship is the discovery of inheritance. The legal facts that give rise to the opening of an inheritance are the death of the testator or a court decision declaring him dead.

40. INHERITANCE BY WILL

testamentary succession - one of the types of inheritance, occurs when the deceased person left an order regarding his property in the event of his death. This order is called will.

Drawing up a will is a unilateral transaction, since it expresses the will of one person - the compiler. This deal is conditional, since the order will come into force only in the event of the death of its originator. Since the moment of its entry into force will be the moment of the originator's death, this transaction should be considered "conditional, made under a suspensive condition."

The choice of heirs and the principle of distribution of property between heirs is the prerogative of the testator only. This is where the "free will" comes into play. It is limited by the rules on the mandatory share in the inheritance, which must not be less than half of the share that would be due to the person when he inherits by law.

A will can be made in the following way:

▪ certified by a notary;

▪ certified by an official specified in the law;

▪ drawn up in simple written form in the presence of two witnesses under extraordinary circumstances and handed over to a notary in a sealed envelope, such a will is called a closed will.

Special methods of orders used in the preparation of a will:

▪ sub-appointment of a reserve heir in the event of the death of the main heir by the time the will comes into force;

▪ imposing on the heir the obligation to perform socially useful actions;

▪ appointment of the executor of the will - executor;

▪ testamentary refusal (legate) - entrusting the heir with the fulfillment of an obligation in favor of a specific person (legatee).

The secret of the preparation and content of a will is protected by law. The testator must be legally capable and make a will in person. A will, like any transaction, can be declared invalid both in whole and in part. Invalid wills and the consequences of their invalidity are subject to the statute of limitations. A will can be changed and revoked by the testator during his lifetime. Corrections are not allowed.

Principle "hereditary transmission": the rights of an heir who died during the period of entry into the inheritance are transferred to his heirs.

41. INHERITANCE BY LAW

Legacy Inheritance arises if the deceased person did not leave a will. Then a limited circle of persons acts as heirs - only those indicated in the law.

Circle of legal heirs split into queues.

1-I turn: children, spouse, parents of the testator inherit. The grandchildren of the testator and their descendants inherit by right of representation;

2-I turn - inherit the brothers and sisters of the testator, his grandfather and grandmother. The nephews and nieces of the testator inherit by right of representation;

3-I turn - inherit uncles and aunts of the testator. Cousins and sisters of the decedent inherit by right of representation;

4-I turn - inherit the great-grandfathers and great-grandmothers of the testator;

5-I turn - inherited by cousins and granddaughters and grandparents of the testator;

6-I turn - great-great-grandchildren and great-granddaughters, as well as great-uncles and aunts of the testator inherit;

7-I turn - stepsons, stepdaughters, stepfather and stepmother of the testator inherit.

Order of succession by law - the heirs of each successive line are called to inherit only if there are no or no heirs of the previous line. In this case, the heirs of the same order inherit in equal shares, with the exception of the heirs by right of representation and the surviving spouse.

Disabled dependents of the testator inherit in a special order. Dependents from the second to the seventh order inclusive, but not included in the circle of heirs of the line called for inheritance, inherit on an equal basis with the heirs of the line called for inheritance, but on condition that they have been dependent on the testator for at least one year. The same rule applies to dependents who are not legal heirs, provided that there are other heirs. However, in the absence of other heirs, they inherit independently as heirs of the eighth line.

The right to an obligatory share in the inheritance. The testator's minor or disabled children, his disabled spouse and parents, as well as the testator's disabled dependents who are subject to inheritance, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law (mandatory share). Heir by law cohabitant before his death, has a preferential right to ordinary household furnishings at the expense of his inherited share.

When inherited by law, "presentation principle": the share of the deceased heir passes to his descendants if the heir died before the testator.

Shares of heirs by law, they are assumed to be equal, but the share of the surviving spouse is always greater, since, in accordance with the Family Code of the Russian Federation, he has the right to half of the property acquired by him jointly with the deceased spouse - the testator.

Principle "hereditary transmission": the rights of an heir who died during the period of entry into the inheritance are transferred to his heirs.

42. ORDER OF ACQUISITION OF INHERITANCE. DISCOVERY AND PROTECTION OF HERITAGE

Acquisition of an inheritance includes:

▪ filing by heirs of an application for acceptance of inheritance;

▪ submission by heirs of an application for the issuance of a certificate of right to inheritance;

▪ receipt by the heir of a certificate of right to inheritance.

But the acquisition of an inheritance is preceded by two more legal facts: the opening of an inheritance and the adoption of measures to protect it.

The opening of the inheritance occurs at the time of the death of the testator, or from the moment the court declares the testator dead, or on the day of the alleged death of the testator from an accident. The date of death of the testator is confirmed by a medical certificate or a court decision. Citizens who die on the same day do not inherit each other.

The following circumstances are associated with the opening of the inheritance:

▪ circle of heirs called to inheritance;

▪ composition of inherited property;

▪ deadlines for filing claims by creditors;

▪ the moment of emergence of the heirs' right to the inherited property;

▪ deadline for issuing a certificate of inheritance;

▪ legislation to be applied in inheritance.

Place of opening of inheritance the last permanent place of residence of the testator is recognized, and if it is unknown, then the location of his property. It is proved by certificates of housing and communal authorities, local administrations, police departments, a certificate from the place of work of the testator, as well as an extract from the house book. In the case when the place of residence of the testator is unknown, it is established in court.

The place of opening of the inheritance determines the place of filing an application for acceptance of the inheritance or refusal of it, the place of organization of the protection of hereditary property, the place of issuance of a certificate of the right to inheritance, etc.

Protection of the opened inheritance is necessary for its preservation, because half a year passes between the moment of its opening and the entry into the inheritance of the heirs.

Measures to protect the opened inheritance are taken by notaries or official executive bodies authorized to perform notarial acts (in areas where there is no notary). Protection is carried out at the place of opening of the inheritance. The basis for the performance of protective actions is the application of citizens or the initiative of these officials. The essence of protection is as follows: the notary describes the inherited property (the inventory is transferred for storage to the heirs) and transfers the inherited property into trust management to a person appointed by him on the basis of an agreement, or to an executor appointed by the testator in a will under a storage agreement. The custodian, the trustee are warned about the responsibility for the improper performance of these agreements. Persons carrying out protection shall have the right to receive remuneration for their work from heirs. These persons are also entitled to reimbursement of expenses incurred with the protection of hereditary property, minus the benefits received by them.

43. ACQUISITION OF INHERITANCE

Acquisition of an inheritance includes:

1) filing by heirs of an application for acceptance of inheritance;

2) filing by the heirs of an application for the issuance of a certificate to them for the right to inheritance;

3) receipt by the heir of a certificate of inheritance.

Applying for an inheritance takes place in the notary's office at the place of permanent residence of the testator. The deadline for filing an application is up to six months from the date of opening the inheritance. Submission of an application for acceptance of an inheritance can be replaced by the actual entry into possession, use and disposal of property (maintenance of property in proper condition, payment of taxes, utilities, etc.). Such an heir shall not have the right to alienate the inherited property before receiving a certificate of inheritance. If the heir dies before accepting the inheritance, the inheritance share due to him shall pass to his heir.

The heir has the right renounce the inheritance; the invalidity of such a refusal can be recognized only in a judicial proceeding, provided that it was made under the influence of deceit, violence, threats. Rejection is irrevocable.

The act of accepting the inheritance is a unilateral transaction, it is universal (applies to all property, wherever it is located), unconditional (acceptance of an inheritance under the condition is not allowed), irrevocable (a person who has submitted an application to a notary for acceptance of an inheritance cannot take it back) character, he retroactive effect is given (the inheritance is considered accepted from the moment the inheritance is opened, and not from the moment it is accepted).

There is a six-month period for accepting the inheritance (if it is missed, the right to accept the inheritance is lost). The missed period can be restored by the court.

Ways to accept an inheritance:

1) by submitting to a notary or an authorized official an application for acceptance of the inheritance or an application for issuing a certificate of the right to inheritance;

2) by actual acceptance of the inheritance. When an inheritance is accepted by several heirs, the inheritance is divided. It is carried out by agreement of the heirs, and in the absence of such an agreement - by the court.

A certificate of the right to inheritance is issued at the place of opening of the inheritance, either one for all heirs, or for each heir separately (in accordance with their desire).

