Disposition of the property of a public institution. Legal regime of property of state and municipal institutions

According to Art. 305 of the Civil Code of the Russian Federation, provided for in Articles 301 - 304 of this Code, also belong to a person, although not being the owner, but owning the property on the right of lifetime inheritable possession, economic management, operational management or for any other reason prescribed by law or by agreement. This person is entitled to the defense of his possession also against the owner.

The rights of an institution to property assigned to it by the owner, as well as to property acquired by the institution, are determined in accordance with Article 296 of this Code (paragraph two, clause 1, article 120 of the Civil Code of the Russian Federation). An institution and a state-owned enterprise, to which property is assigned on the basis of the right of operational management, own, use this property within the limits established by law, in accordance with the goals of their activities, the purpose of this property, and, unless otherwise provided by law, dispose of this property with the consent of the owner of this property. property (clause 1, article 296 of the Civil Code of the Russian Federation).

Based on article 296 Civil Code, an institution and a state-owned enterprise, to which the property is assigned on the basis of the right of operational management, own, use this property within the limits established by law, in accordance with the objectives of their activities, the purpose of this property, and, unless otherwise provided by law, dispose of the property with the consent of the owner of this property.

At the same time, according to paragraph 1 of Article 296 of the Civil Code Russian Federation the institution, to which the property is assigned on the basis of the right of operational management, owns, uses, disposes of this property within the limits established by law, in accordance with the goals of its activities, the tasks of the owner of this property and the purpose of this property. “In cases where the disposal of the relevant property by transferring it for lease is carried out in order to ensure more effective organization the main activity of the institution for which it was created (in particular, servicing its employees and (or) visitors), the rational use of such property, the specified disposal may be carried out by the institution with the consent of the owner. At the same time, the transfer of property for rent with established restrictions cannot lead to the qualification of this property as surplus, unused or used for other purposes” - Definition Supreme Court RF dated September 22, 2014 N 303-ES14-2270 in case N A51-33292/2012.

According to paragraph 2 of Article 120 of the Civil Code of the Russian Federation, an institution may be created by a citizen or a legal entity (private institution). A private institution is fully or partially financed by the owner of its property. A private institution is liable for its obligations with the funds at its disposal. In case of insufficiency of the indicated Money subsidiary liability for the obligations of such an institution shall be borne by the owner of its property. The property of the institution is assigned to it by the owner on the basis of the right of operational management (Article 296 of the Code).

Thus, a private institution is financed by the legal entity that created it, and the latter bears subsidiary liability for the debts of the institution, the ownership of the property of the institution remains with its founder. The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolutions (dated May 24, 2011 N 17020/10, dated May 22, 2012 N 16541/11 and July 16, 2013 N 1567/13) has repeatedly pointed out that the creation and financing of the arbitration court by one of the counterparties under a civil law contract (or a person affiliated with it) with the simultaneous possibility of considering disputes arising from this contract in such arbitration court testify to the violation of the guarantee of the objective impartiality of the court and, as a result, the fairness of the consideration of the dispute in the form of a violation of the equality and autonomy of the will of the disputing parties. In accordance with paragraphs 1, 2 of Article 299 of the Civil Code of the Russian Federation, the right of operational management arises on the basis of an act of the owner on the assignment of property to an institution, as well as as a result of the acquisition of property by an institution under an agreement or other basis. Since the federal law, in particular Articles 296, 298 of the Civil Code of the Russian Federation, which define the rights and obligations of the owner and institution in relation to property under operational management, does not provide for the preservation of the owner’s obligation to maintain the property transferred to operational management, it should be recognized as legitimate that the owner, having transferred the property to the institution on the basis of the right of operational management, imposes on it the obligations for its maintenance.

Article 294. Right of economic management

The state or municipal unitary enterprise, which owns the property on the right of economic management, owns, uses and disposes of this property within the limits determined in accordance with this Code.

Article 295

1. The owner of property under economic management, in accordance with the law, decides on the establishment of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of the enterprise, exercises control over the intended use and safety of the property belonging to the enterprise.

The owner has the right to receive a part of the profit from the use of property under the economic management of the enterprise.

2. An enterprise shall not have the right to sell the immovable property owned by it under the right of economic management, lease it, pledge it, make a contribution to the charter (reserve) capital of business companies and partnerships, or otherwise dispose of this property without the consent of the owner.

The rest of the property belonging to the enterprise, it manages independently, with the exception of cases established by law or other legal acts.

