Subjects civil relations – participants civil relations.
Types of subjects of civil legal relations:
Individuals (citizens of the Russian Federation, foreign citizens, stateless persons);
Legal entities;
State.
Individuals how the subjects of civil legal relations are characterized by a number of features: they must be individual; have legal capacity and capacity (legal personality).
The means of individualization of a citizen are his appearance, name and place of residence. Name citizen - his name, patronymic and surname. Place of residence 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 without a trace. The consequences of such recognition: the property of this citizen is transferred by a 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. In the absence of a citizen at 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 hostilities. In such cases, not only the consequences indicated above occur, but the inheritance is also opened. In the event of the appearance of a citizen, the court cancels its decision and the citizen has the right to return the property that belonged to him, which turned out to be in the possession of other persons.
A number of legal facts (acts civil status), relating to a citizen is subject to state registration in the civil registry offices (for example, birth, death, marriage and divorce, adoption (adoption)).
For participation in civil circulation 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 of age - 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.
11. Legal capacity of citizens: the concept and content, the moment of occurrence and termination.
Civil capacity It is the ability to have civil rights and bear responsibilities.
Legal capacity of a citizen arises at the moment of birth and ceases at the moment of death.
A citizen can waive a subjective right, but cannot waive legal capacity.
The ability to have civil rights must be distinguished from the possession of these rights. Legal capacity is only a general prerequisite for the emergence of subjective rights and obligations. The presence of legal capacity only indicates that a person may have certain civil rights, for example, the right of ownership, for example, to a car, but this does not mean that this person is in this moment has a car. The right of ownership as a subjective right arises for a citizen as a result of certain legally significant actions (legal facts), for example, as a result of concluding a contract for the sale of a car. Before buying a car, a citizen had only civil capacity, i.e., the opportunity to have civil rights and bear obligations, and after his purchase this opportunity turned into a reality and he became the owner of a subjective civil right - the right to own a car.
The legal capacity of all citizens is the same. Each of the citizens can have the same rights as any other (general legal capacity). An indicative list of civil rights that may belong individual citizens contained in Art. 18 hours 1 of the Civil Code of the Russian Federation.
Citizens can:
1. have property on the right of ownership;
2. inherit and bequeath property;
3. engage in entrepreneurial and any other activities not prohibited by law;
4.create legal entities;
5.commit any non contrary to the law transactions;
6. choose a place of residence;
8. have other property and personal moral rights.
The concept, content, varieties of legal capacity of citizens.
Civil capacity is defined in the law as the ability of a citizen to acquire and exercise civil rights by his actions, to create for himself civic obligations and fulfill them.
The most significant elements of the content of the legal capacity of citizens is the ability to independently conclude transactions (dealability) and the ability to bear independent property liability (delictual capacity). The Civil Code also singled out the possibility of a citizen to engage in entrepreneurial activity as an element of the citizen's legal capacity.
Citizens are divided into four groups according to the volume of legal capacity:
Fully capable;
Partially capable;
limited capacity;
Incompetent.
Fully capable citizens These are citizens over the age of 18.
Partially capable it is customary to call citizens under the age of 18, that is, minors.
Disability limitation citizens are not allowed, except in cases expressly statutory. One of such cases is, for example, the restriction by the court of the legal capacity of citizens who abuse alcohol or drugs.
Incompetent by a court decision, citizens are recognized who, as a result of mental disorder cannot understand the meaning of their actions or direct them.
It is customary to call partially capable citizens who have not reached the age of 18, that is, minors.
Minors by their actions, that is, independently, can acquire not all, but only a certain range of civil rights. They may acquire other rights only with the consent of their parents, adoptive parents or guardians, or only through transactions made on their behalf by parents, adoptive parents or guardians. It depends on the age of the minor.
Partial legal capacity of minors (from 6 to 14 years old)
For minors under the age of 14 (minors), transactions can only be made on their behalf by their parents, adoptive parents or guardians. But minors aged 6 to 14 years have the right to independently commit:
Small household transactions;
Transactions aimed at gratuitous receipt of benefits (gifts) that do not require notarization or state registration;
Transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.
Partial legal capacity of adolescents (from 14 to 18 years old)
Minors between the ages of 14 and 18 have the right to make transactions themselves. However, this requires the written consent of parents, adoptive parents or guardians. Otherwise, a transaction made by a minor between the ages of 15 and 18 without the consent of parents, adoptive parents or trustees may be declared invalid by the court. At the same time, minors between the ages of 14 and 18 can make a number of transactions on their own. These include:
Small household transactions;
Transactions on the disposal of their earnings, scholarships and other income;
Making deposits in credit institutions and managing them.
Emancipation- declaration of a minor who has reached the age of 16, fully capable by decision of the guardianship and guardianship authority - with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision.
The foundations of emancipation are work on employment contract or doing business.
14. Restriction of the legal capacity of citizens: grounds and legal consequences.
The limitation of legal capacity consists in the fact that a citizen is deprived of the ability by his actions to acquire such civil rights and create such civil obligations that he could already acquire and create by virtue of the law. It's about, therefore, about the reduction of the volume of legal capacity that the person had. Limited in capacity can be both a person with incomplete (partial) capacity, and a person with full capacity.
Restriction of incomplete (partial) legal capacity of minors under the previous legislation was allowed by decision of the guardianship and guardianship authorities. The Civil Code has strengthened the protection of the interests of minors in this area. Restriction of legal capacity of minors aged 14 to 18 years is allowed only by a court decision. Restriction of legal capacity may be expressed in the restriction or even deprivation of the minor's right to independently dispose of earnings, scholarships or other income. After the court makes such a decision, the minor will have the opportunity to dispose of earnings, scholarships and other income (in full or in part) only with the consent of the parents, adoptive parents, guardian.