A certificate of inheritance is issued by a notary after six months from the date of opening of the inheritance, or earlier, if the notary is sure that there are no other heirs except for those who have expressed a desire to receive the inheritance. Obtaining a certificate is a right, not an obligation, of an heir. However, without it, it is almost impossible to be the owner of the property.

When issuing a certificate of inheritance, a state duty and a tax on the received property are collected. The amount of the state duty depends on the order of the heirs of the first stage, whether the inherited property is located abroad or in the Russian Federation. The tax rate depends on the value of the inherited property and on the successor of which order the recipient of the certificate is.

44. FEATURES OF INHERITANCE OF CERTAIN TYPES OF PROPERTY

Inheritance of certain types of property has some peculiarities.

RџSЂRё inheritance of limited negotiable itemsreceived by the testator with a special permit (for example, weapons), the heir does not require special permission at the time of acceptance of the inheritance, but such permission must be obtained later. If the heir is refused to issue such permission, the ownership of the thing is terminated.

In the event of the death of a participant in a general partnership or a general partnership on faith, a participant in a limited partnership or additional responsibility, a member of a production cooperative, his share (share) in the share (authorized) capital of the corresponding organization is included in the hereditary property. The heir to whom this share is transferred becomes a participant in these organizations if they agree (otherwise they must pay compensation for the testator's share). The heirs of the investor's share in the limited partnership and shares in the joint-stock company become participants in these organizations. The heir to a share of a member of a consumer cooperative has the right to be accepted as a member of this cooperative.

Individual entrepreneurs and commercial organizations have a preferential right over other heirs to receive the enterprise as an inheritance in the event that it is part of the inheritance property.

Land plot, which belonged to the testator on right of lifetime inheritable possession or ownership right, is inherited without obtaining special permission by the heir.

If it is impossible to divide a land plot between several heirs due to its limited size, the land plot passes to the heir who has the pre-emptive right to receive it, and in the absence of such, the land plot passes to several heirs on the terms of common shared ownership.

Cash deposits, contributed by a citizen to a credit institution (bank), can be bequeathed either by registering a testamentary disposition directly at this institution, or in a will executed in a notary’s office for the entire inheritance.

Right to wages, pensions, special insurance benefits the testator, as well as to receive payments indemnifying him for harm, belongs to his family members living with him, as well as his disabled dependents, regardless of whether they lived together with him or not. Claims for the payment of the said sums must be presented to the obligated persons within four months from the date of the opening of the inheritance.

Property for which there were no heirs - "escheat", becomes the property of the Russian Federation.

In case of inheritance of property by several heirs surviving spouse's share there will always be more than the share of the remaining heirs, since the surviving spouse owns half of the property acquired jointly with the testator.

Copyrights of personswho created works of science, literature and art, pass to their heirs only for 70 years.

45. LEGAL REGULATION OF COMMON AND SHARED PROPERTY

Common property - belonging of the same property to several persons (co-owners) at the same time.

Common property object - an individually defined thing (house), a set of things (hereditary mass) or a property complex (enterprise). The right of common ownership arises on indivisible things, as well as on property that cannot be divided by virtue of the law (many securities are an example). Divisible things may also be common property, if it is provided for by law or by agreement.

Types of common property:

1) equity - common property, in which each co-owner owns a certain share;

2) joint - common property, in which the shares of its co-owners are not determined in advance, but can be allocated during its division.

Common property is shared, unless otherwise provided by law. Thus, the law establishes joint ownership of the common property of spouses, as well as members of a peasant (farm) economy. The transfer of property from the regime of joint ownership to the regime of shared ownership is allowed at the discretion of the co-owners, and vice versa - only in cases provided for by law.

Legal nature of the share in common property: the participant owns a share in the right to common property, and not a share of the property (real share) or a share in the value of the property (ideal share).

Features of legal regulation of shared ownership:

▪ shares of co-owners are considered equal, unless otherwise provided by law;

▪ when deciding on the exercise of the rights of owners, each co-owner has one vote;

▪ the rights of co-owners must be exercised by mutual consent of all co-owners;

▪ disagreements between co-owners regarding the exercise of their rights as an owner are resolved by the court;

▪ each co-owner disposes of his share of the common property at his own discretion, but in case of alienation, he must offer his share first to his co-owner (this is called the right of first refusal) and only after his refusal can he sell his share to another person;

▪ the purchase offer to your co-owner must be made in writing, the deadline for responding to the purchase offer is defined: 10 days (for movable property) and 30 days (for real estate);

▪ in case of violation of the right of first refusal, any co-owner of shared ownership within three months has the right to demand in an official manner the transfer of the rights of the buyer to himself;

▪ assignment of the pre-emptive right to purchase a share is not allowed;

▪ a co-owner of shared ownership has the right to demand the allocation of his share from the common shared property in kind, and if this is not possible, monetary compensation for his share;

▪ fruits, products and income from the use of property that is in shared ownership are included in the common property and are distributed among the owners in proportion to their shares;

▪ each co-owner is obliged to bear expenses in proportion to his share of the property.

46. LEGAL REGULATION OF JOINT PROPERTY

Joint ownership can be only in cases provided for by law. It can be transferred by agreement to shared ownership.

Views: property of the spouses; property of members of a peasant (farm) economy; as the property of family members to the apartment privatized by them.

The co-owners share the property.

Dealings each co-owner can make disposal of joint property, the consent of the other co-owners is assumed (presumed). However, the conclusion of a transaction in relation to joint ownership by one of the co-owners without obtaining the consent of the others is the basis for recognizing such a transaction as invalid.

Share in joint ownership are determined only when it is divided, and as a rule, they must be equal.

1. Joint property of spouses - property acquired by spouses during their life together (before marriage - separate property of each of them). Collection of the debts of one spouse can be applied only to the property of this spouse, and to the common property - if this spouse made debts in the interests of the family.

2. Joint property of members of the peasant economy - property intended for entrepreneurial activities in order to make a profit (land, plantings, buildings, livestock, vehicles, etc.). Members of a peasant farm are able-bodied members of the family and other citizens who jointly manage this farm (persons who have not reached the working age of majority and persons of retirement age cannot be members of a peasant farm).

Features:

a) fruits, products and incomes received as a result of economic activity are the common property of its members;

b) common property is used by members of the peasant economy by mutual agreement;

at) transactions on the disposal of the property of the farm are made by the head of the farm or another authorized person;

d) the allocation of property to one of the participants in the peasant economy is possible only by paying his share.

3. Joint ownership of family members who privatized the apartment:

a) arises at the request of citizens and with the consent of all adult family members living in the apartment, as well as minors aged 14 to 18;

b) subjects - adults and minors, including those living separately from the tenant, but who have not lost the right to use the apartment;

at) transactions with an apartment in the case of minors living in it are allowed only with the permission of the guardianship and guardianship authorities;

d) funds from transactions with privatized apartments, in which only minors lived, must be credited to the account of these persons in a savings bank;

d) when dividing an apartment and allocating a share, the shares of the co-owners must be equal, unless otherwise provided by the agreement;

f) the allocation of a share in kind to one of the co-owners of the apartment is possible only in cases where it is possible to transfer living space, utility rooms to him in an isolated form, and also if it is possible to equip a separate entrance.

47. PROPERTY RIGHTS OF PERSONS WHO ARE NOT OWNERS. RIGHTS OF PERSONS WHO ARE NOT OWNERS OF LAND PLOTS

Property rights of persons who are not owners, have the same characteristics as ownership. At the same time, they have their own characteristics: these rights are assigned by law the right to follow upon the transfer of ownership of property to another person; types of property rights can only be established by law.

Rights of non-owners:

▪ the right to lifelong inheritable ownership of a land plot;

▪ the right to permanent (indefinite) use of a land plot;

▪ the right to manage property;

▪ the right to operational property management;

▪ easement rights (easements).

Since this list is not closed, other rights may be included in it. There is only one requirement for them: they must be specified in the law. In the theory of civil law, this list was supplemented, it included the property rights of persons who are not owners: the right of pledge; the right to use housing by members of the owner's family living in the residential premises belonging to him; the right of the actual owner, who, not being the owner of the property, in good faith, openly and continuously owns this property; the right of an institution to independently dispose of income and property received as a result of economic activities permitted to it; the right to lifelong residence in a dwelling owned by another person in accordance with a testamentary refusal.

Property rights of persons who are not owners of land plots, arise from their owners on the grounds provided for by land legislation.

