Civil law real estate. Civil regime of real estate Categories of real estate in civil law
The work is devoted to real estate and real estate in Russian civil law. The purpose of the study is to consider the concept of real estate and real estate in Russian civil law.
Real estate is one of the central categories of civil law, business, market. At the same time, as is rightly noted in modern legal literature: “real estate is a legislative concept, born by law, which is changed by it”.
The legal significance of dividing things into movable and immovable is associated with the establishment of a different legal regime for immovable and movable things, respectively, according to the following basic criteria:
Firstly, the alienation and acquisition of immovables is carried out exclusively in the publicity mode associated with the need for state registration of transactions with immovables (articles 164, 223 of the Civil Code of the Russian Federation), available for review by third parties. State registration of transactions with movable things is carried out only in cases specially specified in the law.
Secondly, there is a different procedure for acquiring ownership of immovable and movable ownerless things (Article 225 of the Civil Code of the Russian Federation) and things that the owner has refused (Article 226 of the Civil Code of the Russian Federation).
Thirdly, a mortgage can only be set in respect of immovable things (Article 338 of the Civil Code of the Russian Federation).
Fourthly, the inheritance of immovable things and their legal regime are determined by the rules of law in force at the place of their location, movable things (upon inheritance) - by the rules of law applicable at the last permanent residence of the heir.
Fifthly, disputes on the right of ownership and other property rights to immovable things are considered at the location of the immovable things (Article 30 of the Civil Procedure Code of the Russian Federation), disputes on similar rights to movable things - at the location of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation ), and in the cases specified in the law, in a place determined by the choice of the plaintiff (Article 29 of the Code of Civil Procedure of the Russian Federation).
Speaking about the special legal regime of real estate (real estate), in the legal literature, the following signs of real estate are called:
This is a thing, an object of the material world. In the literature, this feature is also called as "physical tangibility"; in pre-revolutionary legal literature as “the very property of immovable property - you cannot hide it like movable property”. From this attribute of real estate one can also single out such as: “immovable property is more important than movable”, with greater value, this “property having dominance over the movable”, “correlated with movable as the main thing”.
Individually defined property;
Irreplaceable property;
Possessing a strong connection with the land, movement, which without disproportionate damage to its purpose is impossible, or referred to as such legislative act.
The following related features are distinguished:
repeated use in the production process and other purposes; irreplaceability; controllability;
detailed regulation of real estate transactions by state authorities.
Immovable things - material, physically tangible, individual and irreplaceable objects of natural origin or the results of human labor, possessing the immanent property of a strong connection with the earth, as well as things movable by their natural properties - aircraft, sea vessels, inland navigation vessels, space objects subject to state registration and having the economic form of the goods and therefore being the objects of civil turnover.
According to Clause 1, Article 130 of the Civil Code of the Russian Federation, immovable property (real estate, real estate) includes land plots, subsoil plots and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including buildings , constructions, construction in progress. Immovables also include aircraft and sea vessels, inland navigation vessels, space objects subject to state registration. The law may also classify other property as immovable property.
Things immovable by their nature are divided into two categories:
a) land plots, subsoil plots, i.e. objects that make up a single whole with land;
b) objects firmly connected with the land, the movement of which without disproportionate damage to their purpose is impossible, such as forests, perennial plantings, buildings, structures. Types of real estate:
The legal classification of real estate, as already noted, is given by the legislator in paragraph 1 of article 130 of the Civil Code of the Russian Federation, where all real estate is divided into two main types:
Real estate by nature,
Real estate, named as such by force of law.
Things considered immovable due to nature include land, buildings and structures, residential premises.
Things considered immovable by virtue of the law include aircraft and ships, inland navigation vessels, space objects (aircraft made and launched into outer space by humans).
Classifications of real estate for various reasons are possible. So, by ownership, immovable things are divided into:
1) private, that is, owned by citizens (individuals) or owned by legal entities;
2) public law, that is, owned by public law entities. In turn, public law property includes:
Objects in federal ownership;
Objects owned by the Federation;
Municipal property
Mixed ownership, that is, jointly owned by various subjects of civil law - private, public law.