The Civil Code defines the circle of persons who can apply to the court with a petition to restrict or deprive a minor of the right to independently dispose of earnings, scholarships or other income: they include parents, adoptive parents or trustees, as well as the guardianship and guardianship authority.
The decision to restrict the legal capacity of a minor between the ages of 14 and 18 may be taken by the court "if there are sufficient grounds". Such grounds should be recognized as spending money for purposes that are contrary to the law and moral standards (purchase of alcoholic beverages, drugs, gambling etc.), or their unreasonable spending, without taking into account the needs for food, clothing, etc.
Depending on the specific circumstances the court may either restrict the minor in the right to freely dispose of earnings, scholarships or other income, or completely deprive him of this right. The choice of solution depends on how strong the minor's bad inclinations are and how serious his mistakes are in the management of earnings, scholarships, and other incomes. On the basis of a court decision, the salary, stipend, other income of a minor must be given in full or in part not to him, but to his legal representatives- parents, adoptive parents, guardian.
The Civil Code does not directly provide for the possibility of restricting the legal capacity of a minor for a certain period. It seems that the court has the right to establish such a period in its decision. In this case, after the expiration of the period established by the court, the partial legal capacity of the minor must be considered restored to the extent that he had before its restriction. If the period for which the legal capacity of a minor is limited has not been specified, then the restriction is valid until the minor reaches the age of 18 or until the restriction is lifted by the court at the request of those persons who applied for the restriction.
It is impossible to restrict the legal capacity of a minor if he has acquired full legal capacity in connection with marriage before reaching the age of 18 or by way of emancipation. Consequently, in relation to minors aged 14 to 18 years, this means the restriction of their partial legal capacity.
MEANS OF INDIVIDUALIZATION PHYS. PERSONS:
According to Article 19 (“Citizen's name”), each person acquires rights and obligations under his own name, and in certain cases - under a pseudonym (false name) or anonymously.
First name includes full name. AT official documents it must be specified in full. The name received at birth is subject to state registration and is expressed in the issuance of a birth certificate and an entry in the birth book.
The acquisition of rights and obligations under the name of another person is not allowed. Damage caused by this is subject to compensation. When the name of a citizen is distorted in a way that affects his honor and dignity, the right to protect his good name arises.
Upon reaching the age of 16, a citizen has the right to change his name and the right to demand (at his own expense) the introduction of changes in documents drawn up in the former name or their replacement. The name change is not grounds for terminating or changing his rights and obligations acquired under the former name. A citizen is obliged to take the necessary measures to notify his debtors and creditors of the change of his name and bears the risk of the consequences of failure to notify. Some cases of changing the name are provided for by the RF IC (marriage, divorce, adoption).
Place of residence(clause 1, article 20) is the place where a citizen permanently or predominantly resides. It can be a house, an apartment, Staff only, specialized houses (dormitories, hotels, shelters), as well as other residential premises in which a citizen permanently or predominantly resides as an owner, under a contract of employment, lease or on other grounds provided for by law. MF must be determined with sufficient accuracy ( locality, street, house and apartment number).
The place of residence of minors under 14 years of age and wards is recognized by the MJ of their legal representatives.
The MJ determines the place of performance of the obligation and the place of opening of the inheritance. Also, there is a presumption that a citizen is always in the MJ, so all summonses and official notices are sent exactly the same way.
Permanent residence means that, due to the created conditions, a citizen has settled in this place. Predominant residence means a place where a citizen lives more than in other places (geologists, sailors, builders).
Article 27 of the CRF proclaims the principle of freedom to choose a place of residence, but at the same time, the law (Article 8 of the Federal Law of June 25, 1993 “On the right of citizens of the Russian Federation to freedom of movement, VMPiZh within the Russian Federation”) establishes a restriction on this right. It can be limited: in the border zone, in closed military camps, in ZATOs, in zones of ecological disasters, etc.
Now in the Russian Federation, the regime of declarative registration when changing the breast.
ACTS OF CIVIL STATUS
Acts of civil status are legal facts that affect the emergence, change and termination of rights and obligations that are subject to state registration.
Registration is subject to: birth, marriage, divorce, adoption (adoption), establishment of paternity, name change, death of a citizen.
ACS, as the main events of human life, are subject to compulsory registration on behalf of the state in the recording authorities of the ACS (Article 47). The purpose of registering ACS is that they are indisputable evidence of verified facts - leads to the stability of civil circulation. Registration of the ACS is also carried out in the interests of the state: in order to know the dynamics of the population (how many are born, die, marry, etc.). Registration is carried out according to the Federal Law "On AGS". In the event of a dispute, the record of the ACS can only be changed by the court. In the absence of a dispute - on the basis of the conclusion of the registry office.
GR AGS is produced territorial bodies registry office. Registration is carried out by drawing up 2 identical copies on the form of the appropriate form, which includes necessary information about the citizen and about the ACS itself. On the basis of the record drawn up, citizens are given a certificate in their hands - a document certifying the fact of the GR ACS.
Ticket number 18.
Recognition of a citizen as missing and declaration of death: grounds and consequences.
Recognition of a citizen as missing.
The court may recognize a person as missing if, in during the year in the place of his permanent residence there is no information about the place of his stay. Statement of claim Any interested person can sue.
Legal Consequences:
Dependents acquire the right to receive a survivor's pension. Dependents - persons who were dependent on the person who disappeared for a period of at least 1 year.
Spouse such a person has the right to dissolve the marriage with him in a simplified manner.
powers of attorney issued in the name of the absentee or issued by him lose their force
Property of such a person, if it is necessary to permanently manage it, by a court decision, it is transferred to a person in trust management. This person is determined by the body of guardianship and guardianship. From this property is allocated for the maintenance of dependents, and the obligations and debts of the absentee are repaid.