Article 296. Right of operational management

(Article 296 as amended by Federal Law No. 175-FZ of November 3, 2006)

1. An institution and a state-owned enterprise, to which the property is assigned on the basis of the right of operational management, own, use this property within the limits established by law, in accordance with the goals of their activities, the purpose of this property, and, unless otherwise established by law, dispose of this property with the consent of the owner of this property. (as amended by Federal Law No. 83-FZ of May 8, 2010)

2. The owner of the property has the right to seize the excess, unused or not used for its intended purpose, property assigned by him to an institution or a state-owned enterprise or acquired by a state-owned enterprise or institution at the expense of funds allocated to him by the owner for the acquisition of this property. The owner of this property has the right to dispose of the property confiscated from an institution or state-owned enterprise at his own discretion. (as amended by Federal Law No. 83-FZ of May 8, 2010)

Article 297

1. A state-owned enterprise shall have the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property.

A state-owned enterprise independently sells its products, unless otherwise established by law or other legal acts.

2. The procedure for distributing the income of a state-owned enterprise is determined by the owner of its property.

Article 298. Disposition of property of an institution

(as amended by Federal Law No. 83-FZ of May 8, 2010)

1. A private institution shall not have the right to alienate or otherwise dispose of property assigned to it by the owner or acquired by this institution at the expense of funds allocated to it by the owner for the acquisition of such property.

A private institution has the right to carry out income-generating activities only if such a right is provided for in its constituent document, while the income received from such activities and the property acquired at the expense of these incomes shall be at the independent disposal of the private institution.

2. An autonomous institution, without the consent of the owner, is not entitled to dispose of immovable property and especially valuable movable property assigned to it by the owner or acquired by the autonomous institution at the expense of funds allocated to it by the owner for the acquisition of such property. An autonomous institution has the right to dispose of the rest of the property that is under its right of operational management, unless otherwise provided by law.

An autonomous institution has the right to carry out income-generating activities only insofar as it serves the achievement of the goals for which it was created and corresponds to these goals, provided that such activities are indicated in its constituent documents. The income received from such activities and the property acquired at the expense of these incomes shall be placed at the independent disposal of the autonomous institution.

3. A budgetary institution, without the consent of the owner, shall not have the right to dispose of especially valuable movable property assigned to it by the owner or acquired by a budgetary institution at the expense of funds allocated to it by the owner for the acquisition of such property, as well as immovable property. The rest of the property that is under its right of operational management, the budgetary institution has the right to dispose of independently, unless otherwise provided by law.

A budgetary institution has the right to carry out income-generating activities only insofar as it serves the achievement of the goals for which it was created, and corresponding to these goals, provided that such activities are indicated in its constituent documents. The income received from such activities, and the property acquired at the expense of these incomes, shall be placed at independent disposal. budget institution.

4. A treasury institution shall not have the right to alienate or otherwise dispose of property without the consent of the owner of the property.

A government institution may carry out income-generating activities in accordance with its founding documents. Income received from the said activities shall be transferred to the relevant budget of the budgetary system of the Russian Federation.

Article 299. Acquisition and termination of the right of economic management and the right of operational management

1. The right of economic management or the right of operational management of property, in respect of which the owner has decided to assign to a unitary enterprise or institution, arises from this enterprise or institution from the moment the property is transferred, unless otherwise provided by law and other legal acts or by the decision of the owner.

2. The fruits, products and income from the use of property that is under the economic jurisdiction or operational management of a unitary enterprise or institution, as well as property acquired by a unitary enterprise or institution under an agreement or other grounds, shall come under the economic jurisdiction or operational management of an enterprise or institution in the manner established by this Code, other laws and other legal acts for the acquisition of ownership. (as amended by Federal Law No. 83-FZ of May 8, 2010)

3. The right of economic management and the right of operational management of property shall be terminated on the grounds and in the manner provided for by this Code, other laws and other legal acts for the termination of the right of ownership, as well as in cases of lawful seizure of property from an enterprise or institution by decision of the owner.

Article 300

1. When the right of ownership of a state or municipal enterprise as a property complex is transferred to another owner of state or municipal property, such an enterprise retains the right of economic management or the right of operational management of the property belonging to it.

2. When the ownership of an institution is transferred to another person, this institution retains the right of operational management of the property belonging to it.

New edition Art. 298 of the Civil Code of the Russian Federation

A budgetary institution has the right to carry out income-generating activities only insofar as it serves the achievement of the goals for which it was created, and corresponding to these goals, provided that such activities are indicated in its constituent documents. The income received from such activities and the property acquired at the expense of these incomes shall be placed at the independent disposal of a budgetary institution.

4. A treasury institution shall not have the right to alienate or otherwise dispose of property without the consent of the owner of the property.