Types of real rights to land plots: the right to permanent (unlimited) use of the land plot; the right of lifetime inheritable possession of a land plot.

Citizen who owns land right of lifetime inheritable possession, has the right, independently, without asking the owner’s consent, to transfer a land plot or part of it for free use, for rent, to erect buildings on the plot, acquiring ownership rights to them, but he does not have the right to alienate the land plot, i.e. sell, transfer to pledge. Naturally, only a citizen can have the right of lifelong inheritable ownership of a land plot.

The right to permanent (unlimited) use of a land plot can be provided to both citizens and legal entities. Eligible subjects have the right to independently use the land plot, but they cannot make transactions with it - lease or free fixed-term use - on their own, without the consent of the owner. However, if the owner of this right erects a building on a land plot and acquires the right of ownership to it, he will transfer the right to a part of the land plot on which this building is located.

48. RIGHT OF ECONOMIC MANAGEMENT AND OPERATIONAL MANAGEMENT OF PROPERTY

The right of economic management and the right of operational management - these are real rights of legal entities to use someone else's property. The relations that arise in this case involve: the user of someone else's property (legal entity) and the owner, who assigned his property to the user. The purpose of these property rights is to formalize the property status of legal entities that are not owners in order to create an opportunity for their independent participation in civil circulation.

Subjects (carriers) of these rights are only legal entities existing in the form of an enterprise and an institution. Subjects of law economic management - state and municipal enterprises, and the subjects of the right of operational management - state-owned enterprises and institutions.

Differences between the right of economic management and the right of operational management: in the content and scope of the powers that their holders receive from the owner on the property assigned to them.

Right of economic management - this is the right to own, use and dispose of the owner's property within the limits established by law or other legal acts. A unitary enterprise, on the right of economic management, cannot independently dispose of its real estate, but at the same time it can independently dispose of movable property. With this right, the owner of the property (the founder of the enterprise), who has assigned his property to the enterprise, retains the right to create, reorganize and liquidate the enterprise, the right to exercise control over the property, the right to receive part of the profit.

The right of operational management - this is the right to own, use and dispose of the property of the owner only within the limits established by law, in accordance with the goals of their activities, the tasks of the owner and the purpose of the property.

The owner (founder of the enterprise) has the right to withdraw from the subject of the right of operational management his property assigned to him, and dispose of it at his own discretion, if the property: is used for other purposes; turned out to be redundant.

Features of the authority of the order The property of the subjects of this right is different. A state-owned enterprise does not have the right to dispose of any property assigned to it (movable and immovable) without the consent of the owner. The owner of a state-owned enterprise independently establishes the procedure for disposing of the income of a state-owned enterprise. The institution does not have the right to dispose of the property assigned to it. For him, at his request, this is done by the owner of the institution.

The right of economic management and the right of operational management of the property of the owner arise at the enterprise and institution only from the moment of actual transfer of property. This moment is determined by the date of approval of the enterprise’s balance sheet or the date of receipt of property according to the estimate. The right of economic management and operational management is retained by their owners even in the event of a change of owner, i.e. the right of succession applies.

49. SERVICE RIGHTS

Servitude - limited real right to use other people's property.

It is generally accepted that the subject of easement can be land, buildings, structures, water bodies. However, some authors believe that servitude law can also apply to the individual. An example of a personal easement is the right to live in someone else's house for life, which arose by virtue of a testamentary refusal.

The servitude right burdens the property of the owner, but does not deprive him of the three powers of the owner.

Subjects of servitude legal relations may be citizens and legal entities.

Types of easements:

▪ public, established by law in the interests of all persons (for example, everyone can use water bodies in accordance with Article 43 of the Water Code of the Russian Federation);

▪ private, established on the basis of an agreement, but in accordance with the law.

The essence of easement law can be easily understood by the example of land easement. Thus, the owner of a land plot may demand from the owner of a neighboring land plot the right of limited use for passage, passage, etc. A land plot represented on the right of an easement is called an "employee", and a land plot whose owner requires the establishment of an easement is called " dominating."

An easement is established by agreement of the parties, and in case of failure to reach an agreement - by a court decision. An easement is subject to state registration, it may be paid.

Attached to the easement right of succession. This means that it remains the same even when the owner of the “employee” of the land plot changes. The owner of a “servant” land plot may demand termination of the easement if it interferes with the use of the land plot for its intended purpose. If agreement between the participants in the easement is not reached, the dispute is resolved by the court.

50. CIVIL LEGAL WAYS TO PROTECT PROPERTY RIGHTS. VINDICATOR AND NEGATIVE CLAIMS

Civil law form of protection of property rights - a set of means provided for this by civil legislation.

Civil legal protection system:

1) property-law methods of protection (vindication and negatory claims);

2) legal obligations protection methods (protection methods based on the protection of the rights of participants in a civil transaction, as well as methods used to compensate for damage caused to the owner, return unjustifiably acquired or saved property by filing claims);

3) ways to protect the rights of the owner, arising from the general norms of civil law (lawsuits for the recognition of property rights); lawsuits against state authorities and administration; claims for invalidation of an act that violates the right of ownership; claims for wrongful termination of ownership, etc.

Vindication claim - a claim for the recovery of property by its owner from someone else's illegal possession; non-contractual (the parties to the dispute are not bound by an obligation regarding the disputed thing) demand of the non-possessing owner to the actual owner of the property for the return of the latter in kind.

Conditions for filing a vindication claim.

The subject of the claim is an individually defined thing, ancestral property must be individualized; the item claimed must not have been altered; the thing must be in the possession of another person. The plaintiff is not only the owner of the thing, but also its title owner; the plaintiff must prove his ownership of the claimed thing.

Defendant - the illegal owner who has the thing.

Conditions for satisfaction of a vindication claim: a thing can always be taken from someone else’s illegal, dishonest possession; an item may be confiscated in the following cases:

a) if the thing was acquired by a bona fide owner for compensation and at the same time left the owner’s possession against his will;

b) if the bona fide owner acquired the thing free of charge from a person who did not have the right to alienate it. Money and bearer securities cannot be withdrawn from a bona fide purchaser.

The owner of a thing in bad faith is obliged to return (compensate) to the owner all the income received by him during the time of using it, the owner in good faith - to compensate only those income that he received from the moment he learned about the illegality of his possession. The illegal possessor of a thing, who has incurred expenses for its improvement, has the right to demand compensation from the owner, irrespective of whether he or she is the possessor of the thing in good faith or in bad faith. A conscientious owner of a thing who has improved it has the right to retain such an improvement.

negatory lawsuit - this is a claim by the owner (title owner) of a thing with a demand to remove obstacles in the exercise of ownership rights, which, although not depriving the owner of possession of the thing, however, prevent him from exercising the powers of the owner of the thing.

51. CONCEPT OF OBLIGATION

There are two definitions of the concept of "obligation": legal and doctrinal. Consider legal definition concept of obligation.

Commitment - a civil legal relationship, by virtue of which one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor) or refrain from a certain action, and the creditor has the right to demand from the debtor the performance of his obligation.

Relations between the debtor and the creditor are regulated by the law of obligations. This is the most common and diverse type of civil legal relations.

Features of legal obligations:

▪ legal obligations formalize the process of commodity exchange, therefore they are relations of economic turnover. For example, under a purchase and sale agreement, the item of purchase and sale moves from the seller to the buyer, under a construction contract, the result of the contractor’s activities passes to the customer, etc.;

▪ obligation legal relations relate to property legal relations;

▪ obligatory legal relations can be aimed at organizing the exchange of goods, i.e., at creating conditions for the transfer of property benefits in the future (for example, a preliminary gift agreement);

▪ obligatory legal relations are a relative legal relationship: there are specific participants in it who are obliged to certain behavior pursuing a property interest (as opposed to an absolute relationship in which an authorized person opposes an indefinite number of persons, for example, in legal relations of property, operational management, copyright);

▪ obligatory legal relations are closely related to the legal relations of property: the exercise by the owner of the power of disposal (for example, the sale of a thing) leads to the emergence of an obligatory legal relationship (for example, when selling a thing, the seller has an obligation to transfer it to the buyer, and the latter has an obligation to pay money to the seller), and the sale Some obligations are aimed at the emergence of property rights (for example, in contracts of sale, donation, supply). The second definition, being doctrinal, complements the legal definition, since it reflects the meaning of the obligation in civil trade.

Commitment - this is a relative legal relationship that mediates the movement of material goods, in which one person (debtor), at the request of another person (creditor), is obliged to take an action to provide him with material goods.

