Disposal of your property. Disposition is an integral driving force of all economic processes. Power of disposal. The owner has the rights to own, use and dispose of his property

1. The owner has the rights to own, use and dispose of his property.

2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.

3. Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law, are carried out by their owner freely, if this does not cause damage environment and does not violate the rights and legitimate interests of other persons.

4. The owner can transfer his property into trust management to another person (trustee). The transfer of property into trust management does not entail the transfer of ownership rights to the trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.

Comments on the article

1. Property rights are a measure of the possible behavior of a subject of civil transactions in the exercise of his power and in his interest the powers to own, use and dispose of property. The concept according to which the content of property rights is revealed through the “triad of powers” goes back to the tradition of Roman private law. Other powers of the owner, the need to introduce which into the definition of the concept of property rights have been proposed at different times in the science of civil law, such as “management” of property or its “separation”, primarily reveal the economic nature of property relations and are particular aspects of the “triad”.

Ownership is absolute and exclusive right. The owner has the right to claim that any of the participants in civil transactions surrounding him will refrain from arbitrary interference in his property sphere. Russian civil legislation, in contrast to the Anglo-American legal model, does not allow the coexistence of rights of equal scope, called property rights, in relation to the same property. In accordance with Art. 35 of the Constitution of the Russian Federation, no one can be deprived of their property except by a court decision.

2. The right of ownership consists of a legally secured opportunity to possess and control property, exercised legally and in good faith by the owner. The right of ownership can also be exercised by a person who is not the owner: owning property on the right of lifelong inheritable ownership, economic management, operational management, or on another basis provided for by law or agreement, as well as by acquisitive prescription. Despite the fact that Russian civil legislation does not use an independent concept of ownership, actual ownership of property often plays a constitutive role in civil rights about relationships. It legitimizes the subject to bring claims in rem (see commentary to Article 301, Civil Code); in the presence of a set of conditions, it serves as the basis for acquiring ownership rights (see commentary to Article 234 of the Civil Code). In judicial arbitration practice, in the absence of sufficient evidence of title (i.e. legal basis possession) in relation to a thing, a preferential position, as a rule, belongs to the person who actually owns the property (this is how the concept of possession, formulated in the 19th century by the German civilist Iering, as an “outpost” of property rights, is implemented). The acquisition of actual ownership of property is usually associated with the transfer of ownership from one person to another. The creditor may withhold in the manner provided for in Art. 359 of the Civil Code, only property in respect of which he has the right to own. Whether the owner has the ability to adequately exercise economic ownership and control over the property under the circumstances significantly affects the possibility of full implementation of the powers of use and disposal.

The right of ownership can be part of both real rights (see commentary to Article 216 of the Civil Code) and obligatory rights (for example, the rights of a tenant, borrower, tenant of a residential premises, custodian, etc.)

Actual possession can only be exercised in relation to things in kind. The concepts of “ownership of property rights” and “ownership of intangible benefits” are devoid of practical meaning. 3. Distinguish between legal and illegal possession. Legal possession, including the possession of the owner, is carried out on the basis of title, but title possession, as opposed to the possession of the owner, is usually called the legal possession of a person who is not the owner, carried out on the basis provided by law or contract. Non-title ownership general rule illegal, but possession by prescription (Article 234 of the Civil Code), by its nature non-titled, is protected by law and therefore is rather a surrogate for legal possession. Sometimes they also talk about natural possession, which means instant short-term possession of a thing, with which the law does not bind independent legal consequences(for example, the viewer’s natural possession of a chair in a theater hall for the duration of the performance; the tenant’s natural possession of property transferred only for use). On the concept of fair and bad faith possession, see commentary. to Art. 234 Civil Code.

4. Use is a legally enforceable possibility of extraction beneficial properties from a thing during its operation. The use of a thing can be carried out either by the owner or by another person to whom the owner has delegated this power along with the right of possession or with the provision of access to the thing through natural possession. Illegal use is a form of illegal behavior, the consequences of which can be either a claim for damages in the form of compensation for harm caused or acquired unjustifiably, or, in some cases, bringing the offender to administrative or criminal liability.