A government institution may carry out income-generating activities in accordance with its constituent documents. Income received from the said activities shall be transferred to the relevant budget of the budgetary system of the Russian Federation.

Commentary on Art. 298 of the Civil Code of the Russian Federation

The legal nature of the institution's right to income. Many of the modern researchers (Yu.K. Tolstoy, V.A. Pletnev and others) believe that the right of an institution to income is a special property right (but in any case not a property right). At the same time, E.A. Sukhanov is of the opinion that given right institutions is a kind of real rights, directly named in paragraph 1 of Art. 216 of the Civil Code - this is either a "narrowed" right of economic management, or an "extended" right of operational management.

Another commentary on Art. 298 of the Civil Code of the Russian Federation

1. As part of the property available to the institution on the right of operational management, property acquired at the expense of funds allocated by the owner according to the estimate, and property received at the expense of funds from independent activity institutions.

Property received from the owner or acquired at the expense of funds received from him cannot be the subject of alienation or other transactions for the disposal of property, even if the owner has given his consent to this.

If the owner considers that the property is not used or is not used for its intended purpose, he has the right to withdraw it and dispose of it at his own discretion. But the owner cannot sanction the disposal of this property by the institution, as well as prescribe to the institution a certain procedure for the disposal of property.

2. The law on education provides for the right educational institution act as a lessor in relation to the property assigned to him.

3. Property acquired at the expense of funds from the independent activities of the institution, since such activity is permitted by the constituent documents, shall be placed at the independent disposal of the institution.

Judicial practice recognizes that the property base of an institution's liability for its obligations, regardless of whether these obligations arose on grounds related to its main activity (for example, educational), or in connection with additional activity income-generating is all the property of the institution, including the income received. And only in the absence of funds does the founder's subsidiary liability arise in accordance with Art. 120 GK.

Boldyrev Vladimir Anatolyevich, Professor of the Department of Civil Law Disciplines of the Omsk Academy of the Ministry of Internal Affairs of Russia, Doctor of Law.

The main points of view are given regarding the place of independent disposal of the property of an institution in the system subjective rights. It is concluded that independent disposal of property is carried out within the framework of the subjective right of operational management. The basis this opinion an interpretation of the norm of the law on the acquisition of the right of operational management, as well as a practical argument - the need to register rights to real estate without complicating the procedure by checking the sources of income for which the relevant property is acquired.

Key words: institution, independent disposal, operational management, economic management, property law, property.

Independent disposition of property of the institution

Boldy "rev Vladimir Anatol"evich, professor, Chair of Civil-Law Disciplines, Omsk Academy of the Ministry of Internal Affairs of Russian, doctor of juridical sciences.

Provides the basic points of view regarding the place of self-disposal of the property of institutions in the system of subjective rights. It is concluded that the independent disposal of property is conducted in the framework of the subjective right of operational management. Based on this conclusion, it is the interpretation of norms of the law on the acquisition of the right of operational management, as well as the argument of a practical nature, the necessity of registration of rights to immovable property without complicating the procedure verification of the sources of income that is purchased for the relevant property.

Key words: institution, independent disposal, operational management, economic management, property law, property.

Property owned by an institution and acquired with funds from an income-generating activity is subject to a special legal regime that excludes the possibility for the owner to withdraw it and does not in fact limit the ability to dispose of it independently.

This legal category arose in the conditions of domestic reality at the peak of the development of the doctrine of the mechanism of the free market. Its appearance was the result of the need to find a reasonable compromise between the existence of the public sector of the economy, serving public interest and giving work to the majority of the population, and the need to regulate relations on the basis of market mechanisms, involving the freedom and promptness of the adoption economic decisions, including decisions on the disposal of the property of an economic entity.

The legislator speaks of the independent disposal of "funds" (undoubtedly, money) received from income-generating activities, characterizing the legal status of private, budgetary and autonomous institutions (Article 298 of the Civil Code of the Russian Federation). Income received by a state institution from income-generating activities goes to the appropriate budget of the budget system of the Russian Federation (clause 4 of article 298 of the Civil Code of the Russian Federation), therefore, it is impossible to talk about independent management of them at all. Regarding the funds received by a budgetary or autonomous institution from income-generating activities, it should be noted that they are more freely disposed than the funds received from the owner, in any case, the legislator does not set strict boundaries in the areas of use of such funds. However, federal law dated July 18, 2011 N 223-FZ "On the procurement of goods, works, services by certain types legal entities" <1>, and for budgetary institutions also by the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to ensure public and municipal needs" <2>, a number of procedural features of the conclusion of the relevant agreements have been established.