Movable things that are classified as real estate by law (aircraft and ships, inland navigation vessels, space objects). As already noted, things considered immovable by virtue of the law include aircraft and sea vessels, inland navigation vessels, space objects (aircraft made and launched into outer space by humans). The list given in paragraph 2 of article 130 of the Civil Code of the Russian Federation is not exhaustive. Other objects may be classified as such immovable things by law.
With this wording, the grounds for asserting that real estate is a “not actual, but legal” phenomenon will disappear, since the only criterion for classifying properties as real estate will remain a solid connection with the land. As for objects that do not meet this criterion, but require a legal regime similar to the real estate regime, they will be equated with real estate in terms of this legal regime, but they will not be considered real estate, which will fully correspond to the actual state of affairs.
In order to avoid violation of the unity of the criterion for determining real estate, it is necessary to maintain a purely objective approach to this concept, rather than looking for subjective criteria for its definition. The insufficient concreteness of the existing definition can be eliminated only by establishing additional features characterizing the connection of the object with the ground. These attributes may be in the field of technical disciplines related to architecture and construction. Only here can concepts and indicators be developed, which in each case will provide an objective solution to the issue of classifying a particular property as real estate.
The division of things into movable and immovable was well known to Roman law. Real estate in Roman law was considered not only land (praedia, fundi) and the bowels of the earth, but also everything that was created by other people's labor on the land of the owner. It was recognized as a natural or property part of the surface of the earth (res soli). Real estate included, in particular, buildings, crops, plantings. Items related to the ground or fundamentally bonded to its surface were considered its constituent parts and obeyed the superficies solo cedit rule (done above the surface follows the surface). Therefore, it was not allowed to establish a separate property right to the house and, accordingly, to the land plot. The airspace above the site was also considered as part of the surface. Vitryansky V.V. The contract of sale and its individual types / V.V. Vitryansky.-M.: Statute, 2001.-284 p. But, nevertheless, in general, Roman law, as I.A. noted Pokrovsky dealt “with a single concept of property right, which encompasses the entirety of freedom of disposal. The difference between movables and real estate is of the smallest meaning in Roman law (different periods of acquisitive prescription and some others), both the content of the right of ownership and the form of property circulation are determined in it for both categories of things in exactly the same way: a huge estate can change hands as formless as the most insignificant trinket ” . Pokrovsky I.A. The main problems of civil law. M., 1998, p. 195.
In relation to real estate, you can operate with such a concept as the "legal regime". As for the legal regime of real estate, already in the laws of the XII tables (V century BC) there were separate elements of a special approach that differed from the approach to the legal regime of movable things: for the acquisition of land by ownership, a period of time was required, in twice the same period for movables. In the era of the principate (27 BC - 193 AD), special rules appeared aimed at ensuring the publicity of the relevant transactions.
Speaking of the "legal regime", the content of this term should be determined. So, according to Alekseev S.S. the legal regime is defined as “the final legal status of the object, which is a complex result of the activities of all authorized persons (individuals, legal entities, the state) in its use. This is, as it were, part of the rule of law, a state of orderliness of public relations at a specific object. ” When interpreting such a science-like concept, it becomes almost impossible to identify the true nature of the legal regime and the legal regime of real estate in particular. It seems that the legal regime is always a system of certain legal norms that reflect the specifics of a particular object of law. The legal regime of real estate is a set of peremptory legal norms containing special rules reflecting the specifics of the participation of real estate in property and liability relationships. This specificity lies in the presence of a number of legislatively established restrictions, prohibitions and procedures. Grishaev S.P. Features of the legal regime of real estate / S.P. Grishaev // Civilist.-2007.-No3.-P.27. The special legal regime of immovable property is enshrined in various legislative acts forming a certain system. In addition to the general rules established in the Civil Code, which apply to all types of real estate, special rules established in other legal acts can be distinguished that apply only to certain types of real estate. Among these, one can distinguish codes (Land Code, Water Code), as well as the Law on State Registration of Rights to Real Estate and Transactions therewith, etc.
According to Art. 130 GK all real estate objects can be divided into three groups:
- 1. Real estate objects that are immovable in nature (land, subsoil plots, isolated water bodies).
- 2. Objects that are firmly connected with the earth., And their movement entails disproportionate damage to their purpose (buildings, structures, etc.)
- 3. Objects, which by their physical nature are movable, but the legislator classified them as real estate.