The process of using a thing in any case presupposes its wear and tear, the intensity of which is determined by the characteristics of the thing and its functional purpose. Consumable items are subject to the most rapid (often immediate) wear and tear, even destruction. The destruction of a consumed thing during its operation in a normal, ordinary mode mediates the exercise of the right to use, and not to dispose, and only if the owner’s goal is not only (or not so much) to extract useful properties from the consumed thing, but also to terminate its existence (as this took place in the behavior of a famous literary character who slaughtered cattle in order to avoid its socialization), we can talk about the simultaneous exercise of the powers of use and disposal.

The extraction of beneficial properties from the fruits of a thing (in Roman law - jus fruendi) is covered by the content of the right to use.

5. The content of the power of disposal consists in the legally secured possibility of determining the actual and legal fate of a thing. It can be temporary (renting property, making it as collateral) or final in nature (alienation under an agreement on the transfer of property into ownership, making it as a contribution to authorized capital, destruction); be unconditional or conditional (alienation under an agreement on lifelong maintenance with dependents). Forms of disposal of property can be the destruction of a thing (see previous paragraph comment) and waiver of ownership rights (see.

The right of disposal is the right inherent in a legal or natural person, which allows one to dispose of certain property, material or spiritual values at their own discretion. The right of disposal extends only to those objects or valuables that a certain person legally owns: which were purchased by him or received into ownership by legal means. The right to dispose of property does not allow the owner to take actions that could cause damage to society, the environment or the state, as well as other values that are not owned of this person. The rights to dispose of this or that property are prescribed in legal acts various states, V Russian Federation they can be found in the Civil Code.

The importance of the right to dispose of property in economics

Let's consider the main economic functions of the right to dispose of something, which economists note in their works. The first meaning is that the right of disposal gives rise to class inequality in society, especially if it is different for different social groups. If in a state citizens have the right to dispose, for example, of their in cash fully, then different uses of money will lead to different people achieving different results in life. If one person invests in money and another simply spends it, then it is quite obvious that in a few years the financial situation of these people will not be the same. If the state imposes restrictions on the ability to manage money (for example, in socialist states it was impossible to invest money in goods for resale) or any other property, this will restrain the growth of class differences.

The second meaning is that the right to dispose of property creates additional opportunities for the state to receive tax payments. The disposal of property that belongs to the state can hardly be free; the use of this property for the personal interests of an individual requires him to pay taxes. For example, the use of land, which, although considered the property of the landowner, actually belongs to the state, requires annual or even more frequent payment of taxes. How large areas the lands will be used by people, the more income the state will receive, therefore, major world powers are actively pursuing programs to attract entrepreneurs or ordinary individuals from abroad, who could use the land and pay money to the state for it.

Property has worried the minds of people throughout the existence of mankind. The development of the latter is directly related to this concept. Thanks to the existence of the institution of property and rights to it modern society is actively developing. In this context, disposition is an integral part of all economic processes.

Ownership

Concepts such as “mine” and “yours” make it possible to determine the meaning of the word “property” in everyday life. That is, these are behavioral relationships between people determined by social order (traditions, laws, rules, norms, customs, etc.), arising in connection with the acquisition and use of goods.

Legally, property rights are a set of legislative norms that secure the appropriation of property

Triad of powers

Traditionally in Russia there is a subjective idea. The Civil Code of the Russian Federation (clause 1, article 209) is disclosed by the so-called triad of powers. It follows from it that possession, use, disposal are powers regulated by law. In other words, this is a legally supported opportunity to own, maintain, and use property. The essence of powers is the ability to exploit property by extracting useful properties from it.