<1>SZ RF. 2011. N 30 (part 1). Art. 4571.
<2>SZ RF. 2013. N 14. Art. 1652.

The disposal of other (except for monetary funds) property by state and municipal institutions, when it is acquired from an income-generating activity, is subject to different rules for budgetary and autonomous institutions. Analysis of the norms of Art. 298 of the Civil Code of the Russian Federation on the disposal of property with the consent of the owner gives reason to assert that autonomous institutions dispose of any property acquired at the expense of funds from income-generating activities independently, and budgetary ones, if we are talking about real estate acquired at the expense of income from permitted activities - only with the consent of the owner. There is closeness of the legal status of the private and autonomous institutions who are not constrained in the independent disposal of property acquired at the expense of funds from income-generating activities (clause 1 of article 298 of the Civil Code of the Russian Federation).

Is it possible to speak of the right of independent disposal as the right of operational management with the most complete content of powers, or is it some kind of separate, independent "right of independent disposal"? In practical terms, the question can be posed as follows: can the body registering the right to real estate write in the register and certificate of right: "type of right: right of independent disposal"?

Arbitration justice does not provide grounds for considering the right of independent disposal as a separate title: for example, the Federal Arbitration Court of the West Siberian District concluded that Art. 298 of the Civil Code of the Russian Federation, that its "norm does not provide for a new type of property right - the right of independent disposal, but only allows you to acquire property and record it on a separate balance sheet"<3>. What is for sure - if the property comes "at the independent disposal" of the institution, it is unacceptable to talk about the emergence of ownership.

<3>Resolution of the Federal Arbitration Court of the West Siberian District of March 14, 2007 N F04-1000 / 2007 (32022-A70-24) in the case of N A70-6931 / 8-2006 [Electr. resource] // ATP "ConsultantPlus".

The Plenum of the Supreme Arbitration Court of the Russian Federation in the act of interpreting the law uses the category "the right to independently dispose of property", while specifically emphasizing that we are not talking about the right of ownership<4>. The question of whether an independent disposal is a possessory title, or is it a kind of operational management, remained without a direct answer from the body competent to provide clarifications on issues of arbitration law enforcement. Apparently, in this case one can speak of "qualified silence" of the interpreter of the law.

<4>Clause 2 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2006 N 21 "On some issues of the practice of considering arbitration courts disputes involving government and municipal institutions related to the application of Article 120 of the Civil Code of the Russian Federation" // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006. N 8.

As we see it, the Plenum of the Supreme Arbitration Court of the Russian Federation proceeded from the understanding of the right to independently dispose of the income (property) of an institution as a type of operational management right. In para. 4, paragraph 2 of the Decree of June 22, 2006 N 21 "On some issues of the practice of consideration by arbitration courts of disputes involving state and municipal institutions related to the application of Article 120 of the Civil Code of the Russian Federation"<5>they were told that the establishment of norms budget legislation a special (on the personal accounts of the treasury) procedure for accounting for income received from income-generating activities does not change the scope of the rights of the institution regarding these incomes and the property acquired on them, fixed by the Civil Code of the Russian Federation.

<5>Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006. No. 8.

In the legal literature, there are different approaches to the problem of the place of independent disposal in the system of subjective rights.

Some experts, for example Z.A. Akhmetyanova<6>, M.V. Tokmovtseva<7>, V. Tsarev<8>, L.V. Shchennikova<9>, they talk about a special title - "the right of independent disposal." I.V. Ershov<10>and Yu.G. Leskova<11>they even propose to title Chapter 19 of the Civil Code of the Russian Federation "The right of economic management, the right of operational management, the right of independent disposal." The independent nature of this right is indicated by N.N. Averchenko, calling it "the right of an institution to independently dispose of income received from commercial activities not prohibited by the constituent documents, as well as property acquired with these incomes"<12>.

<6>
<7>
<8>
<9>
<10>
<11>
<12>Civil Law: Textbook: In 3 volumes / Ed. A.P. Sergeyev. M.: TK Velby, 2008. T. 1. S. 603.

At the same time, V. Tsarev draws attention to a practical problem arising from the attitude to independent disposal as separate species subjective rights: "In the case when a real estate object comes into the independent disposal of an institution, this right is subject to state registration as a corresponding right to immovable property. However, to date, neither the Civil Code of the Russian Federation (clause 1, article 131), nor other legislative acts do not contain an appropriate indication of the need for state registration of the right to independently dispose of the institution's real estate"<13>.

<13>Tsarev V. Decree. op. S. 112.

K.P. Kryazhevsky identifies the right of independent disposal, which belongs to institutions, with the subjective right unitary enterprise- economic management<14>.