A special right regime is set separately for both land and real estate located on it. In a classic property turnover, the main thing is always the land (land), and the property is the objects located on it, including real estate (which, when disposed of as a general rule, must follow the fate of the main thing). However, at present, one can speak of a hypothetical possibility of such an outcome. The current legislation of the Russian Federation considers land plots and immovable property located on them as two different objects independent of each other, which participate in civil law independently. Moreover, we can talk about the imperfection of the legal regulation of relations associated with the emergence and termination of property rights and other property rights to land plots and with the circulation of real estate located on this land plot. In general, Russian civil legislation, in so far as it is intended to regulate property relations on a land plot and on buildings or structures located thereon or other objects of real estate, on the one hand considers them as objects independent and fully involved in the turnover from each other, for which various legal regimes can be established, on the other, as physical and legal types of real estate connected with each other.
Proclaimed by the Land Code (hereinafter the LC), the idea of \u200b\u200b“a unified fate of the land plot and the objects firmly connected with it” within the framework of the virgin legislation is unrealizable. Rather, this idea can be seen as a distant prospect. This is due to the following reasons:
1. First of all, it should be noted that their legal regime is different. So, on a land plot, in contrast to buildings and structures, in addition to property rights, ownership rights, economic management rights, operational management rights, easement, the right of permanent (unlimited) use and inherited lifetime possession also extends. 2. The turnover of land is subject to a significant number of restrictions and exceptions that are not typical for real estate located on them. 3. In addition, according to paragraph 1 of Art. 271 of the Civil Code, if the law does not provide a decision on the provision of land owned by state or municipal property or an agreement otherwise, the owner of the building or structure (which can be any legal entity) has the right to permanent use of part of the land on which it is located this is real estate. At the same time, in accordance with paragraph 1 of Art. 20 of the Land Code for permanent use, land is provided only to state and municipal institutions, federal state-owned enterprises, as well as state authorities and local authorities. Thus, a contradiction arises between land and civil law. 4. It should also be borne in mind that for certain types of transactions with buildings and structures a special legal regime has been established that does not apply to land plots. So, according to paragraph 2 of Art. 651 of the Civil Code, a lease contract for a building or structure concluded for a period of less than a year is subject to state registration. In relation to land plots there is no such rule. 5. Even within the framework of civil law, there is a different legal regime in relation to these objects. So according to paragraph 3 of Art. 552 CC, the sale of a building located on a land plot belonging to the seller by right of ownership is possible without the simultaneous sale of the land to that buyer, and in accordance with Art. 69 of the Law on the mortgage of a building or structure without simultaneous mortgages of the land on which it is located is not allowed. Moreover, according to Art. 35 of the Land Code, it is prohibited to alienate a land plot without alienating the buildings and structures located on it, if the land plot and buildings (structures) belong to the same owner.
As a way out of this situation, it is proposed to fix the norm, according to which as soon as the land and everything on it becomes the property of one person, the law should declare the need to merge two real estate into one - the land. Bogatyrev F. How to further regulate the turnover of real estate // Economy and Law.-2003.-№11.-P.128. One can hardly agree with such a proposal. As already noted above, the turnover of land is much lower than that of real estate located on them. Thus, the owner of a non-negotiable land is deprived of the right to dispose of real estate located on this land. Grishaev S.P. Features of the legal regime of real estate / S.P. Grishaev // Civilist.-2007.-No3.-P.28
You can also talk about the special legal regime of the so-called legal real estate. Such property is called by law. In particular, it includes aircraft and sea vessels of inland navigation, space objects. As D.I. wrote in due time Meyer “there is no need for the legal division of property into immovable and movable to coincide with physical immobility or mobility of things, in the field of law it does not matter, motionless in nature or it is movable - it’s all the same, and if the legislator finds any necessary the definition regarding immovable property also applies to movable property, this definition will apply to movable property and vice versa. It should also be noted that the concept of real estate by virtue of the law is also characteristic of the legislation of other countries. So, under Section 658 of the California Civil Code, it is permitted to classify property as immovable by law.