In case of appearance, or discovery of the place of stay of a person recognized as missing, the court cancels the decision to recognize him as missing and the trust management of his property is removed.
Declaring a person dead.
If at the place of residence of a citizen, there is no information about the place of his stay in within 5 years, then such a citizen may be declared dead by the court.
This period is reduced:
1) up to 6 months, if the citizen disappeared under circumstances threatening death or giving reason to assume his death from a certain accident
2) the period is reduced to 2 years if the person went missing during military operations. The term is calculated from the moment of the end of hostilities.
Legal consequences: as at death.
A death certificate is issued, an inheritance is opened, dependents acquire the right to pensions and benefits, acquire the status of an orphan. Marriage ends automatically and obligations of a personal nature cease.
In the case of the appearance of the deceased, the court cancels the decision. The resurrected person has the right to demand from the person any remaining property that was transferred to him free of charge (with the exception of money and bearer securities).
Persons to whom the property has passed through transactions for compensation are obliged to return the property in money or in kind, if they knew that the person was alive.
Ticket number 19.
Guardianship and guardianship.
Their task is to fill the missing legal capacity of certain categories of citizens in order to protect their rights and interests. At guardianship The goal is to educate the student.
Guardians and trustees act on behalf of their wards without special authority. They are obliged take care of the maintenance of the wards, their care and treatment, protect their rights and interests. O and P m.b only an adult, capable person, not deprived parental rights. O&P is overseen by the organ of O&P.
Name as a means of individualization of a participant in civil legal relations
Each person participates in civil legal relations under a certain name and only in relatively rare cases (for example, in copyright relations) - under a pseudonym (false name) or anonymously (without a name). The name is one of the means of individualization of a citizen as a participant in civil legal relations. In a broad sense, the concept of “name” among the majority of the peoples of Russia covers the surname, first name and patronymic (clause 1, article 19 of the Civil Code). However, the national customs of some peoples of Russia do not know such a thing as “patronymic”, and it is not indicated in official personal documents. According to the law, a citizen acquires and exercises civil rights and obligations under his own name. The acquisition of rights and obligations under the name of another person is not allowed (clause 4, article 19 of the Civil Code).
Right to a name- the most important non-property right of a citizen ( individual), personality. A good name as an intangible benefit belonging to a citizen is protected in cases and in the manner provided for by the Civil Code and other laws, and is among the benefits that are inalienable and non-transferable in any other way (clause 1, article 150 of the Civil Code). In particular, it provides for the protection of the right to a name in cases of distortion or use of a citizen's name in ways or in a form that affect his honor, dignity or business reputation (paragraph 2, clause 5, article 19 of the Civil Code).
Upon reaching the age of 16, a citizen has the right to change his name in the manner prescribed by law. At the same time, he has the right to demand that appropriate changes be made at his own expense to the documents issued in his former name, or their replacement (passport, birth certificate, marriage certificate, diploma, etc.). A change of a name by a citizen is not a basis for terminating or changing his rights and obligations acquired under the former name. Along with this, it is provided that a citizen is obliged to take the necessary measures to notify his debtors and creditors about the change of his name and bears the risk of consequences caused by the lack of information on the change of his name by these persons.
Information about the name (surname, name, patronymic) received by a citizen at birth, as well as a change of name, is subject to state registration in the manner established for registration of acts of civil status.
Citizenship
Citizenship means the official belonging of a person to the people of a certain country, as a result of which he is in the sphere of jurisdiction of this state and under its protection (Federal Law "On Citizenship of the Russian Federation").
The importance of citizenship in determining the civil status of an individual can be seen in the example of the rules governing the status of persons located on the territory of the Russian Federation, but not among its citizens. So, according to Art. 1196 and 1197 of the Civil Code, the civil legal capacity and legal capacity of a foreign citizen are determined by his personal law, i.e. by the law of the country of which he is a citizen. AT this case by direct order of the law, the solution of the issue of applicable law depends on the nationality of the person.
According to Art. 1196 of the Civil Code and Art. four federal law"O legal status foreign citizens in the Russian Federation” foreign citizens and stateless persons enjoy civil legal capacity in the Russian Federation, and also have the rights and bear obligations on an equal basis with citizens of the Russian Federation, except for cases provided for by federal law.
At the same time, the procedure and conditions for temporary stay, as well as temporary or permanent residence of foreign citizens and stateless persons on the territory of the Russian Federation, their movement within the Russian Federation and the specifics of the implementation certain types activities are determined by special laws (Articles 511, 14, 291 of the Law on the Legal Status of Foreign Citizens, paragraph 4 of Article 56 of the Air Code, etc.).
Age as an element of civil status
The third circumstance to which the law attaches great importance in determining the status of a citizen is age. Thus, the law determines the age at which adulthood comes, as well as the partial legal capacity of minors (Articles 21, 26, 28 of the Civil Code). Age is of decisive importance in resolving such issues as declaring a minor citizen fully capable, when citizens join cooperative organizations, when determining the circle of heirs, as well as persons entitled to compensation for harm caused to health, and in many other cases.
Family status
civil legal status a citizen often depends on his marital status. Thus, the legislation attaches importance to the state of a person in marriage, his family ties. For example, according to paragraph 2 of Art. 672 Civil Code living under a contract social recruitment living quarters, together with the tenant, members of his family enjoy all the rights and bear all obligations under the tenancy agreement on an equal basis with the tenant. If the person living in this premises is not a member of the tenant's family, his legal status in the field of these housing relations will be different compared to the status of family members. In accordance with Art. 1142 of the Civil Code, the heirs according to the law of the first priority are the children, spouse and parents of the testator. Consequently, a person can acquire the status of an heir by law only if there are indicated family-legal relations with the deceased.