When analyzing the powers associated with property, one should clearly distinguish between possession (actual control over property) and the right of possession (the real right to have this thing with oneself). The use differs similarly (extracting necessary properties things) and the right of use (real right to benefit from property). The right of disposal is strikingly different from these concepts. It occupies a special place in the triad. From the point of view of many scientists, disposal is the basic, most significant right, without which property as such has no meaning.

Power of disposal

Each owner has a legally secured ability to dispose of his property, as well as the rights to it. The main condition in this case is the compliance of his actions with the law and other regulations.

In accordance with civil law, the disposal of property is the power of the owner, which gives him the opportunity to perform any legal actions with the property he owns at his own discretion. Including:

Disposal of ownership of property

It is often mistakenly believed that an order is a right of alienation. Indeed, these two concepts are related to each other. However, not every order is related to or is an alienation. For example, registering an item for rent or rent. This is an order, but at the same time it is not alienation. These two concepts are similar as genus and species. Therefore, disposition is any alienation.

In addition, he can voluntarily renounce his rights to his property. At the same time, he loses the opportunity to resume the actions of use, possession and the right of disposal. This power is provided for by law, and the refusal must be expressed in an unambiguous manner.

Limitation of powers of disposal

The owner may have limited rights. The order may be reduced, for example, in cases of arrest, unlawful possession of another person, bail or other circumstances. However, then the owner is not deprived of his authority, but only cannot exercise it for a certain period of time.

In addition, according to paragraph 5 of Article 55 of the Constitution of the Russian Federation, it is possible to limit the rights and freedoms of a citizen exactly to the extent necessary to protect the constitutional system, health, interests of other persons, morality, etc. Taking this into account, we can conclude that that only on the basis of Federal laws is it possible to restrict the right of property in general and disposal in particular.

At the same time, any restriction has its limits. The established framework should not be arbitrary, but dictated solely by necessity. All such restrictions must meet the requirements of fairness, expediency, legality, and proportionality.

The main motives for limiting property rights are finitude natural resources, housing shortage, reducing the consequences of using sources of increased danger, sanitary standards and more.

It is unacceptable to restrict the right to dispose of property for the purposes of unhealthy competition, creating a threat, or protecting the illegal interests of citizens.

Legal characteristics of funds

The subjects are assigned the right of ownership of property (tangible and intangible). The legislator defines funds as (part 1 of article 302, part 1 of article 307 of the Civil Code), and therefore they participate in civil legal relations. The bulk of money is in circulation and constantly moves between subjects of legal relations, some of which lose ownership, while others acquire it.

Disposal of funds is the ability to manage them as a universal means of payment for goods and services. Money itself has no use value. Their value is determined through the exercise of the owner’s powers of disposal.

Ownership in a subjective sense, this is the ability, belonging to a certain person, to perform three powers in relation to a thing, enshrined in paragraph 1 of Art. 209 of the Civil Code of the Russian Federation: possession, use and disposal of one’s property. This means that the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the right to own, use and dispose of property, pledge the property and encumber it in other ways, dispose of it in another way.

In paragraph 2 of Art. 209 of the Civil Code of the Russian Federation establishes the limits of the exercise of property rights: the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons.

Essence powers of possession is the ability provided by law to exercise actual dominance of a person over a thing. Actual dominion over a thing is achieved by transferring the thing or in another way that allows it to be established. This element of the triad is fundamental.

In this regard, it should be noted that depending on the subject exercising ownership and the will of the owner, it is possible to distinguish:

o independent ownership, those. that which is carried out by the owner or possessor of other property rights, giving possession, independently;
o legal possession, it is carried out at the will of the owner (rent, storage, assignment, transportation, trust management, etc.) or in cases provided for by law for the owner (ownership of inherited property, sequestration, ownership of property of a ward, missing person, etc.);
o illegal possession - not at the will of the owner and not for the owner, but it can be in good faith if it was received from a person who did not have the right to alienate, which the acquirer did not know and could not know with due diligence.