The legal recognition of the indicated property as immovable (although it is movable in its physical essence) is explained by various lawyers for various reasons. In particular, there is an opinion that it is expensive and therefore requires a special registration procedure, which is provided for real estate. Moreover, the registration authorities not only register the rights to them, but also exercise control over these objects. The opinion was expressed that the legal regime of real estate was extended to these objects because of the need for state registration, the purpose of which was not only to confirm the right to them, but to satisfy them in accordance with technical and operational requirements in terms of safety of use. Syroedov N.A. Registration of rights to land and other real estate // State and Law. 1999.-No. 8.C92.
A common feature of the legal regime of real estate is, first of all, that it has a special procedure for state registration of rights to it. The law on state registration of rights to real estate and transactions with it applies only to real estate which is such in essence. Thus, this law does not apply to aircraft, sea vessels, inland navigation vessels, space objects for which registration rules are provided, which are prescribed mainly in transport charters and codes, as well as in departmental normative acts adopted in accordance with them.
For example, the Air Code (hereinafter VK) defines the concept of an aircraft “Aircraft - an aircraft maintained in the atmosphere by interacting with air other than interacting with air reflected from the surface of the earth or water” (Art. 32 VK), and the procedure for state registration and state registration of aircraft (art. 34 VK).
In accordance with paragraph 2 of Art. 15 of the Inland Water Transport Code, ownership of a ship or part of a ship arises from the moment of state registration of such a right in the State Ship Register, the Russian International Register of Ships or the register of small boats. Comparatively the same thing is in the Merchant Shipping Code, Art. 33 A vessel is subject to state registration in one of the registers of vessels of the Russian Federation (hereinafter referred to as the registers of vessels):
1) The State Ship Register; 2) the register of small vessels; 3) bareboat charter registry; 4) the Russian international registry of ships; 5) the register of ships under construction. Paragraph 3 of the same article reads: “registration in the State Ship Register, the Russian International Register of Ships or the register of small ships of the right of ownership and other property rights to a ship, restrictions (encumbrances) of these rights, their occurrence, transfer and termination, is the only evidence of the existence of registered rights, restrictions (encumbrances) of these rights and transactions that can only be challenged in court. ”
Today, the objects of civil rights are the benefits of tangible and intangible nature, in relation to which the corresponding legal relations are developing. What does it mean? What is the classification regarding this issue? Are there any problems associated with property complexes today? You can find answers to these and other questions in the process of studying this article.
The concept of property in civil law
As it turned out, property is an object of property rights. How does civil law define this term? In accordance with article 128 of the Civil Code of the Russian Federation, it is based on certain types of civil rights: things, including money and securities; other property complexes, including property rights; works and services; information (as intellectual property); intangible goods.
From this list it follows that the term in its broadest sense covers things, property rights, and, of course, similar obligations. Why is it so important to define the term relevant in the article competently in terms of specific legal relations? The fact is that it is collective in nature, it is as diverse as possible with respect to its composition.
Modern interpretation of the term
Today, property can be interpreted as one thing, and as a combination of them. Thus, articles 301-303, as well as 305 of the Civil Code of the Russian Federation, which primarily provide for protection methods with respect to property rights and other rights of a proprietary nature, provide interesting facts. Concept of property It is equivalent to a thing or a certain number of things that have been disposed of directly from the owner or individual vested with the right to life tenure by virtue of the adoption of an inheritance, farming or management, only if these property complexes are exterminated from another's possession.
In a different sense, the term considered in the article also applies to things and property rights. For example, in the third paragraph of article 63 of the Civil Code of the Russian Federation, property of a legal entity subject to liquidation, which is sold in accordance with the rules of public bidding, includes both things and property rights. Concept of property it is determined in a similar way when it is said about the responsibility of a business entity for its obligations to creditors by absolutely all property complexes that belong to it on the basis of material nature. It is important to add that the last example is directly related to such a field of civil law as law of a binding nature.
The concept of real estate in civil law
Law enforcement practice suggests that the question of the concept of real estate today somehow or other feels the need for serious study both in scientific and in legislative terms. First of all, such a claim is directly related to the exclusion of unity in relation to the views in theory, which relate to the signs that form the basis of the term, the criteria for classifying a property variety as immovable, and so on. So, has long been featured on the pages of scientific and legal publications. There is simply no single view on the interpretation of this concept today. In fact, this is not so scary. The horrifying thing is that the criteria that determine directly are not entirely clear.