<14>Kryazhevsky K.P. The right of operational management and the right of economic management in Russian civil law: Dis. ... cand. legal Sciences. M., 2003. S. 8.

Analyzing different points of view on the named legal phenomenon, B.M. Gongalo notes the lack of clarity in the wording of Art. 298 of the Civil Code of the Russian Federation on the disposal of property of an institution<15>. E.A. Sukhanov believes that "such property belongs to the institution on an independent property right, which is not the right of operational management"<16>, while the author does not give any name to such a right. A close position is taken by V.V. Rovny, and he points out: "... a certain right to independently dispose of income from one's own profitable (entrepreneurial) ... is neither a property right, nor a right of economic management, nor a right of operational management"<17>.

ConsultantPlus: note.

<15>
<16>
<17>Civil Law: Textbook: In 3 volumes / Ed. A.P. Sergeyev. T. 1. S. 195 - 196.

D.V. Petrov notes: "The right to independently dispose of certain property of an institution is a power within the framework of the right of operational management"<18>. E.N. Semenov, believing that authority independent disposal is carried out within the framework of the right of operational management, proposes to take into account the relevant property on a single balance sheet, but with the allocation of accounts<19>. AND I. Sugak believes that "the right to independently dispose of income from entrepreneurial activity institutions is a variant of the right of operational management"<20>. An essentially similar position is taken by R.A. Yunusov<21>.

<18>
<19>
<20>
<21>Yunusov R.A. The right to operational management of the property of legal entities in modern conditions: Dis. ... cand. legal Sciences. M., 2009. S. 10.

D.V. Saraev proposes to exclude the mention of the right of independent disposal from the legislation in general and extend the regime of operational management to the relevant property<22>. However, it should be noted that even today the legislator speaks of "independent disposal" of property, and not of the "right of independent disposal."

<22>Saraev D.V. The right to operational management of the property of public institutions - legal entities (according to civil law Russian Federation): Abstract of the thesis. dis. ... cand. legal Sciences. M., 2004. S. 8.

Yu.N. Andreev considers it necessary to confine himself to a negative conclusion, according to which "it would be doubtful to consider a state (municipal) institution as the owner of property received as a result of activities prescribed in clause 3 of article 298 of the Civil Code"<23>, as well as an indication that "the legislator has not yet found the boundaries of harmonious coexistence of the right to operational management and the right to independently dispose of property"<24>. However, one cannot but agree with the author, who “one of the reasons for institutions to have the right to independently dispose of income and property under paragraph 2 of Article 298 of the Civil Code is seen in the unsatisfactory financing by the founder (public legal entity) of the targeted (public) activities of the institution he created "<25>.

<23>
<24>Andreev Yu.N. Decree. op. S. 193.
<25>There. S. 192.

The influence here is the following: the head of the underfunded institution receives (in the form of an incentive for the rational use of property and other "commercial potential" of the institution) expansion of competence for the disposal of part of the property institutions.

The dependence is as follows: the practice of underfunding institutions by the owners is the reason for allowing the opportunity to carry out income-generating activities, and the independent disposal of property serves as an incentive to economic efficiency and an increase in the number of cases of realization of the right to engage in income-generating activities.

If we talk about a radical innovation of codified civil legislation and, at the same time, proceed from the need to preserve an independent order as such (which is far from indisputable), it can hardly be assumed that "independent order" can become the name of a title. The explanation for this is simple: the order is one of the powers in the composition of the right of ownership. It is clear that as part of the ownership right it is "independent".

In accordance with paragraph 2 of Art. 299 of the Civil Code of the Russian Federation, the fruits, products and income from the use of property under operational management, as well as property received by the institution under an agreement or other grounds, are transferred to the operational management of the institution in the manner established by the Civil Code of the Russian Federation, other laws and other legal acts for the acquisition of the right property. Consequently, the name of the right that arose for income is "the right of operational management."

Of course then property right, which arises from private, autonomous and budgetary institutions for things acquired as a result of income-generating activities, differs in its content from the right of operational management of property received from the owner and acquired at the expense of financing. Another thing is that it is not necessary to come up with a name for such a right, overloading normative legal acts already full of terms. This right should also be called the right of operational management. Indeed, even the right of ownership can be limited by someone's real or obligations, and may be generally "naked", for example, when property is seized with its seizure from the owner.

Separate accounting of one or another part of the property of a legal entity, including property acquired by an institution from income-generating activities, does not require parallel terminological separation when determining this part of the property. Moreover, such isolation is superfluous for evidentiary and procedural reasons.