52. STRUCTURE OF COMMITMENT

Commitment Structure - a set of elements included in it.

Commitment elements:

▪ subjects of obligatory legal relations;

▪ objects of obligatory legal relations;

▪ content of obligatory legal relations.

In past years, the structure of obligations also included a fourth element - the grounds for the emergence of obligations. Now it is considered separately.

Subjects of legal obligations - debtor and creditor.

Debtor - obligated party (he must perform a certain action or refrain from a certain action). His duty is called duty.

Creditor - a party authorized to require the debtor to perform a certain action or to refrain from a certain action. The creditor's right is called right of claim.

In cases where there are several entities on the side of the obligation, such an obligation is called multi-person obligation.

During the period of validity of the obligation, it is possible to replace the persons acting as parties. Changing a lender is called assignment of claim (cession), and replacing the debtor - transfer of debt. Such a replacement is an additional agreement, drawn up in the same way as the main one.

Objects of legal obligations - certain actions of the debtor (to transfer money, property, things, perform works, services) or refrain from certain actions (the object should not be confused with the subject of obligations, the latter is understood as something in relation to which actions are performed - money, things, etc.). d.).

The content of the legal relationship - the rights and obligations of the creditor and the debtor to fulfill the obligation.

The rights and obligations of the parties to an obligation are called subjective law of obligations. The exercise of the subjective right of obligation by the creditor is possible only if the debtor performs actions that constitute his obligation.

The basis for the emergence of legal obligations are legal facts or their combination (legal compositions). The types of foundations are varied:

▪ dealings unilateral, bilateral and multilateral (treaties);

▪ individual acts of state bodies and local governments, for example, a warrant for the right to move into a residential premises;

▪ harm to a citizen or legal entity - illegal actions (torts) or inaction. Obligations arising from illegal actions are called tort;

▪ unjust enrichment - acquisition of property at the expense of another person;

▪ other actions of citizens and legal entities, for example, preventing harm to the person or property of another person;

▪ events - cause the emergence of an obligation only in conjunction with other legal facts. For example, a will (unilateral transaction) gives rise to legal consequences only from the moment of death of the testator (event).

In case of non-fulfillment of obligations or their improper fulfillment, civil law sanctions are imposed.

53. CLASSIFICATION OF LIABILITIES

Obligations are classified into types, groups, types and subtypes.

Depending on the grounds for obligations, the latter are divided into two types: contractual (which are based on a contract, for example, on delivery, contract) and non-contractual (they are based on tort, unjust enrichment or other legal facts).

Each of the above types of obligations is divided into groups.

Contractual obligations Depending on the nature of the movement of material goods mediated by them, they are divided into obligations: for the transfer of property into ownership; on granting property for use; for the performance of work; for transportation; for the provision of services; on settlements and crediting; for insurance, etc.

Non-contractual obligations are divided into: obligations from unilateral transactions; protective obligations.

Obligations included in the same group have common principles of legal regulation.

Obligations with a plurality of persons are subdivided into equity obligations (in such obligations each of several debtors is liable only for their own debts) and joint and several obligations (in such obligations each of the debtors can be liable both for their own debts and for the debts of other debtors under this obligation).

Equity obligation is any obligation with a plurality of persons, unless otherwise provided by law or the terms of the obligation. At passive plurality each of several debtors is obliged to fulfill the obligation in accordance with his share, and if active multiplicity - each of the creditors has the right to demand from the debtor in his favor a share determined by law or agreement. At the same time, the shares of the debt and the share of the claim are considered equal, unless otherwise provided by law or contract.

Solidary obligations are divided into three types: joint and several obligation (one creditor and several debtors); solidary claim (one debtor and several creditors); mixed solidarity (several debtors and several creditors).

In case of a joint and several obligation, the creditor has the right to demand the performance of the obligation both from all debtors jointly, and from any of them separately, both in full and in part of the debt. A debtor who has performed a joint and several obligation for others has the right to claim recourse against other debtors.

RџSЂRё mixed solidarity obligation the rules of both joint and several obligation and joint and several claim apply.

In obligations with a plurality of persons, main and subsidiary obligations are distinguished. This division is based on the degree of liability of the debtor.

Subsidiary debtors are, as a rule, third parties in an obligation. Example: a minor who has harmed his comrade is the main debtor to compensate him for harm, and his parent is an additional, i.e., subsidiary debtor.

In addition, there are recourse (reverse) obligations. They arise when the debtor of the main obligation fulfills it either instead or through the fault of a third party. A person who has fulfilled such an obligation has the right to compensation for what was performed.

54. CONCEPT AND SIGNIFICANCE OF THE CONTRACT

A contract is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations.

The contract is legal fact, which is a transaction involving two or more parties. The concept of a transaction is broader than the concept of a contract, since a transaction can be one-sided. Contract - the most common in civil transactions deal. All rules regarding transactions, obligations and contracts apply to him simultaneously. Thus, from the rules on transactions, contracts are subject to rules on the forms of transactions, on the conditions of validity and invalidity of transactions, on the consequences of recognizing transactions as invalid. From the rules on obligations, contracts are subject to provisions on the structure of the obligatory legal relationship, rules on security, execution, termination of obligations, rules of liability for the fulfillment of obligations. At the same time, there are rules relating only to contracts: rules for concluding contracts, rules for amending and terminating contracts, provisions on the content and classification of contracts.

Most of the contracts give rise to consequences of a property nature (for example, a contract of sale, donation). But some of them give rise to obligations of a non-property nature (for example, constituent agreements on the creation of partnerships, organizational agreements on transportation, preliminary agreements for the conclusion of contracts in the future on the terms of this agreement).

The term "contract" is used in other senses: for the name of a contractual obligation legal relationship, for the name of a document indicating that the parties have reached an agreement.

The contract is used not only in the sphere of civil circulation, but also in labor relations, economics, politics, international relations, the social sphere, and the sphere of culture.

The meaning of a civil law contract:

▪ an agreement is a unique means of ensuring order and stability in economic turnover (the possibility of concluding an agreement creates confidence among subjects of civil legal relations that their interests can be realized, implemented and protected, and any changes that arise can be taken into account during its execution);

▪ this is a form of respecting the interests of subjects of civil legal relations and the main form of entrepreneurial activity, ensuring the sale of products and the exchange of material goods in entrepreneurial activity;

▪ studying contractual practice allows us to quickly identify trends and promptly respond to emerging needs for certain goods and services in order to successfully satisfy them.

55. CONTENT AND FORM OF THE CONTRACT

Currently, the concept of "content of the contract" has two interpretations: traditional and non-traditional.

The content of the contract in the traditional interpretation - a set of its conditions on which an agreement has been reached between the parties.

The conditions include: subject, object, price of the contract, time and place, liability for non-performance or improper performance of the contract.

The conditions may be determined by the parties, the law or the customs of business.

Types of contract terms:

▪ essential - conditions on which the parties need to reach an agreement (otherwise the contract will be considered invalid);

▪ ordinary, not requiring the consent of the parties;

▪ random - conditions that are not typical for a contract of this type.

Essential conditions:

▪ conditions on the subject of the contract (the subject of the contract is what the contract is aimed at. For example, in a sales contract, the subject of the contract will be the thing being sold);

▪ conditions specified in the law;

▪ conditions on which an agreement must be reached between the parties at the request of one of them.

Each type of contract has its own combination of essential conditions. For example, in a work contract, such conditions include: the subject, the price of the contract and the deadline for delivery of the subject of the contract.

Unconventionally interpreted the concept of "content of the contract" in the textbook "Civil Law", parts one and two, edited by Yu.K. Tolstoy and A.P. Sergeev. This concept denotes the totality of mutual rights and obligations of the parties in the contract. This brings the terminology used in relation to the contract into line with the terminology used in relation to obligations.

Contract form:

▪ an agreement can be concluded in any form established for transactions, unless the law has established a specific form for this type of agreement;

▪ if the parties agreed to conclude an agreement in a certain form, compliance with such form is mandatory;

▪ a written agreement can be concluded by drawing up one document, as well as by exchanging documents;

▪ the written form of the contract is considered to be complied with if, in response to a written offer to conclude a contract by the offeror, the acceptor performed the actions provided for by the contract;

▪ the transfer of property stipulated by the agreement must be executed in compliance with the same form as the agreement;

▪ contracts can be recorded on standard forms in order to reduce the time for their execution;

▪ some contracts concluded in written or notarial form are subject to mandatory state registration (for example, real estate sales transactions).