Definition of a concept
Domestic scientists define the concept of real estate as a set of objects, the movement of which without visible damage in terms of their purpose are excluded, as well as other objects related to real estate through a direct indication of the law. So, in modern times, real estate is recognized, for example, as: land, mineral resources, structures and buildings, as well as air and sea vessels. Based on the foregoing, it should be noted that today the understanding of real estate in civil law is an important aspect of legal science in general.
Actual issues of dividing property into movable and immovable
In accordance with Russian civil law, it is customary to divide property into movable and immovable. The second paragraph of article 130 of the Civil Code of the Russian Federation refers to movable property complexes absolutely all things, including cash and securities that are not real estate. In accordance with the general rule, rights to movable property are not registered directly, unless otherwise provided by law.
The law may establish registration confirming the right to. As a rule, this practice is related to transactions with respect to certain types of movable things in accordance with paragraph two of Article 164 of the Civil Code of the Russian Federation. A vivid example of this is the somewhat limited in terms of turnover things. Only then does the registration act play a legal role and also affect the reality of transactions made with these objects. Such registration should not be confused with the technical, according to which, for example, vehicles or weapons for shooting are registered. It affects exclusively the exercise of certain civil rights, but not their formation, addition or termination at all.
Property Classification
In accordance with Article 130 of the Civil Code of the Russian Federation, some of the immovable nature are allocated:
- Real estate objects that are immovable in accordance with their own nature. This should include, for example, land or water bodies separately.
- Objects, physically motivated by nature, but legally classified as real estate. These may include, for example, property of a citizen: ships, space mechanisms and so on.
- Objects that are firmly connected with the earth, the movement of which entails disproportionate damage to their purpose.
What's the question?
As it turned out, the latter category inappropriately can cause adverse effects. Practice shows that the assignment of property complexes in the first and second groups of real estate, as a rule, does not cause great difficulties. Similar operations with respect to the third group today are quite problematic and raise a considerable number of questions. In accordance with Article 130 of the Civil Code of the Russian Federation, a quality qualifying attribute of real estate is exclusively land connection, which is durable, as well as the impossibility of changing the location of certain objects in connection with their purpose.
Why is it so difficult to differentiate? The fact is that the problem of the strength of the bond between the structure of the object and the ground is not solved in principle. The final decision primarily depends on the circumstances in relation to each case individually.
Signs of property valuation as immovable
The Federal Law on Property says that to describe the closing group in the context of a strong connection directly with the land and the movement of objects with the onset of disproportionate damage to their direct purpose, some sets of signs for assessing property complexes as immovable should be highlighted:
- The legal group proceeds from the relationship of land and the real estate, as well as from the qualifications of this object in relation to regulatory documents.
- Evaluation group is to assess the value of the object at various stages in terms of time.
- The technical group directly connects the object with the earth and characterizes it in a technical aspect.
Criteria for classifying property as immovable
To date, in legislative acts there is no classification of an object as real estate. So, it is necessary to highlight some criteria regarding the classification of property complexes as real estate, among which the main one is “land (inextricable link between them).
So, in the literature of a legal nature, it is customary to distinguish two main provisions on this subject. One of them suggests that the issue of real estate is a legal concept, not an actual one. The opposite opinion is expressed by V.V. Vitryansky: in order to recognize a thing as immovable, it is necessary only to have its strong connection with a certain land plot and the exclusion of movement without incommensurable damage to its immediate purpose. It should be noted that these provisions on communications of a durable nature cannot be determined only by a time factor. The Civil Code of the Russian Federation, which regulates the institution of real estate, does not include an indication of the temporality of a strong connection. That is why with regard to law enforcement practice, in the process of solving the corresponding problem, the standards of the public branch of law prevail, which clearly do not want to recognize temporarily installed structures as real estate objects, regardless of the strength of their connection directly with the land.
What objects should be classified as real estate?
In addition to the inextricable link between the land and the property, today the following criteria are known for classifying property as real estate:
- The ability to perform certain functions by this object in the same order even after changing its position in space.
- The impossibility of consuming things, individual certainty and absolute indivisibility.
- The purpose of things in technical terms.
- The assignment of an object directly to a number of capital buildings (it should be noted: when building for a certain period of time, the object should not be classified as real estate).
- The ability to bring to the object of communications of a stationary nature.