Thus, in this authority the state of belonging of a thing to a certain person finds its legal expression.

Authorization to use - This is the possibility of extracting the useful properties of a thing, secured by objective law. In this case, it does not matter whether the property is used to satisfy personal needs or for profit. Thus, a farmer who grows various varieties of wheat on his plot of land extracts from the plot itself and the purchased grain those beneficial properties that are ultimately called “harvest.” A summer resident who relaxes on a plot of land and plants trees and other perennial plantings on it also receives benefits from his property in the form of physical and spiritual satisfaction, as well as the resulting vegetables and fruits.

Unlike the other two powers of the owner, the content and scope of the right to use (especially real estate) is largely determined not by the norms of civil law, but by the norms of other industry affiliations.

For example, the most important, basic real estate are land plots. The owner of a land plot intended, for example, for individual housing construction, can exercise the right to use only in the manner prescribed by land and town planning legislation. It is these standards that determine the parameters and types of real estate that can be built on a land plot (number of storeys, area, indentations from the edge of the site, the number of auxiliary objects - bathhouses, barns and their characteristics, etc.), as well as the parameters for the reconstruction of a real estate property; procedure for developing design documentation and obtaining a construction permit, etc.

Authority to order property is the external expression of the powers that are part of the right of ownership, and the ability to independently determine the fate of a thing by performing legal actions, mainly transactions. At the same time, disposing of a thing does not always mean transferring ownership rights.

For example, the owner can transfer his property into trust management to another person (trustee). Such a transfer of property does not entail the transfer of ownership rights to a trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.

The power of disposal can also be aimed at alienating a thing, i.e. transfer of all rights to it to another person. For example, when selling a residential building, the actions of the seller (signing an agreement, deed of transfer, accepting money) indicate the direction of his will and will towards the transfer of rights to the property.

Therefore it is necessary to distinguish:

o an order entailing the transfer of ownership of a thing - alienation;
o an order entailing the transfer of ownership of an item (luggage deposit);
o an order entailing the transfer of the right of use (for example, when leasing a land plot, only the right of use is transferred to the tenant).

Along with the right of ownership, the owner is vested responsibility for its maintenance - the “burden” of bearing the associated costs and risks. As established by Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract. This means his obligation to maintain the property in proper condition (repairs, adding mineral fertilizers to the soil, etc.), paying utility bills, taxes, registration, etc.

A special type of such “burden” there is a risk of accidental death or accidental damage to property (security, insurance, etc.). In some cases, the owner may be exempt from bearing it, for example, in accordance with the provisions of Art. 344 of the Civil Code of the Russian Federation, the pledgor bears the risk of accidental loss or accidental damage to the pledged property, unless otherwise provided by the pledge agreement.

The Civil Code of the Russian Federation divides forms of ownership into types, highlighting:

o as part of state form property - property of the Russian Federation and constituent entities of the Russian Federation;
o types of property are not distinguished as part of the municipal form of ownership;
o private form of ownership includes two types: property of citizens and property legal entities;
o “other forms of ownership” are not specified by the Constitution of the Russian Federation and the Civil Code of the Russian Federation.

State property is property owned by the Russian Federation (federal property), and property owned by subjects of the Russian Federation - republics, territories, regions, cities federal significance, autonomous region, autonomous okrugs (property of a constituent entity of the Russian Federation). State-owned property is assigned to state enterprises and institutions for possession, use and disposal. According to Art. 214 of the Civil Code of the Russian Federation, two types of property can be in state ownership:

o property assigned to state enterprises and institutions with the right of economic management and operational management;
o other property, including property constituting the treasury of the Russian Federation and the treasury of the constituent entities of the Russian Federation, budget funds.