56. CONCEPT, METHODS AND SIGNIFICANCE OF TERMINATION OF LIABILITIES

Termination of obligations - repayment of the rights and obligations that make up the content of the obligations of its participants.

Method (grounds) for terminating an obligation - legal facts, with the occurrence of which the law or the contract connects the termination of the obligation. Some of these legal facts are transactions.

Ways to terminate obligations: execution of obligations; set-off of a counterclaim; by agreement of the parties; on the initiative of one party; in connection with the impossibility of execution; with the coincidence in one person of the debtor and the creditor; with the death of a citizen or the liquidation of a legal entity; with the publication of an act of a state or municipal authority.

Fulfillment of an obligation - commission by its parties of certain actions constituting the content of their rights and obligations, or refraining from such actions; the most desirable way to terminate obligations.

Principles for fulfilling obligations:

1) obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, business customs in strict accordance with the subject of the obligation and the manner, place and timing determined by law or the obligation itself;

2) payment of penalties in case of improper performance of an obligation does not relieve the debtor from the performance of the obligation in kind;

3) each of the parties to the obligation assists in its execution;

4) the efficiency of the obligated person taking actions to fulfill the obligation.

Subject of fulfillment of the obligation - actions stipulated by the obligation (transfer of a thing (money), performance of work, services).

Way of fulfilling the obligation - the procedure for the debtor to perform actions to fulfill the obligation: presenting the subject of the obligation in full or in parts directly to the creditor or through another person, by sending the subject by mail or by handing it in person.

Place of performance is determined either in the contract or follows from the law: execution for the transfer of real estate is carried out at its location, for the carriage of goods - at the place of its delivery to the creditor, for a monetary obligation - at the place of residence of the plaintiff.

Deadline for performance of the obligation is determined either by a calendar date, or by the expiration of a period of time, or by the occurrence of a certain event; "within a reasonable time" - if the obligation is concluded with an indefinite period of its execution.

The subjects of the fulfillment of the obligation are the debtor or a third party authorized by him.

Set-off of a counterclaim - repayment in full or in part of mutual claims, provided that the claims are homogeneous, and the due date has either already come by the time of offset, or has been determined on demand.

Not subject to offset: obligations for which the limitation period has expired; claims for compensation for harm caused to the life and health of citizens, for the recovery of alimony, for the obligation of life maintenance, etc. The set-off of a counterclaim is a one-sided transaction: for it, a statement from one party is sufficient.

57. FEATURES OF INDIVIDUAL WAYS OF TERMINATION OF OBLIGATIONS

Termination of obligations by agreement of the parties carried out with the help of compensation, innovation, debt forgiveness.

Termination of obligations on the initiative of one party possible when such waiver is permitted by law or contract. It can occur by a court decision in case of a material violation of the terms of the contract by the other party (causing damage, as a result of which the other party is deprived of what it expected at the conclusion of the contract) and without court intervention. As a general rule, unilateral refusal to fulfill obligations is not allowed.

Termination of obligations by the impossibility of performance - the impossibility of performance caused by circumstances for which neither party is responsible. It can be:

▪ economic and technical factors that determine the impossibility of manufacturing and delivering the subject of the obligation;

▪ legal factors that determine the debtor’s inability to act legally, expediently, morally;

▪ force majeure events (extraordinary and unavoidable).

A variation of this method of termination of obligations is termination of obligations by issuing an act by a state or municipal authority. If an act does not comply with the law, the court may declare it invalid or protect it in another way.

The burden of proving the impossibility of fulfilling the obligation lies with the debtor.

In order to release the entrepreneur from liability due to the impossibility of fulfilling obligations, the latter must prove that this happened due to force majeure. The remaining factors are not recognized as grounds for releasing the entrepreneur from liability for failure to fulfill the obligation.

Termination of obligations by coincidence in the same person of the debtor and creditor perhaps because in such cases there is a succession, as a result of which the obligations of these persons are annulled.

Termination of an obligation by the death of a citizen possible in exceptional cases, when obligations are associated with the personality of either the debtor or the creditor. As a rule, obligations are not terminated by the death of a citizen, but are inherited by the legal successors of the deceased person.

Termination of obligations by liquidation of a legal entity occurs, as a rule, because the liquidation of a legal entity does not result in succession. An exception is obligations under claims for compensation for harm caused to the life and health of citizens who have received injuries or occupational diseases while working in a liquidated legal entity. According to such obligations, the liquidated legal entity is obliged to transfer money to social insurance bodies for their payments to affected citizens.

58. ENFORCEMENT. PENALTY

Ensuring fulfillment of obligations - these are measures designed to protect the interests of the creditor from improper performance of the obligation by the debtor and induce the debtor to fulfill the obligation by joining by force of law or contract to the main (main) obligation of an additional one.

Ways to ensure the fulfillment of obligations historically arose as a natural need for increased guarantees of the rights and interests of participants in legal obligations.

The main ways to ensure are: penalty; pledge; retention; guarantee; bank guarantee; deposit.

Ways to ensure the fulfillment of obligations are always property-based.

Ensuring the fulfillment of an obligation is an additional obligation in relation to the main one and therefore depends on it: in the event of the termination of the main obligation, the additional obligation also ceases.

The Importance of Enforcement is that it stimulates the debtor to fulfill his obligation to the creditor.

Penalty - the amount of money that the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation by him in addition to the principal amount of the debt.

Types of penalty differ for the following reasons. According to the subject of the establishment of a penalty, there are legal (provided by law) and contractual (established by the parties to the contract) penalties; according to the method of calculating the amount of the penalty, the latter are divided into a penalty (determined as a percentage for each overdue day of fulfillment of the obligation) and a fine (a certain amount of money); Depending on the ratio of the creditor's right to recover a penalty and his right to compensation for damages, four types of penalty are distinguished:

a) credit (losses not covered by the penalty are recovered);

b) exceptional (only a penalty is collected, but not losses);

at) penalty (damages may be recovered in excess of the penalty);

d) alternative (the creditor has the right to recover either a penalty or damages).

A penalty is the most common way to ensure the fulfillment of an obligation in practice and performs two functions - measures to ensure the fulfillment of an obligation and sanctions for its improper fulfillment, that is, measures of property liability.

Rules for applying penalties. A legal penalty applies regardless of whether it was provided for by the parties in the contract. Its size can only be increased by agreement of the parties; a contractual penalty applies only if it is provided for by agreement of the parties, that is, an agreement on a penalty must always be made in writing; collection of a penalty from the debtor is possible only if there are grounds for his liability, since the penalty is not only a measure of securing an obligation, but also a measure of responsibility for its fulfillment; the debtor cannot be exempted from paying the penalty, but its amount may be reduced by the court if the penalty is disproportionate to the consequences of the violation of the obligation.

59. Pledge, retention, surety

Bail - a method of ensuring the fulfillment of an obligation, allowing the pledgee to receive satisfaction at the expense of the pledged property preferentially over other creditors of this debtor. Pledge is regulated by the Civil Code of the Russian Federation, the Laws: "On Pledge" and "On Mortgage (Pledge of Real Estate)".

Subject of pledge - things and claims. The parties to the pledge are the pledgor and the pledgee. The form of the pledge agreement must be in writing, and in relation to a mortgage - notarized and registered.

Types of collateral distinguished on the following grounds. According to the location of the pledged property: a firm pledge - without the transfer of property, a type of a firm pledge is a pledge of goods in circulation and a pledge - with the transfer of the pledged property. A type of mortgage is a pledge in a pawnshop. On the subject of pledge (pledge of property and pledge of rights); according to the degree of connection of the pledged property with the land - a pledge of movable property and a pledge of immovable property (mortgage).

Grounds for Foreclosure on Mortgaged Property - non-fulfillment or improper fulfillment by the debtor of the main obligation.

Foreclosure procedure - the claim of the pledgee (creditor) is satisfied from the sale price of the pledged immovable property either by a court decision or on the basis of a notarized agreement, and movable property - in the manner established by the pledge agreement, unless a different procedure is established by law. Satisfaction of the pledgee's claim at the expense of the pledged movable property without recourse to the court is allowed, unless otherwise provided by the agreement between the pledgor and the pledgee. The property received as a pledge cannot be converted by the pledgee directly to his own benefit in case of non-performance by the pledger of the main obligation, but must be sold at public auction.