If we assume that there is a separate "right to independently dispose of property" of the institution, then it should be recognized that, in relation to real estate, it will have to be registered by making an appropriate entry in the Unified state register rights to real estate and transactions with it. The registrant would then have to assess financial activities the organization that submitted documents for the purpose of registering the right to determine the sources at the expense of which this property was acquired. Such the financial analysis- the procedure is not only complicated, but also goes beyond the functions of the registration authority. This circumstance is a strong practical argument in favor of considering the right to independently dispose of the institution's property as the right of operational management, with a theoretical remark: "a special kind."

LITERATURE

Andreev Yu.N. State involvement in civil law relations. St. Petersburg: legal center"Press", 2005. S. 194.
Akhmetyanova Z.A. Real right: Textbook. M.: Statut, 2011. S. 211.

ConsultantPlus: note.

Monograph B.M. Gongalo "The doctrine of securing obligations. Issues of theory and practice" is included in the information bank according to the publication - Statute, 2004.

Gongalo B.M. The doctrine of securing obligations. M.: Statut, 2002. S. 142.
Civil Law: Textbook: In 3 volumes / Ed. A.P. Sergeyev. M.: TK Velby, 2008. T. 1. S. 603.
Ershova I.V. Legal regime state property in economic circulation: theoretical basis and ways of improvement: Dis. ... Dr. jurid. Sciences. M., 2001. S. 12.
Kryazhevsky K.P. The right of operational management and the right of economic management under Russian civil law: Dis. ... cand. legal Sciences. M., 2003. S. 8.
Leskova Yu.G. Legal status institutions for Russian legislation: Abstract. dis. ... cand. legal Sciences. Belgorod, 2007, p. 6.
Petrov D.V. The right of economic management and the right of operational management in the system of property rights: Dis. ... cand. legal Sciences. S. 13.
Saraev D.V. The right of operational management of the property of public institutions - legal entities (according to the civil legislation of the Russian Federation): Abstract of the thesis. dis. ... cand. legal Sciences. M., 2004. S. 8.
Semenova E.N. The right of operational management in a market economy: Dis. ... cand. legal Sciences. M., 2004. S. 14 - 15.
Sugak A.Ya. The legal regime of property assigned to the right of operational management and the right of economic management for legal entities: on the example of Moscow: Dis. ... cand. legal Sciences. M., 2007. S. 11.
Sukhanov E.A. On the responsibility of the state civil obligations// Bulletin of the Supreme Arbitration Court of the Russian Federation. 2001. N 3. S. 123.
Tokmovtseva M.V. Higher educational institution as a subject of relations in the field of entrepreneurship: Abstract of the thesis. dis. ... cand. legal Sciences. M., 2000. S. 22.
Tsarev V. The right of independent disposal of income and property of institutions // Economy and law. 2009. N 7. S. 111.
Shchennikova L.V. Property law: Proc. allowance. M.: Lawyer, 2006. S. 114.
Yunusov R.A. The right of operational management of the property of legal entities in modern conditions: Dis. ... cand. legal Sciences. M., 2009. S. 10.

Let's review and analyze legal conditions determining and influencing the solution of such issues as ownership of the property of budgetary institutions, use of property by the institution, seizure of property by the founder, features of use and disposal land plot, write-off of property, limits of independence of the institution in the disposal of property, sale and lease of property.

OWNERSHIP RIGHT TO THE PROPERTY OF A BUDGET INSTITUTION.

Two fundamental conditions should be remembered: in accordance with federal legislation, the owner of any property of a budgetary institution is its founder (the Russian Federation, a constituent entity of the Russian Federation or a municipality) and any property of a budgetary institution is assigned to it by the owner of this property on the basis of the right of operational management.

Therefore, it is necessary to be aware that there can be no division of the property of a budget institution into state (municipal) and some kind of “own, non-state (non-municipal)”, just as a budget institution cannot have any property that is not assigned to him on the right of operational management. This circumstance determines the answers to many questions that institutions have about how they can dispose of their property.

USE OF PROPERTY OF A BUDGET INSTITUTION.

According to civil law, a budgetary institution can use any property only in accordance with the goals of its activities (part 1 of article 296 of the Civil Code of the Russian Federation).

The objectives of the activity (creation) of a budgetary institution are the performance of work and (or) the provision of services to ensure the implementation of the powers of the relevant bodies provided for by the legislation of the Russian Federation. state power(government bodies) or bodies local government in the fields of science, education, healthcare, culture, social protection, employment, physical education and sports and in other areas (Part 1, Article 9.2 of the Law on NGOs). These powers are established by federal law.