Sometimes for the civil status of a person, his gender has a certain meaning. For example, paragraph 1 of Art. 58 of the LCD provides that when providing residential premises under social tenancy agreements, the settlement of one room by persons of different sexes, except for spouses, is allowed only with their consent. The law establishes a different age for men and women, upon reaching which they are considered disabled, which is important in determining the right to compensation for harm in the event of the death of the breadwinner (clause 2 of article 1088 of the Civil Code), in determining the circle of heirs by law and in some other cases .
Health status
Among the signs that individualize a citizen (individual) as a participant civil law relations also applies to his state of health. First of all, the law takes into account mental health. According to paragraph 1 of Art. 29 of the Civil Code, a citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be declared legally incompetent by a court. In accordance with paragraph 1 of Art. 171 of the Civil Code, a transaction made by a citizen recognized as legally incompetent due to a mental disorder is void.
For the individualization of a citizen as a subject of civil law, in some cases, such a state of health is important, which is expressed in a decrease or loss of his ability to work. If these circumstances have arisen as a result of causing harm to him by another person, then when compensating for harm, the degree of loss of the injured person's ability to work is taken into account. In the event of a permanent disability, the victim may be recognized as a disabled person and acquires the rights due to this status, for example, the right to compensation for harm in the event of the death of the breadwinner (paragraph 2 of article 1088 of the Civil Code).
Classifications legal entities
In accordance with the Civil Code of the Russian Federation, legal entities permitted by law are classified according to:
objectives of the activity (making a profit or achieving any other goals not prohibited by law, except for making a profit);
organizational- legal form, i.e., by permitted types of organizations;
· the nature of the relationship between the legal entity and its founders in terms of whether or not the founders have property rights to their contributions to the property of this legal entity.
Purpose of activity
According to the purpose of activity, legal entities are divided into two large classes: commercial and non-profit organizations.
commercial organization- is an organization engaged in commercial activities, or is an organization - a market participant, the main purpose of which is to make a profit.
Non-profit organization is an organization that non-commercial activities, or it is an organization whose main purpose of activity is one or another goal not related to making a profit, which in turn is not subject to distribution among the participants of this organization.
Legally, the difference between commercial and non-profit organizations in the modern Civil Code of the Russian Federation boils down to the following: both organizations can make a profit, but in a commercial organization this profit can be distributed among the founders (participants), and in a non-profit organization all the profits received are spent on statutory goals.
Organizational and legal form of a legal entity- this is a set of specific features that objectively stand out in the system of general features of a legal entity and significantly distinguish this group of legal entities from all others.
According to the organizational and legal form, each class of legal entities is divided into groups.
Commercial organizations can be created exclusively in the following forms: business partnerships, business companies, production cooperatives, state and municipal unitary enterprises.
Non-profit organizations can be created in the following forms: consumer cooperatives; public and religious associations; owner-funded institutions; charitable foundations and in other legally permitted forms.
Legal regime of property
Depending on the legal regime property of legal entities are divided into:
subjects of property rights (economic partnerships and societies, cooperatives and all non-profit organizations, except for institutions);
subjects of law economic management(state and municipal unitary enterprises, subsidiaries);
subjects of law operational management(federal state enterprises, institutions).
In world practice, in the legislation of other countries there are other types of legal entities, which reflects, on the one hand, a long history of the development of a market economy, and on the other hand, national characteristics every country. From this point of view, in the future, other types of legal entities may appear in Russia, if this becomes necessary for the participants of the Russian market.
The legislation knows several ways (orders) of creating legal entities:
· Clearly-regulatory (or normative-attendance, sometimes also called declarative or registration), it eliminates the need to obtain prior permission from the authorities public authority to create a legal entity.
Permissive procedure (associated with the need to obtain prior permission from public authorities to create an appropriate legal entity, which usually serves the common interests of all participants in the turnover, for example, commercial banks are created in this manner, since their activities are related to the provision of financial services to an unlimited number of consumers and accumulation of significant funds).
The founders of a legal entity may be:
their initial participants (members) (in business companies and partnerships, cooperatives, associations, public and religious organizations);
the owner of their property or a body authorized by him (when creating unitary enterprises and institutions);
Other persons making property contributions to them, although not subsequently directly participating in their activities (founders of funds).
Any legal entity (unlike a citizen) arises as a result of the implementation legal procedures, the general meaning of which is reduced to two main stages:
· preparation constituent documents in writing and their representation by interested parties to the registration authority;
· state registration of a legal entity (Articles 51, 52 of the Civil Code).
The wording and meaning of the provision of par. 1 p. 1 art. 52 of the Civil Code (taking into account paragraph 3 of paragraph 1 of Article 52) allows us to conclude that according to general rule legal entities act on the basis of the charter, and in cases stipulated by law - on the basis of memorandum of association and the charter or only the memorandum of association.
Civil rights protection
Civil rights protection- a mechanism for implementing measures to protect subjective civil rights and interests.
There are two main forms of protection:
§ non-jurisdictional;
§ Jurisdictional.
Non-jurisdictional form of protection carried out independently by a private individual whose rights are violated or disputed. Juridical form may be implemented by the state or other authorized body(judicial and administrative procedure for the protection of civil rights).
Forms of protection of rights:
§ administrative;
§ judicial;
§ self-defense.
Protection of civil rights in administrative procedure carried out only in cases provided for by law.
Methods of self-defence must be proportionate to the violation and not go beyond the limits of the actions necessary to stop it. Examples of actions in self-defence include necessary defense and emergency.
private easement
Art. 274-277 of the Civil Code of the Russian Federation establishes the following.