Retention - the opportunity provided by law for the creditor not to transfer to the debtor a thing belonging to him, in case of default by him of the obligation until the moment of its execution.

Holding Features. Retention is a new way for Russian civil law to secure an obligation. Retention is applied in the case where the main obligation is related to the thing being retained or to compensation for losses associated with it (for example, in contracts of storage, transportation, contract); for the creditor to apply retention, it is not necessary to provide for a retention clause in the agreement; retention is applied in case of violation of the rights of only the creditor; retention is applied by the creditor without going to court; The creditor collects the retained item by selling it at public auction.

Surety - an agreement by virtue of which the guarantor undertakes to the creditor of another person (debtor) to be responsible for the fulfillment by the latter of his obligations. The form of the contract is written.

Guarantee features: the surety may secure an obligation that will arise in the future; the guarantor is jointly and severally liable with the debtor, i.e. the creditor has the right to decide for himself which of them to make a claim; the amount of liability of the guarantor may not coincide with the amount of debt under the main obligation; the guarantor who performed the obligation instead of the debtor has the right to a recourse (subsequent) claim against the debtor to recover from him the funds paid to the creditor.

60. BANK GUARANTEE. DEPOSIT

Bank guarantee - such a guarantee, in which a credit institution (guarantor) acts as a guarantor. The creditor in a bank guarantee is called the beneficiary, and the debtor is called the principal.

The basis for the emergence of banking guarantees are two legal facts: an agreement between the principal and the guarantor on the provision of a bank guarantee, as well as the issuance of guarantees for a certain period in writing (this is a one-sided transaction).

There are two types of bank guarantees: conditional bank guarantees, giving the beneficiary the right to satisfy the claim only if the latter provides a court decision on the principal’s failure to fulfill his obligation, and unconditional bank guarantees, in the presence of which the guarantor is obliged to fulfill the requirements of the beneficiary without providing the latter with evidence of improper fulfillment by the principal of his obligations.

Features of the bank guarantee:

▪ the bank guarantee does not depend on the main obligation;

▪ the beneficiary's right of claim is not transferred;

▪ the limits of the guarantor's liability to the beneficiary are determined by the amount of money specified in the bank guarantee;

▪ in case of failure by the guarantor to fulfill the obligation to pay the principal's debt, the guarantor may be held liable for unlawful behavior and may be liable with a monetary amount greater than that indicated in the bank guarantee;

▪ the guarantor who has satisfied the beneficiary's claim has the right of recourse against the principal.

Deposit - an amount of money issued by one of the parties to the other party as proof of the conclusion of the contract and ensuring its execution.

The subject of the deposit it can only be money. The form of the deposit agreement must be in writing.

Deposit functions: security, payment and certification.

Deposit features:

▪ the party that gave the deposit, if it fails to fulfill the contract, loses it, and the party that received the deposit and failed to fulfill the obligation must pay double the amount if it is responsible for the failure to fulfill the obligation;

▪ the deposit is returned in the amount of money received in two cases: upon termination of the obligation before the start of its execution by agreement of the parties, as well as upon impossibility of fulfilling the obligation;

▪ the amount of the deposit is issued against future payments under the main contract, therefore, upon its execution, the deposit is withheld.

The difference between a deposit and an advance is that the advance is not characterized by a security function: the party that issued the advance has the right to demand its return in all cases of non-performance or improper performance, with the exception of cases provided for by law or the contract.

Therefore, when concluding an agreement, which assumes a preliminary payment on account of the main payment under the agreement, it is necessary to immediately indicate what, in advance or as a deposit, this payment is. And if the contract does not indicate that the amount of the prepayment is a deposit, then such an amount will automatically be considered an advance.

61. CONCEPT OF INTELLECTUAL PROPERTY

Concept intellectual property is determined by both international acts and the Civil Code of the Russian Federation.

According to the Convention establishing WIPO, "intellectual property" includes rights relating to:

▪ literary, artistic and scientific works;

▪ performing activities of artists, sound recordings, radio and television broadcasts;

▪ inventions in all areas of human activity;

▪ scientific discoveries;

▪ industrial designs;

▪ trademarks, service marks, trade names and commercial designations;

▪ protection against unfair competition,

▪ as well as all other rights related to intellectual activity in the industrial, scientific, literary and artistic fields.

New edition of Art. 128 of the Civil Code of the Russian Federation defines intellectual property as protected results of intellectual activity and equivalent means of individualization.

Results of intellectual activity and equivalent means of individualization of legal entities, goods, works, services and enterprises that are provided with legal protection (intellectual property, objects of protection) are (Article 1225 of the Civil Code of the Russian Federation):

1) works of science, literature and art;

2) programs for electronic computers (computer programs);

3) databases;

4) performance;

5) phonograms;

6) communication on the air or by cable of radio or television programs (broadcasting of on-air or cable broadcasting organizations);

7) inventions;

8) utility models;

9) industrial designs;

10) selection achievements;

11) topology of integrated circuits;

12) production secrets (know-how);

13) trade names;

14) trademarks and service marks;

15) names of places of origin of goods;

16) commercial designations.

Components of the concept of "intellectual property" historically considered literary (artistic) and industrial property.

Berne Convention on the Protection of Literary and Artistic Works of 1886 refers to the objects of literary (artistic) property works of science, literature and art.

Paris Convention on the Protection of Industrial Property of 1883 considers inventions, utility models, industrial designs, trademarks, service marks, trade names and appellations of origin to be objects of industrial property protection. The development of technology, technology, economics leads to the emergence of new objects of intellectual property.

Since January 1, 2008, a new concept has been introduced in the legislation of Russia - "intellectual rights", which refers to the rights to the results of intellectual activity and means of individualization equivalent to them. Intellectual rights include exclusive rights (property rights), personal non-property and other rights.

62. CONCEPT OF EXCLUSIVE RIGHT

Exclusive right to the result of intellectual activity or to a means of individualization means the right to use such a result or such means in any way that does not contradict the law. An exclusive right also enables the right holder to: allow or prohibit other persons from using the result of intellectual activity or means of individualization; exercise your right. The exclusive right is absolute and must be respected by any subjects.

The original subject of the exclusive right is author - a citizen whose creative work created the result of intellectual activity. Rights to the result of intellectual activity created by the joint creative work of two or more citizens (co-authorship), owned jointly by the co-authors.

The author owns the right of authorship and other non-property rights provided for by the Civil Code of the Russian Federation. The non-property rights of the author are inalienable and non-transferable. Copyright and the right to a name are protected in perpetuity.

Signs of exclusive right:

1) action within a certain period;

2) action in a limited area;

3) the need for state registration in cases established by the Civil Code of the Russian Federation;

4) the possibility of restriction by law (such restrictions should not cause unjustified damage to the normal use of the intellectual property object and unreasonably infringe on the legitimate interests of right holders).

63. MAIN NOVELS OF PART IV of the Civil Code of the Russian Federation

1. Identification of general provisions on rights to the results of intellectual activity and means of individualization, including provisions on objects, subjects, exclusive rights and their disposal, organizations carrying out collective management of rights, protection of intellectual rights.

2. Changing the content of the concept of “intellectual property” (Article 1225 of the Civil Code of the Russian Federation) and introducing the concept of “intellectual rights” (Article 1226 of the Civil Code of the Russian Federation).

3. More detailed general and special regulation of agreements on the disposal of exclusive rights (on the alienation of exclusive rights and licensing agreements).

4. Introduction of legal protection of related rights of the database manufacturer and publisher of works of science, literature or art.

5. The emergence of legal regulation regarding new objects of legal protection: trade secrets (know-how) and commercial designations.

6. Introduction of state accreditation of rights management organizations on a collective basis.

7. Expanding opportunities for the use and disposal of intellectual rights.

8. Introduction of legal regulation of the use of the results of intellectual activity as part of a unified technology.

64. DISPOSAL OF THE EXCLUSIVE RIGHT

Disposition of the exclusive right it is possible in two ways: by alienating the right (concluding an agreement on the alienation of an exclusive right) or by granting the right to use an intellectual property object within the limits established by the agreement (concluding a license agreement).

On agreement on the alienation of the exclusive right one party (right holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity or to a means of individualization in full the other party (the acquirer).

Under a license agreement one party - the owner of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) grants or undertakes to grant to the other party (licensee) the right to use such a result or such means within the limits stipulated by the contract.