- Features of the manufacturing material of the object, in accordance with which a collapsible structure must be attributed to real estate.
Real estate examples
As it turned out, real estate has a special position in relation to civil turnover. In accordance with the norms of the current legislation of the Russian Federation, the following items belong to real estate:
- Plots of land.
- Bosom.
- Water bodies in a separate aspect.
- Forest areas.
- Plantations of many years of nature.
- Various buildings and structures.
- Non-residential premises.
- Houses intended for living.
- Some parts of the living quarters.
- Apartments or their parts.
- Other residential premises in certain buildings, which are suitable for both permanent and temporary residence.
- Garages and other structures of a consumer nature.
- Enterprises in the role of property complexes and so on.
real estate civil law
Summing up the above, we note that the division of things into movable and immovable is based on their natural properties. Immovable things, as a rule, cannot be moved, they are individually defined and irreplaceable. The movable can freely move and be both individually defined and generic.
The concept of real estate and its types are laid down by the legislator in Art. 130 GK. To real estate, item 1 of article 130 of the Civil Code, firstly, it includes objects of natural origin - land, subsoil and separate water bodies. It should be noted that the laws on natural resources in a slightly different way define these objects in relation to the right of ownership. Thus, the Subsoil Law recognizes as a state property the subsoil as a whole, as a part of the earth’s crust, located below the soil layer, and in its absence, below the earth’s surface and the bottom of water bodies, and extending to the depths accessible for geological exploration and development, within the territory Russian Federation, its continental shelf and marine exclusive zone. The subsoil plots in the form of mining allotment are considered by the Law as objects that can be provided for use.
The Water Code provides that water bodies as a whole are objects of state ownership, and part of a water body is also understood. Separate water bodies (enclosed bodies of water) can be not only in state ownership, but also in municipal ownership. Only part of the water body, that is, a section of the water surface, can also act as an object of a right to use or property right (public or private easement).
Secondly, real estate includes everything that is firmly connected with the land - buildings, structures, forests, perennial plantings and other objects, the movement of which is impossible without disproportionate damage to their purpose. These properties are recognized as real estate as long as they are firmly connected to the land. Being separated from her, they become movable things. The enterprise as a whole as a property complex is also recognized as immovable (Article 132).
The Civil Code consolidates the features of the legal regime of real estate:
- 1) The right of ownership and other property rights to real estate, restrictions on these rights, their occurrence, transfer and termination are subject to state registration (Article 132).
- 2) An obligation, the subject of which is real estate, shall, as a general rule, be performed at its location.
- 3) The right of ownership to the newly created real estate or transferred under the contract arises from the moment of state registration of this real estate (Article 219) or the transfer of ownership to the buyer (Article 511).
- 4) A special procedure has been established for acquiring property rights to ownerless immovable things (Article 225) and longer periods of acquisitive prescription for real estate (Article 224); foreclosure on mortgaged immovable property (Article 349); disposal of state and municipal enterprises of their real estate (Art. 295).
- 5) There are special rules for transactions with real estate, providing for the dependence of rights to a land plot from rights to real estate. Thus, a mortgage of real estate (mortgage) is allowed only with a simultaneous mortgage under the same contract of the land on which it is located, or part of it necessary for its use, or the right to use the mortgagor of this land or part thereof (Article 340).
Upon the sale or lease of buildings, structures and enterprises simultaneously with the transfer of ownership to them to the buyer, the rights to that part of the land plot that is occupied by real estate and necessary for its use are transferred. If, however, only a land plot is sold or leased, the owner of the property retains the right to use the part that is occupied by this property and is necessary for its use, on the conditions provided for in the contract, and in their absence - the right of limited use (easement) (Article 526) 553 and 652, 653). The provisions of the Civil Code on gift and annuity agreements do not contain similar rules regarding real estate and the land on which it is located. It seems that, by analogy, the rules for the sale of real estate should apply to them. The GC also includes some things that are movable by their natural properties - aircraft and sea vessels, inland navigation vessels and space objects. Real estate are only those that are subject to state registration by bodies authorized to exercise control over these objects.