Owner real estate has the right to demand from the owner of another land plot ( neighboring plot) granting the right to limited use of a neighboring plot (private easement).
A private easement may be established for:
Ensuring passage and passage through a neighboring land plot;
laying and operation of power lines, communications and pipelines;
· provision of water supply and melioration;
· as well as other needs of the owner of immovable property, which cannot be provided without establishing an easement.
foundation Establishment of a private easement is an agreement between the person requiring the establishment of an easement and the owner of a neighboring plot. In case of failure to reach an agreement on the establishment or conditions of a private servitude, sport is permitted by the court at the suit of the person requiring the establishment of a private servitude.
Private forest easements can be established on the basis of an agreement, acts of state bodies and acts of bodies local government as well as court decisions.
Private water easements can be established by virtue of an agreement, as well as on the basis of a court decision.
Encumbrance of a land plot with an easement does not deprive the owner of the land plot of the rights of possession, use and disposal of this plot.
The owner of a plot encumbered with an easement has the right, unless otherwise provided by law, to demand from the persons in whose interests the easement is established, a proportionate payment for the use of the plot.
At the request of the owner of a land plot encumbered with an easement, the easement may be terminated due to the disappearance of the grounds on which it was established.
public easement
A public easement is established by a law or other regulatory legal act of the Russian Federation, a regulatory legal act of a constituent entity of the Russian Federation, a regulatory legal act of a local self-government body.
A public easement is established in the public interest, that is, if it is necessary to ensure the interests of the state, local self-government, and the local population.
A public easement may be established for:
passage or passage through the land;
use of the land;
carrying out drainage works on the land plot;
driving farm animals through the land;
grazing of farm animals;
· haymaking;
use of land for hunting and fishing purposes;
Temporary use of land for the purpose of research work;
· free access to the coastal strip.
According to the rules of a public forest easement, citizens have the right to freely stay in the forest fund.
According to the rules of public water easement, everyone can use water bodies common use and other water bodies, unless otherwise provided by the legislation of the Russian Federation.
Right of economic management- this is a subjective civil right, which is a type and measure of the subject's possible behavior in relation to property assigned to him directly by the owner of the property, secured by law.
Subjects of the right of economic management are unitary enterprises. Only state and municipal enterprises can be created in the form of unitary enterprises, since the property of these enterprises is, respectively, in state or municipal ownership.
A unitary (state, municipal) enterprise based on the right of economic management is created by decision of the authorized government agency or local government. The right of economic management of property in respect of which its owner has decided to fix this property for a unitary (state, municipal) enterprise arises for such an enterprise from the moment of transfer of property, if by law, other legal acts or otherwise established by the decision of the owner of the property. The economic management of the enterprise also includes the fruits, products and income from the use of the property provided for economic management, as well as the property that such an enterprise has acquired under a contract or other legal basis.
The property of a unitary enterprise, by virtue of its belonging to a single owner - the state, state or municipal formation, is indivisible and cannot be divided among the employees of the enterprise according to contributions. The property assigned to such an enterprise during its creation forms its statutory fund, which is formed at the expense of money, securities, other things, property and other rights having a monetary value. The minimum size of the authorized capital of a state unitary enterprise must be at least 5 thousand, for a municipal unitary enterprise - at least 1 thousand minimum wages established by federal law on the date of state registration of the enterprise (clause 3, article 12 of the Federal Law "On state and municipal unitary enterprises).
In fact, the property assigned to a unitary enterprise on the right of economic management practically “leaves” the owner - the state, state or municipality and is credited to the balance sheet of a unitary enterprise that owns, uses, and sometimes disposes of it within the limits established by law or other legal acts, as a result of which there is a corresponding restriction of the right to state or municipal property.
The object of the right of economic management is, first of all, the enterprise itself as a property complex, which is used for the implementation of production or other economic activity(Article 132 of the Civil Code of the Russian Federation). At the same time, the composition of the enterprise as a property complex may include any types of property intended for its economic activities, including land, buildings, structures, equipment, inventory, raw materials, products, debts, rights of claim, as well as the rights of the enterprise to individualizing designations (company name, trademarks and etc.).
The right of operational management property is a subjective civil right, i.e. legally secured type and measure of the possible behavior of its owner in relation to the property assigned to him by the owner.
In contrast to the right of ownership, the right of operational management, firstly, depends on the power of the owner of the property; Secondly, is based on the right of ownership and is dependent on it; third, implies that the creation and existence of the subject of the right of operational management is possible insofar as the owner recognizes such its existence as necessary and expedient; fourthly, admits that the owner of the property may oblige the subject of the right of operational management to fulfill the task of the owner and use the property provided to him strictly for his intended purpose.
Operational property management should be distinguished from management as an organizing activity of the state. The owner, represented by the bodies authorized by him, may carry out both civil law and administrative acts in relation to the property transferred for operational management. And the right of operational management can also be exercised by committing both civil and administrative acts. According to paragraph 2 of Art. 296 of the Civil Code of the Russian Federation, the owner of property assigned to a state-owned enterprise or institution has the right to withdraw excess, unused or misused property and dispose of it at his own discretion. It is, on the one hand, a civil act, and on the other, an administrative act.
The Concept for the Development of the Civil Legislation of the Russian Federation proposes to define the right of operational management as the right to own, use and dispose of the owner's property within the limits established by law, as well as in accordance with the goals of the activity, the tasks of the owner and the purpose of the property. At the same time, it is stipulated that the scope of restrictions on the right of operational management may depend on the category of the subject of this right and on the type of object for which given right distributed by. Both movable and immovable things can act as objects of the right of operational management, with the exception of land plots, water bodies and subsoil plots.