As a general rule, these agreements are of a reimbursable, consensual and reciprocal nature.

If there is no condition on the price (the amount of remuneration or the procedure for determining it) in the compensated agreement on the disposal of the exclusive right, the agreement is considered not concluded.

Agreements on the disposal of exclusive rights are concluded, as a rule, in writing, and in the cases specified in the Civil Code of the Russian Federation, they are subject to state registration.

Types of license agreements:

1) a simple (non-exclusive) license - the licensor retains the right to issue licenses to other persons;

2) exclusive license - the licensor is not entitled to issue licenses to other persons in relation to this method of using the intellectual property object.

Unless otherwise provided by the license agreement, the license is assumed to be simple (non-exclusive).

Sublicense agreement - an agreement under which the licensee, with the written consent of the licensor, can grant the right to use the result of intellectual activity or means of individualization to another person.

Compulsory license - granting the right to use the result of intellectual activity on the basis of a court decision in cases provided for by the Civil Code of the Russian Federation.

Special legal regulation is provided for by the Civil Code of the Russian Federation for the use of the results of intellectual activity as part of complex object (movie, theatrical performance, unified technology, etc.). The organizer of the creation of a complex object acquires the right to indicate its name (name) and the right to use the corresponding results of intellectual activity under agreements on the alienation of rights (if an intellectual product is specially created for a complex object) or license agreements. At the same time, license agreements are concluded for the entire period and in respect of the entire territory of validity of the relevant exclusive right, unless otherwise provided by the agreement.

65. CONCEPT OF COPYRIGHT

Авторское право - this is a set of legal norms regulating relations arising in connection with the creation, use and protection of works of science, literature and art.

1) freedom of creativity;

2) a combination of the personal interests of the author with the interests of society;

3) inalienability of the personal non-property rights of the author;

4) freedom of the author's contract. Copyright sources:

▪ Constitution of the Russian Federation;

▪ Civil Code of the Russian Federation;

▪ Law of the Russian Federation “On Copyright and Related Rights” (lost force on January 1, 2008);

▪ Law of the Russian Federation “On the legal protection of programs for electronic computers and databases” (lost force on January 1, 2008);

▪ international treaties (see clause 3).

Copyright Objects - works of science, literature and art that have two necessary features:

a) being the result of creative activity;

b) existing in any objective form (including in written, oral form (in the form of public utterance, public performance and other similar form), in the form of an image, in the form of sound or video recording, in volume-spatial form).

"Work - this is a set of ideas, thoughts and images that, as a result of the author's creative activity, have received their expression in a concrete form accessible to perception by human feelings, allowing the possibility of reproduction. .1956).

Creativity in the science of copyright is understood as intellectual activity, as a result of which a qualitatively new, previously non-existent result is created, provided by the author's individuality.

Within the framework of a work, protected (images and language of the work) and unprotected (theme, material of the work, plot core, ideological content) elements are distinguished.

Copyright does not apply to ideas, concepts, principles, methods, processes, systems, methods for solving technical, organizational or other problems, discoveries, facts, programming languages (Clause 5, Article 1259 of the Civil Code of the Russian Federation).

Copyright in a work of science, literature and art arises by virtue of the fact of its creation. The creation and exercise of copyright does not require the registration of a work or the observance of any other formalities.

66. TYPES OF OBJECTS OF COPYRIGHT

Depending on the type of work: literary works; dramatic and musical-dramatic works, scenario works; choreographic works and pantomimes; musical works with or without text; audiovisual works; works of painting, sculpture, graphics, design, graphic stories, comics and other works of fine art; works of arts and crafts and scenographic art; works of architecture, urban planning and gardening art, including in the form of projects, drawings, images and models; photographic works and works obtained by methods analogous to photography; geographical, geological and other maps, plans, sketches and plastic works related to geography, topography and other sciences; other works.

The objects of copyright also include computer programs that are protected as literary works.

Copyright objects are divided into: - for original and derivative works (all the main protected elements of the original work are created by the author himself, in the derivative work the elements are partially borrowed (reworked) from other works); - simple and composite works (composite works by selection or arrangement of materials are the result of creative work); - published and unpublished.

(Promulgation is the action that first makes a work available to the public.

The translator, compiler or other author of a derivative or composite work shall exercise his copyright subject to the rights of the authors of the works used to create the derivative or composite work.

Copyright extends to a part of the work, to its title, to the character of the work, if by their nature they can be recognized as an independent result of the author's creative work and meet the requirements established by the Civil Code of the Russian Federation.

Special legal regulation is provided for by the Civil Code of the Russian Federation for the following types of works: - derivative works (Article 1260); - composite works (art. 1260); - computer programs and databases (Art. 1261-1262); - audiovisual works (art. 1263); - drafts of official documents, symbols and signs (Article 1264); - service works (Article 1295).

The legal regime of a work is also affected by the way it was created. The Civil Code of the Russian Federation provides for the specifics of the implementation of copyright in works created: - within the framework of an employee's labor duties (official works, art. 1295); - by order (Article 1296); - when performing work under a state or municipal contract (Article 1298); - when performing work under another contract (Article 1297).

67. SUBJECTS OF COPYRIGHT

Subjects of copyright, i.e., the owners of subjective copyrights, in accordance with Russian legislation, can be individuals, legal entities and public law entities.

1) The original subject of copyright is author (co-authors) - an individual whose creative work created the work.

Authorship presumption states that the person indicated as the author on the original or copy of the work is considered its author, unless proven otherwise (Article 1257 of the Civil Code of the Russian Federation). When a work is created by the joint creative work of two or more persons, co-authorship.

The authors of an audiovisual work (television and video film, etc.) are: the stage director, the author of the script, the composer - the author of a musical work specially created for this audiovisual work.

2) Heirs author as subjects of copyright.

The exclusive right to a work passes by inheritance. After the death of the author, heirs by will or by law become subjects of copyright.

The general duration of the rights of heirs is 70 years after the death of the author.

Non-property rights of the author (the right of authorship, the right to name and inviolability of the work) do not pass to the heirs, but may be protected by them along with other interested parties.

3) Other copyright holders - individuals and legal entities that have received copyright on the basis of a law or an agreement. The volume of acquired property rights is determined by law or by agreement.

Among other right holders, a new subject stands out - producer of an audiovisual work, who has the right to indicate his name (name), use the work and receive remuneration, including for the free use of an audiovisual work for personal purposes.

4) Organizations exercising collective management of copyrights - non-profit organizations that manage certain property rights of authors. The main functions of organizations exercising collective management of copyrights: - concluding license agreements with users; - collection of remuneration for the use of works; - distribution and payment of remuneration to right holders; - providing rights holders with reports on the use of their rights; - formation of registers of information about right holders, rights and objects of copyright.

68. SUBJECTIVE COPYRIGHT. EXCLUSIVE RIGHTS

Subjective copyright arises by virtue of the fact of creating a creative work, regardless of its purpose, merits, completeness, publication and other characteristics.

Traditionally, copyright is divided into personal non-property and property rights. In accordance with the terminology of Part IV of the Civil Code of the Russian Federation, the property rights of the author are referred to as "exclusive right".

The author of the work or other copyright holder owns exclusive right use the work in any form and in any way that does not contradict the law (exclusive right to the work).

non-exhaustive list of ways to use the work listed in the Civil Code of the Russian Federation.

1) Playback works - the production of one or more copies of a work or part of it in any material form.

2) Distribution works by selling or otherwise alienating its original or copies. Distribution is based on the principle "exhaustion of rights", according to which, if the original or copies of a lawfully published work are introduced into civil circulation on the territory of the Russian Federation through their sale or other alienation, further distribution is permitted without the consent of the copyright holder and without payment of remuneration to him. An exception is the right to receive remuneration in special cases (the right to follow).

3) Public display works - any demonstration of the original or copy of the work directly or on the screen using a film, transparencies, television frame or other technical means in a place open to the public, or in a place where there is a significant number of persons who do not belong to the usual family circle.

4) Import original or copies works for distribution. The right to import complements the right of the author to distribute and allows him to control the distribution of copies of the work imported from the territory of other states.

5) Rental of original or copy works.

6) Public performance of the work - presentation of a work in a live performance or with the help of technical means (radio, television and other technical means), as well as the display of an audiovisual work (with or without sound accompaniment) in a place open to the public, or in a place where there is a significant number of persons outside the normal family circle.

7) Message broadcast - communication of the work to the public (including display or performance) on radio or television (including by retransmission).