Thus, any use by an institution of its property (and, again, any property, regardless of the source of its occurrence) will be considered unlawful if this use is not carried out for the sake of exercising one or another established authority of the founder of a budgetary institution (of the Russian Federation, a constituent entity of the Russian Federation, municipality). For example, if the premises of the catering unit and the kitchen equipment of the state boarding house for the elderly and disabled of the subject of the Russian Federation will be used by the institution for the manufacture of semi-finished food products for sale to the population, then such use of property cannot be correlated with any of the currently established powers of the state authorities of the subject Russian Federation (subjects of the Russian Federation do not have the authority to organize on the territory of the region retail foodstuffs for the population).

WITHDRAWAL OF PROPERTY FROM A BUDGET INSTITUTION.

The owner of the property has the right to withdraw from the budgetary institution the surplus, unused or not used for its intended purpose, the property assigned to the institution or acquired by the institution at the expense of funds allocated to it by the owner for the acquisition of this property (part 2 of article 296 of the Civil Code of the Russian Federation).

At first glance, we are talking about property that a budgetary institution acquired at the expense of funds received from the provision of paid services or performing paid work. But this is not the case, since any property of an institution belongs to this owner (Russian Federation, constituent entity of the Russian Federation, municipality) and is assigned to the institution on the basis of the right of operational management (see above) - it actually also refers to property that can be withdrawn from the institution by its founder (the owner of the property) if he considers that this property is redundant for the institution, is not used or is used for other purposes (for example, not within the framework of the founder's powers).

The procedure for the seizure of property is established in the regulatory legal acts regulating the management and disposal of property owned public law education(Russian Federation, subject of the Russian Federation, municipality).

For example, in Kirov region the decision to seize property assigned to regional state institutions on the right of operational management is entrusted to the regional management body state property. This decision should be made taking into account the opinion of the relevant authority executive power industry competence ( government agency performing the functions and powers of the founder of a budgetary institution). But it is noteworthy that no more rules have been established here and references to any other by-law normative legal acts are not given. In general, quite often there are situations when the rules are very concise - for example, in Leningrad region they are limited only to the fact that the decision on such a withdrawal is made by the regional government.

But the rules can be spelled out in more detail. For example, in the city of Angarsk (Irkutsk region), where the decision is also made by the relevant body of the city administration (Committee for municipal property Administration of the Angarsk City District), the rules for the seizure of property are spelled out in relatively detail and are as follows:

1. Excess, unused or misused property shall be withdrawn from the operational management of a municipal institution by order of the committee from the moment an application is received from the institution or from the moment the property is unused or misused.

2. The seized property must be transferred by the institution and accepted by the committee on the act of acceptance and transfer. This property, after the termination of the right of operational management to it, enters the composition of the municipal treasury.

3. Termination of the right of operational management of an institution to real estate is subject to state registration.

4. Payment of expenses for the preparation of documents for state registration, payment of the state duty for registration, as well as submission of documents to the relevant body are carried out by the institution.

5. The institution is obliged to submit to the committee a copy of the document issued by the registering authority and confirming the termination of the right of operational management of real estate, no later than one month from the date of signing the act of acceptance and transfer real estate.

In Khabarovsk, when excess, unused or unused property is identified, a certain period is given to eliminate the problem - until a decision is made to seize property from the institution. Department municipal property no later than 10 days from the date of discovery of such property sends to the industry structural subdivision the city administration and the institution the requirement to take measures to eliminate violations. The demand is subject to consideration within 10 days from the date of its receipt, while the decision to seize the property is made by the department and executed by its order no later than one month from the date of detection of these violations if the institution fails to eliminate these violations.

But in the Temryuk district of the Krasnodar Territory, the procedure for confiscating property from municipal institutions resembles the procedure of strict investigative actions and consists of the following steps:

1. Identification of surplus, unused or misused property assigned to the institution is carried out in the process of carrying out by the administration of the municipality of the relevant control measures.

2. In the event that the named property is discovered, the following information shall be indicated in the act drawn up at the end of the inspection:

compliance of the actual presence of objects and their characteristics with the accounting data of the register of municipal property of the municipality and accounting data;
type of property found specifications and individualizing features (area, number of floors, volume, power, numbers of power units and assemblies, inventory number, etc.);
the period of non-use or misuse of the property by the institution (indicating the method of use);
expenses of the institution related to the non-use or misuse of property;
reasons for non-use or misuse of property by the institution;
proposals to improve the efficiency of property use;
the period proposed for the elimination of identified violations.

3. In the course of control measures, photography and video filming of property is allowed.

4. The head of the institution or authorized by him executive is obliged to be present during the control measures and drawing up the act, as well as to give explanations about the reasons for non-use or misuse of property.