According to the current Russian legislation, state-owned enterprises and institutions can be subjects of the right to operational management of property. The Concept stipulates that, as a general rule, the subjects of the right of operational management should be state or municipal legal entities; with regard to the property of private institutions, it is proposed to use the ownership model.
Main types of transactions
Deal classification:
Unilateral, bilateral and multilateral;
paid and unpaid;
real and consensual. consensual deals from lat. consensus - an agreement - these are transactions that give rise to civil rights and obligations from the moment their parties reach an agreement. The subsequent transfer of a thing or the commission of another action is carried out for the purpose of their execution. Consensual are purchase and sale transactions, as well as many transactions for the performance of work and the provision of services (contract, commission agreement, etc.).
To make the real deal(from lat. res - thing) one agreement between its parties is not enough. It is also necessary to transfer the thing or perform another action. Some transactions for the transfer of property into ownership or otherwise are real. real right(for example, donation and loan transactions that are not formulated as a promise to donate and issue a loan), individual transactions on the temporary transfer of things (for example, the agreement of the bailor and the custodian is not enough to create a storage agreement, it is necessary to transfer property for storage), contracts for the carriage of goods and some others ;
causal and abstract. It can be seen from the causal transaction what legal purpose it pursues. So, from the contract of sale it is always possible to determine what property the buyer wants to acquire the right of ownership and in connection with the sale of which property the seller has the right to demand payment. The rights and obligations of subjects arising from a causal transaction must correspond to its basis, and their implementation must correspond to the terms of the transaction.
There are the following main types of causal grants:
· causasolvendi - provision occurs for the purpose of fulfilling an obligation;
· causacredendi - the provision is made for the purpose of acquiring a claim;
· causadonandi - granting occurs for the purpose of gratuitously increasing someone else's property.
In some cases, granting has multiple causes. Thus, by providing a loan promised to them, the bank fulfills its obligation and acquires a claim for the return of the loan; therefore its provision is based on both causasolvendi and causacredendi.
Abstract deals- these are transactions that give rise to rights and obligations, as if cut off from the basis of the transaction (from Latin abstrahere - to tear off, separate). An example of an abstract transaction is the issuance of a bill that certifies either an unconditional obligation of the drawer (a promissory note) or an unconditional offer to the payer specified in the bill (a bill of exchange) to pay, upon the expiration of the period stipulated by the bill, the sum of money specified in it. It is not clear from the bill on the basis of which the right of the bill holder to demand the payment of monetary amounts arose. This is the basis of its turnover. According to the current civil legislation, all transactions for the issuance and transfer of securities are classified as abstract transactions. According to paragraph 2 of Art. 147 of the Civil Code refusal to fulfill an obligation certified security, with reference to the absence of a basis for an obligation or its invalidity is not allowed;
fiduciary and non-fiduciary. fiduciary transactions(from lat. flducia - trust) - these are transactions based on a special, personally-confidential relationship of the parties. The loss by the parties of this nature of the relationship makes it possible for any of them to unilaterally refuse to execute the transaction (for example, in the contract of commission, both the attorney and the principal have the right to refuse to execute it at any time without specifying motives). A participant in a general partnership has the right to withdraw from the partnership at any time without the consent of other participants, which means a free withdrawal from the memorandum of association. Such transactions are rare and generally not typical for property turnover.
Transactions can be classified in other ways, depending on the purpose of the classification.
So, according to the method of fixing the will parties to the transaction can be divided into verbal (oral) and literal (written).
According to the peculiarities of the legal mechanism the actions of transactions can be divided into transactions made with or without a condition, etc.
Concept and terms of the contract
A contract is a transaction concluded between two or more persons (parties to a contract), according to which the party to the contract undertakes or the parties to the contract undertake to perform or not to perform any action. (quasi contract) A court-established obligation of one party to another in the absence of a formal agreement between the parties
The term "contract" is used in several meanings:
firstly, as the basis for the emergence of a legal relationship ( legal fact);
secondly, as a legal relationship arising from this basis (obligation);
thirdly, as a document (a form of agreement).
The contract is binding on the parties to the contract.
Freedom of contract manifests itself in several different aspects.
Firstly, it is the freedom to conclude an agreement and the absence of coercion to enter into contractual relationship. In other words, the subjects of civil law themselves decide whether or not to conclude this or that contract, since none of them is obliged to enter into a contract against their will.
Secondly, the freedom of the contract consists in the freedom to determine the nature of the contract being concluded. In other words, the subjects of property (civil) turnover decide for themselves which contract to conclude.
The contract as a legal fact serves as the basis for the emergence of the contract as a legal relationship or a contractual legal relationship. The contract as a legal fact and as a legal relationship are independent aspects of the contract, different sides in its development.
Treaty in civil law as branches of law and contract law as a sub-branch of civil law is the main way to resolve civil relations and the emergence of obligations.
The essential terms of the contract are the terms that must be agreed upon by the parties. The contract is considered not concluded until at least one of its essential conditions. They are:
conditions on the subject of the contract;
conditions required for this type of contract;
the conditions called essential in the law;
conditions that are considered essential by one of the parties to the contract.
The usual terms of the contract do not need to be agreed by the parties, since they are provided for by law and come into force automatically upon conclusion of the contract.
Random contract terms are terms that modify or supplement its usual terms. Random terms are included in the text of the contract at the discretion of the parties. Unlike normal conditions, they acquire legal effect only after they are included in the text of the treaty. Unlike the essential terms of the contract, their absence does not affect the validity of the contract, unless the interested party proves that he demanded the agreement of this term.
Terms of an agreement. The content of the contract consists of its conditions (articles or clauses), on which the parties entering into the contract reached agreement during the negotiations. Some conditions are included in the contract due to the fact that they are prescribed by law, but most of the conditions are developed and agreed upon by the parties themselves, taking into account their requirements for the subject of the contract and the procedure for its execution.