8) Cable communication - communication of a work to the public by radio or television using a cable, wire, optical fiber or similar means (including by retransmission).

9) Translation or other processing of the work.

10) Practical implementation architectural, design, urban planning or landscape gardening project.

11) Bringing the work to the public so that any person may access the work from any place and at any time of their choice.

69. OTHER PROPERTY RIGHTS

The authors (copyright holders) of certain types of works have additional rights related to the peculiarities of the implementation of the exclusive right to the work.

Access right - this is the right of the author of a work of fine art to demand from the owner of the original work to provide the opportunity to exercise the right to reproduce his work. By analogy, the author of a work of architecture has the right to demand from the owner of the original work to provide the opportunity to photograph and video film the work, unless otherwise provided by the contract.

Right to follow - this is the right of the author to receive remuneration from the seller in the form of percentage deductions from the resale price in the event of a public resale of the original work of fine art through a gallery, art salon, etc. The right to follow also extends to cases of resale of author's manuscripts (autographs) of literary and musical works . Right to follow inalienable, but passes to the author’s heirs for the duration of the exclusive right to the work.

The author of a work of architecture, urban planning or gardening art has exclusive right to use your work. The project and construction documentation based on it can be reused only with the consent of the author of the project. The author also has right to exercise copyright control for the development of documentation for the construction and right of copyright for the construction of a building or structure or other implementation of the relevant project.

The right holder may dispose of the exclusive right to the work and is entitled to receive remuneration in the exercise of this right.

The right to dispose of the exclusive right should be formalized by the conclusion of the relevant agreement: on the alienation of the right or a license agreement.

Author's right to remuneration can be implemented in various forms:

a) in the form of remuneration for the alienation of the exclusive right;

b) in the form of remuneration for the right to use the work under a license agreement (the remuneration may be paid in the form of fixed one-time or periodic payments, percentage deductions from income (revenue) or in another form);

at) in the form of a sale price upon alienation of the original work;

d) in the form of percentage deductions from the resale price of the original work (the right to follow);

d) in the form of remuneration for composers who are the authors of musical works (with or without text) used in an audiovisual work for public performance or broadcasting or broadcasting such an audiovisual work via cable (clause 3 of article 1263 of the Civil Code of the Russian Federation);

f) in the form of remuneration for the free reproduction of phonograms and audiovisual works for personal purposes (Article 1245 of the Civil Code of the Russian Federation);

g) in the form of remuneration for the use of an official work (Article 1295 of the Civil Code of the Russian Federation).

70. PERSONAL PROPERTY RIGHTS OF THE AUTHOR

1) Right of authorship - the right of the creator of a work to be recognized as the author of the work, i.e. the legally secured possibility of a person to be considered the author of the work and the corresponding opportunity to demand recognition of this fact from other persons.

2) The right of the author to the name - the right to use or allow the use of the work under his own name, under a fictitious name (pseudonym) or without specifying a name, that is, anonymously. Right of authorship and right of name inalienable и indescribable. Waiver of these rights is void.

3) The right to inviolability of the work consists in the prohibition without the consent of the author to make changes, abbreviations and additions to his work, to supply the work with illustrations, preface, afterword, comments or any explanations when using it. There are two sides to this law:

a) active, which means the right of the author to independently make changes and additions to the work;

b) passive, which means the right of the author to prohibit other persons from performing the above actions without his consent. Authorship, the name of the author and the inviolability of the work are protected in perpetuity. After death, protection is carried out by the person indicated by the author, the author's heirs, their legal successors and other interested parties.

4) The right to publish the work is the right to perform an act or to consent to an act that makes the work available to the public for the first time by publication, public display, public performance, broadcast or cable, or any other means. This right is always exercised with some other right of the author: the right to public display, public performance, publication, etc.

5) Right of publication (release to the public) - release into circulation of copies of a work, which are a copy of a work in any material form, in an amount sufficient to meet the reasonable needs of the public based on the nature of the work. This right refers to non-property, although it is quite closely related to property rights and is exercised together with them (the right to reproduce, distribute the work). The right of publication may be exercised simultaneously with the right of publication.

6) Right of withdrawal - this is the right of the author to revoke the earlier decision to publish the work, subject to compensation to the person who has been alienated the exclusive right to the work or granted the right to use the work for the losses caused by such a decision. If the work has already been published, the author is also obliged to publicly announce its withdrawal. In this case, the author has the right to withdraw from circulation previously issued copies of the work, indemnifying the losses caused by this. The right of withdrawal does not apply to computer programs, service works and works included in a complex object (Article 1240 of the Civil Code of the Russian Federation).

71. PATENT LAW

The objects of patent rights are: - results of intellectual activity in the scientific and technical field that meet the requirements for inventions and utility models established by the Civil Code of the Russian Federation; - the results of intellectual activity in the field of artistic design that meet the requirements for industrial designs established by the Civil Code of the Russian Federation.

Initial the subject of patent rights is author - a citizen whose creative work created the corresponding result of intellectual activity.

Patent holders - have the exclusive right to use an invention, utility model or industrial design and can dispose of this right by concluding an agreement on the alienation of an exclusive right or a license agreement.

Employers authors of service inventions, utility models and industrial designs acquire the exclusive right to the relevant object and the right to obtain a patent, unless otherwise provided by the contract with the employee and the Civil Code of the Russian Federation.

Customers in the event of the creation of an invention, utility model or industrial design, the contractor (executor) under the contract acquires the exclusive right and the right to obtain a patent or the right to use the object on the terms of a free simple (non-exclusive) license in accordance with the terms of the contract and the rules of the Civil Code of the Russian Federation.

Russian Federation, constituent entities of the Russian Federation or municipalities acquire the exclusive right and the right to obtain a patent, or the right to use the relevant object on the terms of a free simple (non-exclusive) license in accordance with the concluded state or municipal contract and the rules of the Civil Code of the Russian Federation.

Heirs and other successors the owner of the exclusive right to an invention, utility model or industrial design may acquire the relevant rights in cases and on the grounds established by law.

Other entities may acquire the rights to inventions, utility models and industrial designs on the basis of an agreement on the alienation of rights, a license agreement or a court decision on granting a compulsory simple (non-exclusive) license.

Federal Service for Intellectual Property, Patents and Trademarks (Rospatent) - the federal executive body for intellectual property organizes the acceptance of applications, issues patents, registers agreements on granting rights to objects of industrial property, etc.

Patent Attorneys - representatives who, along with other persons, conduct business in Rospatent.

Chamber of Patent Disputes - a dispute resolution body formed under Rospatent. Engaged in the consideration of applications and objections in order to ensure the legally protected rights and interests of applicants and holders of titles of protection for intellectual property, as well as the legitimate interests of other individuals and legal entities in this area.

72. INDIVIDUALIZATION MEANS

Brand name commercial organization - the name under which the legal entity acts in civil circulation. The company name is indicated in the constituent documents and is included in the unified state register when registering a legal entity. faces.

The main function of a brand name is the individualization of participants in civil circulation.

Subjects of law on the brand name are commercial organizations.

The legal entity owns exclusive right using your company name as a means of individualization in any way that does not contradict the law (exclusive right to a company name), including by indicating it on signs, letterheads, invoices, contracts and other documentation, in announcements and advertisements, on goods or their packaging .

Disposal of the exclusive right to a company name не допускается.

According to the Paris Convention for the Protection of Industrial Property, a trade name is protected in all countries participating in the convention, without the need for an application or registration, and regardless of whether it is part of a trademark.

Trademark - this is a designation that serves to individualize the goods of legal entities or individual entrepreneurs. The exclusive right to a trademark is certified by a certificate.

Service mark - this is a designation that serves to individualize the work performed by legal entities or individual entrepreneurs or the services they provide. Trademarks and service marks are governed by the same rules.

Subject of exclusive right A trademark may be a legal entity or an individual entrepreneur. The subject (copyright holder) is the person in whose name a trademark certificate has been received.

Depending on the content of the designation, the following types of trademarks are distinguished: verbal, visual, volumetric, combined, other.

Depending on the number of entities that have the right to a trademark, there are individual and collective trademarks. The subject of the right to a collective mark is an association of persons. The right to use such a mark belongs to each member of the association. In this case, the collective mark must designate goods produced or sold by persons included in the association and having common characteristics of their quality or other common characteristics. The right to a collective mark cannot be alienated and cannot be the subject of a licensing agreement.

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