The concept of these vehicles is disclosed in transport charters and codes, and space objects - in international conventions (treaties, agreements). An aircraft is an aircraft maintained in the atmosphere by interacting with air reflected from the earth's surface. A ship, sea or inland navigation, is a self-propelled or non-self-propelled floating structure intended for navigation on sea and inland waterways. Russian law (Law of the Russian Federation of August 20, 1993 "On Space Activities" - WG of October 6, 1993) does not define a comic object. International documents include objects launched into space or delivered to or built on celestial bodies.
Some of the international acts as space objects consider not only the object as a whole, but also its component parts, as well as its delivery vehicle (its part), indicate the types of space objects (stations, installations, equipment, spaceships). The procedure for registration of aircraft is determined by Article 32 of the Air Code. Civil vessels are subject to registration in the State Register of Civil Aircraft of the Russian Federation. Maintenance of the state register is entrusted to a specially authorized body in the field of civil aviation. State aircraft are registered in the manner prescribed by a specially authorized body in the field of defense in coordination with specially authorized bodies having state aviation units. Sea vessels are registered in the manner prescribed by Article 23 of the Merchant Shipping Code of the USSR, and inland vessels - Article 26 of the Charter of Inland Water Transport of the USSR. Seagoing vessels are subject to registration, technical supervision of which is carried out by the Technical Register, and inland watercraft, which are self-propelled and non-self-propelled, with a carrying capacity of more than 5 tons. Sea vessels are entered in the State Ship Register in one of the sea or river ports, and vessels of the inland water transport - in the ship registers of river basins or shipping inspections (ships constantly sailing near sea ports located on rivers, and below these ports are subject to entry in ship registers try these ports). However, until the adoption of the relevant federal laws based on the provisions of Clause 1 of Article 131 of the Civil Code, the current procedure for registering rights to these objects (Clause 1 of Article 33 of the Law on Registration of Real Estate) should apply. Space objects are subject to state registration, the order of which is determined The government of the Russian Federation. Along with this, the Convention on January 14, 1975 on the registration of objects launched into outer space is also in force in this area.
The registration of aircraft, sea vessels, inland waterway vessels and space objects by authorized bodies does not replace the registration of rights to them as real estate, in the manner prescribed by Article 131 of the Civil Code. The Civil Code does not exclude the possibility of extending the real estate regime to other property, in addition to specified in paragraph 2 of paragraph 1 of article 130, but only on the basis of a direct indication of the law. Movable property are things, including money and securities, which are not classified by the Civil Code and other laws as real estate. Rights to movable things (as a general rule) are not subject to state registration. However, the law may provide for the need for such registration for certain types of movable property. So, the Government of the Russian Federation of August 12, 1994, 938 “On the state registration of motor vehicles and other types of self-propelled vehicles on the territory of the Russian Federation” is currently in force (SZ RF, 1994, 17, Article 1999). Analyzing all of the above, it should be said that the legislator, despite many others, has adopted the classification of real estate into real estate in its essence and by virtue of the law. This classification and the special legal regime is important for state registration (it will be discussed later). I also want to highlight the problems in civil law related to the division of property into movable and immovable. And the division of the immovable, in turn, into the above types. The legislator considers synonyms of the concepts “immovable things”, “immovable property”, “real estate”, as evidenced by Article 130 of the Civil Code of the Russian Federation. According to it, as mentioned above, immovable property includes land plots, subsoil plots, isolated water bodies and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including forests, perennial plantings, buildings, structures.
The legislator also considers movable things subject to state registration to the category of immovable: aircraft and sea vessels, inland navigation vessels, space objects. They are not only capable of spatial movement without prejudice to their purpose, but are also specially designed for this. Thus, the legislator divided immovable dejure things into two types: immovable (land, subsoil, etc.) and movable by nature, but classified as immovable. There is no consensus on why the legislator considered it necessary to include movable things in the number of immovable things and extend the effect of the rules for selling real estate to them. So, A.P. Sergeev believes that this is due to the high cost of these facilities and the associated need for increased reliability of civil circulation rules.