5. In case of non-acceptance by the institution in set time measures to eliminate the identified violations, the administration of the municipality prepares proposals on appropriate measures of influence (termination employment contract with the head, reorganization of the legal entity, sending materials to law enforcement and etc.).

6. The decision to withdraw property from the operational management of the institution is made by the head of the municipality in the form of a resolution, which indicates the reasons for the withdrawal of property, and also determines the types of its further use.

7. It is not allowed to withdraw from the institution the property assigned to it, if this leads or may lead to the impossibility of the institution to carry out its statutory functions (management, socio-cultural, etc.).

WHAT PROPERTY IS CONSIDERED EXCESSIVE, UNUSED, OR MISUSED?

Separate consideration deserves the question of what kind of property in these regulatory legal acts is considered surplus, unused or misused, although in general such definitions can be found infrequently (as a rule, they remain unspecified).

For example, in the Novosibirsk region, the following definitions are used:

surplus property - fixed on the right of operational management or acquired at the expense of funds allocated by the owner for the acquisition of such property, in addition to the property without which the institution cannot carry out its statutory activities;
unused property - fixed on the right of operational management or acquired at the expense of funds allocated by the owner for the acquisition of such property, and not involved in the statutory activities of the institution;
misused property - fixed on the right of operational management or acquired at the expense of funds allocated by the owner for the acquisition of such property, and used not in accordance with the statutory activities of the institution.

Please note that in this case, everything corresponds to the statutory activities of the institution. At the same time, in practice, situations where the charters of budgetary institutions, in violation of federal law activities are prescribed that do not correspond to the goals of the activities of institutions (the established powers of the founders) - not such a rarity. Therefore, if we focus only on the charter, then a situation may arise when the institution uses the property not in accordance with the specified purposes, but such property will not be considered used for other purposes if the named activity fell into the charter of the institution “by negligence”.

DISPOSAL OF THE PROPERTY OF THE INSTITUTION WITHOUT THE CONSENT OF THE OWNER.

We also note that sometimes the basis for the seizure of property from an institution may be established fact independent disposal of property by the institution in cases where, in accordance with the legislation, the institution must first obtain the consent of the owner of the property (founder) for this. For example, this ground, among others, was established in the city of Kirovsk (Murmansk region), and the implementation of the seizure is defined here not as the right of the owner of the property, but as his duty.

WITHDRAWAL OF PROPERTY ON THE INITIATIVE OF INSTITUTIONS.

At the same time, confiscation of surplus and unused property can take place on the goodwill and even on the initiative of the institutions themselves. For example, if unwanted property is difficult to profitably rent out, then even when the founder covers the costs of maintaining it, administrative care for its maintenance can also be burdensome.

The procedure for this withdrawal may also be established in the relevant regulatory legal acts. For example, in the Krasnoyarsk Territory, it is as follows:

1. An institution interested in seizing the property assigned to it shall submit to the regional state property management agency an appropriate application, which, among other things, must contain:

list of immovable objects (with the exception of land plots) and (or) movable property subject to seizure with an indication of their characteristics (type, purpose, technical characteristics, book value, for real estate - location);
reasons for the seizure of property (is redundant, not used, used for other purposes);
technical condition property;
proposal for further use of the property.

2. A number of documents are attached to the application (including the consent of the founder to the withdrawal).

3. Within one month from the date of receipt of the application, the agency makes one of the decisions: to seize property, refuse to seize property, finalize the application and (or) the documents attached to it.

4. The decision to confiscate property is issued in the form of an agency order. Within three days from the date of issue of the order, its certified copy is sent to the institution and the founder.

5. Other decisions of the agency are drawn up in the form of a letter, which is sent to the institution within three days from the date of signing.

6. Grounds for refusal to seize property:

seizure of property will deprive the institution of the opportunity to carry out its statutory activities;
unsatisfactory technical condition of the property;
identification of violations of the intended use and preservation of property that require their elimination by the institution;
the absence of an application from a regional state institution or a unitary enterprise to provide them with the right of economic management or operational management of property subject to seizure, if the seizure of property is proposed for subsequent provision to another regional state institution or unitary enterprise.

* * *

Issues related to the disposal of property by a budgetary institution occupy an important place in the practice of these institutions. After all, property, on the one hand, can be a source of additional income for an institution, and on the other, a burdensome item of expenditure. Also, the maintenance of property and its management imposes a serious responsibility on the heads of institutions. In addition, the legislative norms relating to property issues are notable for noticeable contradictions.

In the next issue of the magazine "Head budget organization” – continuation of the article.

Head of a budget organization, No. 2, 2017