Inheritance by law
Inheritance by law- the transfer of property belonging to the deceased citizen to the persons specified in the law. It occurs if:
- the testator did not leave a will;
- bequeathed part of the property;
- the will left by the deceased is wholly or partially declared invalid;
- there are persons entitled to a compulsory share in the inheritance.
Legal heirs are called to inherit in order of priority.
Legislator at present the current edition third part Civil Code The Russian Federation provided for seven main lines of heirs, and, as an independent subject of inheritance legal relations, singled out disabled dependents who were dependent on him and lived with him for at least a year before the death of the testator, who inherit as heirs of the eighth line.
Heirs by law of first order are the children, spouse and parent of the decedent. The grandchildren of the testator and their descendants inherit by right of representation, that is, they are heirs by law, if by the time the inheritance is opened, one of their parents who would be the heir is not alive. They shall inherit equally in the share that would be due under the law to their deceased parent.
In the absence of heirs of the first stage, the following are called to inherit second line heirs: full-blooded and half-blooded (that is, having only a common mother or father) brothers and sisters of the testator, grandfather and grandmother both on the father's side and on the mother's side. Children of full and half brothers and sisters of the testator (nephews and nieces of the testator) inherit, as in the case of grandchildren, by right of representation.
As third line heirs, in the absence of heirs of the first two stages, full and half brothers and sisters of the testator's parents (uncles and aunts of the testator) will be called. Cousins and sisters of the testator have the right to inherit only by right of representation. If there are no heirs of the first, second and third stages, the right to inherit by law is obtained by relatives of the testator of the third, fourth and fifth degree of kinship, who are not related to the heirs of the previous stages.
In this case, the degree of relationship is determined by the number of births that separate relatives of one from another. The birth of the testator himself is not included in this number.
Thus, they are called to inherit:
as fourth line heirs
relatives of the third degree of kinship - great-grandfathers and great-grandmothers of the testator;
as fifth line heirs
relatives of the fourth degree of kinship - children of the testator's nephews and nieces (cousins and granddaughters) and siblings of his grandparents (cousin grandparents);
as heirs of the sixth line
relatives of the fifth degree of kinship - children of cousins and granddaughters of the testator (cousin great-grandchildren and great-grandchildren), children of his cousins and sisters (cousins and nieces) and children of his great-grandparents (cousins and aunts).
If there are no successors of previous queues, to inheritance as heirs of the seventh line
stepson, stepdaughter, stepfather and stepmother of the testator are called by law.
Disabled dependents of the testator, who, under a certain set of circumstances, may be called to inherit on an equal footing with the heirs of the first stage, who are not such by virtue of law, stand apart in this system.
In the event that a disabled dependent is a relative and could (in the absence, for example, heirs of the first stage) be called to inherit in the order of 2-7 priority, two conditions would be sufficient simultaneously to exercise his right to inherit as a disabled dependent:
his (heir - disabled dependent) disability on the day of death of the testator;
being dependent on the testator for at least a year before the death of the testator.
At the same time, his right to inherit in this manner is not made by law dependent on cohabitation with the testator.
In another case, when a disabled dependent, being neither the heir of the first nor the heir of the next six stages, can be an heir on an equal footing with the heirs of the line that is called for inheritance, in addition to the two above conditions, it is also necessary that there is a fact of cohabitation with the testator , again at least one year before his death.
In the complete absence of any of the legal heirs, disabled dependents may inherit as eighth heirs.
Parents cannot inherit by law after children in respect of whom they were deprived of parental rights and not restored in these rights at the time of the opening of the inheritance, as well as parents and adult children who maliciously evaded the fulfillment of the duties assigned to them by law to support the testator, if this circumstance is confirmed by the court.
testamentary succession
The Civil Law of the Russian Federation uses the concept of "citizen" to designate a person as a subject of civil rights and obligations. This is not entirely true, since not only citizens of the Russian Federation, but also foreign citizens and stateless persons can be participants in civil legal relations. Therefore, in international law instead of the concept of "citizen" the concept of "natural person" is used, which has a broader content.
Means of individualization of the citizen.
1. Citizen's name. Each person participates in civil legal relations under a certain name and only in relatively rare cases under a pseudonym or anonymously (for example, in copyright). The concept of "name" for most of the peoples of Russia covers the surname-name-patronymic. But in the national customs of some peoples of Russia there may be no patronymic.
A citizen has the right to change his name. But the change of name is not the basis for the termination or change of his rights and obligations acquired under the former name. He is also obliged to take the necessary measures to notify his debtors and creditors of the change of his name.
It is not allowed to acquire rights and obligations under the name of another person.
2. Place of residence is the place where a citizen permanently or predominantly resides.
3. Citizenship- it is sustainable legal connection between a person and the Russian Federation, expressed in the totality of mutual rights and obligations (FZ "On Citizenship").
Purchasing reasons:
By birth
Naturalization (general and simplified procedure)
Restoration of citizenship.
Grounds for termination:
Withdrawal from citizenship
Option.
4. Age. Stands out:
Legal capacity of minors (up to 14 years).
Capable minors between the ages of 14 and 18.
Full capacity.
5 . Family status. For example, in inheritance law.
6. Floor.
7. Health status.
But of paramount importance for the individualization of an individual are legal capacity and legal capacity.
B-22: Legal capacity of natural persons.
It is the ability to have civil rights and bear responsibilities.
Recognized by all citizens of the country. It arises at the moment of a person's birth and stops with his death, and, therefore, legal capacity is inseparable from a person.
Features of legal capacity.
1. The specific content is the ability to have civil rights and bear obligations.
2. Appointment - designed to provide every citizen with a legal opportunity to acquire specific civil rights and obligations.