M.I. Braginsky, in turn, notes: "The legislator combined them with naturally immovable things, since both of them are subject to state registration." It seems that the legislator did not take into account the essential detail that things moved by nature can be both individually defined and generic. This is their significant difference from immovable, which are always individually defined. The fact is that the rule on the consequences of the transfer of property of inadequate quality, established by Article 557 of the Civil Code, which states: “In the case of a seller transferring property to a buyer that does not meet the terms of a property sale agreement on its quality, the rules of Article 475 of this Code apply, with the exception of the provisions on the buyer's right to demand the replacement of goods of inadequate quality with goods corresponding to the contract ”, applicable to immovable aircraft and sea vessels and inland vessels recognized by the legislator, space objects (Article 130 of the Civil Code), as well as to other movable things, which subsequently, in accordance with the same norm enshrined in Part 2 of Article 1 of Article 130 of the Civil Code, can be classified by law as immovable things, only if if these things are individually defined. In relation to generic things, this condition is unacceptable. The legislator in this situation does not protect the interests of the buyer, but rather acts contrary to them, creating meaningless barriers to the normal circulation of this kind of goods. Suppose, an agreement was concluded to sell an aircraft, which was a “witness” of an important event (the signing by the heads of state of a historically significant document that played a large role in the further development of their relationship), which was confirmed by documentary evidence or testimony. Here we are dealing with an individually defined thing. Even if such aircraft (of the same company, model, etc.) were produced or continue to be produced in large quantities, the subject of the contract is not a generic thing. Indeed, in this case we are talking about buying not only and not so much a means of transportation as a historically valuable thing. The subject of this contract is a rarity, a unique thing, one of a kind, which makes it possible to give it an individually defined status. Consequently, in the case of a seller transferring to a buyer an already characterized product that does not meet the terms of an agreement on its quality, the rules are applied in accordance with Article 557 of the Civil Code Article 475 of the Civil Code, with the exception of the provisions on the buyer's right to demand the replacement of goods of inadequate quality with goods that comply with the contract. In the given example, there should be no doubt that the legislator is right and in the event of a significant violation of the requirements for the quality of the goods, the buyer can only refuse to fulfill the contract of sale and demand a refund of the money paid for the goods. He is not entitled to demand the replacement of goods, since the latter is individually defined. Suppose, however, that an agreement was concluded to sell a batch of aircraft manufactured in series. Here we are no longer talking about individually - a certain thing, but about generic things. If, after the transfer of the goods to the buyer, he discovers significant violations of its quality, Article 557 of the Civil Code is applied with reference to paragraph 2 of Article 475 of the Code. Suppose that in this example five out of twenty aircraft sold were of poor quality. According to article 557 of the Civil Code, the buyer is not entitled to demand the replacement of goods - the law gives him the right to refuse to fulfill the contract and demand the return of the amount paid for the goods.
Even if the seller can replace five low-quality aircraft, thus saving time and money of his and the buyer, the law does not grant him such a right. However, the buyer and seller are interested in the fact that in this case the buyer does not get refunded, and low-quality aircraft are replaced. Of course, Art. 557 of the Civil Code is quite applicable to relations associated with all things, without exception, immovable by nature, since they are always individually determined. However, with regard to movable things, its norms must be applied only when it comes to individually defined things. There is an opinion that Art. 557 of the Civil Code must be amended and worded as follows: “In the event the seller transfers to the buyer real estate that does not meet the conditions of the contract for the sale of real estate on its quality, the rules of Art. 475 of this Code, with the exception of the provisions on the buyer's right to demand the replacement of goods of inadequate quality with goods that comply with the contract.
If the subject of the contract for the sale of real estate is the things specified in Part 1, Clause 1 of Article 130 of this Code, and if these things are determined by generic characteristics, in this case the rules of Article 475 of this Code shall apply without exemptions. " The proposed wording of Art. 557 of the Civil Code requires a clearer legislative definition of immovable things and things, by their nature, movable, but classified by law as immovable. Therefore, it is advisable to make changes to Art. 130 GK. Indeed, part 2 of clause 1 of article 130 of the Code refers exclusively to things movable by nature, and the content of part 1 of article 1 of article 130, in particular: “everything that is firmly connected with the earth, that is, objects, movement which without disproportionate damage to their purpose is impossible ”- is not entirely complete and accurate. This norm would be more clearly enshrined and its application in practice would become simpler and more convenient if it were stated as follows: “Other movable (by nature) property may be assigned to immovable property by law”. Amendments to Article 130 of the Code is necessary not only because this will serve to more clearly put into practice the proposed version of Article 557 of the Civil Code, but also because Article 130 of the Civil Code needs a more precise wording for its correct application in other respects.