3. A close relationship of legal capacity with the personality of its bearer, the transfer of legal capacity is not allowed.
It is formed by those property and personal non-property rights and obligations that a citizen may have according to the law. Legal capacity is characterized by inalienability.
Restriction of legal capacity is allowed only in cases and in the manner prescribed by law. Foreign citizens have the same legal capacity as Russian citizens. Some restrictions apply.
The modern legislation of most states recognizes a person as supreme value, and its rights and freedoms are inalienable attributes that must be protected. This fact allows citizens (individuals) to enter into all kinds of public relations. The presence of guarantee factors for the protection of human rights expands the opportunity for citizens to participate in legal regulation. Individuals participate in civil circulation, using certain means fixed at the legislative level and individualizing citizens. In legal science, such means are divided into formal ones, which include, first of all, the name of a citizen and his place of residence, and means that affect the legal personality of a person, such as gender, age, kinship status and properties, and others.
The problem of studying the means of individualization of citizens is relevant, because the use foreign citizens legal capacity on a par with Russian citizens gives rise to conflicts arising on the basis of legislation foreign countries. Collision resolution is an important component to eliminate uncertainties in legal regulation, especially in terms of the means that identify all individuals. Population growth, the use of the same names, the similarity of formal and social signs between people forces us to determine other means that individualize a person in civil circulation, and bring them into single system.
To participate in civil circulation, subjects of law must have a set of qualities that would define them as specific participants legal relations. Such a set of properties should contain only legally significant characteristics that would contribute to the individualization of citizens, fixing their clear characteristics.
The value of individualization of a person is very important for the law as a whole. It is determined by the fact that through the identification of his personality, an individual acquires for himself the rights and fulfills the duties that are communicated to him. The legislator also attaches great importance to the individualization of a person in civil circulation, fixing the goal of “ensuring the protection of the rights and freedoms of a person and a citizen in the processing of his personal data, including the protection of the rights to inviolability privacy, personal and family secrets" in the Federal Law "On Personal Data".
Judicial practice shows that the courts pay more attention to the commercial names of legal entities and the protection of their violated rights, rather than the violated rights of individuals. Rested in Russian legislation the opinion on the allocation of only two means of individualization - the name of a citizen and his place of residence does not allow to properly identify a person in civil circulation, and also, in the event of civil liability, choose individual measures her responsibility. It is necessary to make changes to the legislation of the Russian Federation related to a clear allocation of all criteria for the individualization of individuals. Interestingly, in the countries Romano-Germanic system, including in France and Germany, such a system of means of individualization has not been built either, but if in these countries the main codified act of civil legislation has not changed since the end of the nineteenth century, then in the Russian Federation, with the adoption of the first part of the Civil Code, this should have been provided for.
The name and place of residence are not the only means of individualization of individuals in civil circulation. Moreover, the allocation and use of only these means of individualization is impossible due to a number of reasons that were mentioned earlier. These properties that identify individuals characterize them, first of all, as subjects of law, endowed with subjective rights and able to take on legal obligations. The allocation of other properties that affect the identification of citizens is dictated by the existing legal order, designed to distinguish conscientious subjects of law from unscrupulous ones. The only dissertation of N.Kh. Buzarova "Means of individualization in Russian civil law". It is she who proposes the division of individualization into formal and statutory, which includes social and legal personality. Formal individualization presupposes a purely mechanical selection of a person from among a multitude of people and does not provide legally significant characteristics, however, in some cases, it only indirectly affects individual rights of a citizen subject. Statutory individualization reveals individual characteristics each citizen and reveals him as a full-fledged subject of law.
Formal and social individualization is designed to personify a person in a social environment, which can be expressed in different forms, including legal ones. It is customary to refer to the means of formal individualization the name and place of residence of a citizen, gender and age, as well as appearance. The main means of social individualization are the personal non-property rights of individuals, but not all, but only those that directly individualize a person in society. These include the right to a name, honor, dignity and business reputation the right to an individual appearance and voice. Formal individualization performs a delimiting function that distinguishes the subject of law from other, similar subjects of law, gives them the opportunity to participate in legal relations. The two most important criteria for formal individualization are already indicated in civil law, but it is necessary to supplement the provisions of the articles with other means that identify individuals in civil circulation even more accurately. Social individuation is only partly relevant for enshrining its legislation. It is designed to highlight the subject not with legal point from the point of view, but from the point of view of criteria that are important for the public, therefore, it is not necessary to fix the means of social individualization in the legislation.
Legal subject individualization is designed to further personalize individuals through a series of legal states which entail the expansion or restriction of the legal personality of a person. Such states should include the state of naming or anonymity, the state of age, the state of health, the state of citizenship, the state of kinship or property, the state of gender, the state of bankruptcy, the state of education, the state of a criminal record. These states aim to determine the legally significant characteristics of a person as a subject of law.
Thus, there is a need to amend the national legislation in terms of streamlining all the listed means of individualization and bringing them into a single system, as well as the need to implement a higher quality of personal data protection. Some provisions should be borrowed from other representative states of the Romano-Germanic system. For example, the Federal Republic of Germany, which provides for a whole three-tier system for processing and protecting personal data of citizens.
Bibliography:
- Gorelikhina O.A., Shlinkov A.A. Legal protection personal data in Germany // Issues of Economics and Law. 2012. №3. pp. 322-326.
- Buzarova N.Kh. Means of individualization in Russian civil law. [Text]: dis. for the competition scientist step. cand. legal Sciences (12.00.03) / Nina Khasanovna Buzarova; Kuban State University. - Krasnodar, 2007. - 222 p.
- Federal Law "On Personal Data" dated July 27, 2006 N 152-FZ // SPS "ConsultantPlus".