Municipal property property is recognized that belongs by right of ownership to urban and rural settlements, as well as other municipal entities (the property of urban districts, municipal districts and intracity territories of cities of federal significance). In accordance with Art. 49 Federal Law dated 06.10.2003 No. 131-FZ "On general principles organizations local government in the Russian Federation" municipal property, means local budgets, as well as the property rights of municipalities constitute the economic basis of local self-government. Therefore, municipal property is recognized and protected by the state on an equal basis with other forms of property.

Local government bodies have the right to transfer municipal property for temporary or permanent use to individuals and legal entities, bodies state power of the Russian Federation (state authorities of a constituent entity of the Russian Federation) and local self-government bodies of other municipalities, alienate, make other transactions in accordance with federal laws.

Private property - This is property owned by citizens and legal entities (commercial and non-profit organizations, except for government and municipal enterprises, as well as institutions). Russian legislation It is established that any property can be privately owned, with the exception of certain types of property, which, in accordance with the law, cannot belong to citizens or legal entities.

Despite general rule the inadmissibility of limiting the ownership of property by private property, certain federal laws establish certain restrictions on the quantity and value of property owned by citizens and legal entities. So, according to Part 2 of Art. 4 of the Federal Law of July 24, 2002 No. 101-FZ "On the turnover of agricultural land" the maximum size of the total area of agricultural land that is located on the territory of one municipal district and can be owned by one citizen and (or) one legal entity is established by the law of the subject RF equal to at least 10% of the total area of agricultural land located in the specified territory at the time of provision and (or) acquisition of such land plots.

According to paragraph 1 of Art. 216 Civil Code of the Russian Federation real rights along with the right of ownership, in particular, are:

o right of lifelong inheritable ownership land plot(Article 265 of the Civil Code of the Russian Federation);
o the right to permanent (indefinite) use of a land plot (Article 268 of the Civil Code of the Russian Federation);
o easement (Articles 274, 277 of the Civil Code of the Russian Federation);
o the right to manage property (Article 294 of the Civil Code of the Russian Federation);
o the right to operational management of property (Article 296 of the Civil Code of the Russian Federation).

This list is open in nature.

Property is the attitude of a person to a thing belonging to him as his own, which is expressed in the possession, use and disposal of it, as well as in the elimination of interference of all third parties in the sphere of economic domination over which the power of the owner extends.

The content of the right of ownership includes three powers: 1) possession is the ability based on law to have a thing in one’s possession; 2) use is the ability to carry out economic exploitation of a thing by extracting its useful properties from it; 3) disposition is the ability to determine the legal fate of a thing by performing any actions permitted by law (Article 209 of the Civil Code of the Russian Federation).

The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the rules of law and do not violate the rights of other persons.

Methods of acquiring property rights, depending on whether one or another method is based on succession, are divided into:

1) initial, based on which there is no succession - this is the creation of a thing (clause 1 of Article 218 of the Civil Code of the Russian Federation), the collection of publicly available things (Article 221 of the Civil Code of the Russian Federation) (for example, fishing), the acquisition of ownership of ownerless things (clause 3, Art. 218, Art. 225, Art. 226 of the Civil Code of the Russian Federation), find (Art. 227-229 of the Civil Code of the Russian Federation), treasure (Art. 223 of the Civil Code of the Russian Federation), etc.

2) derivatives that are based on succession - this is the acquisition of property under a contract, by inheritance, nationalization (clause 2 of Article 235, Article 306 of the Civil Code of the Russian Federation), etc.

Termination of ownership can be:

1) At the will of the owner: transactions, waiver of ownership, etc.

2) Contrary to the will of the owner - only in cases expressly specified in the law (clause 2 of Article 235 of the Civil Code of the Russian Federation). In this case, the termination of ownership can be either with compensation to the owner for losses caused by the seizure of the thing (for example, requisition, forced purchase of mismanaged cultural property), or without it (for example, confiscation, destruction of the thing).

Depending on the type of subject, the Civil Code of the Russian Federation distinguishes following forms property: state (Russian Federation and its constituent entities), municipal (urban and rural settlements) and private property (individuals and legal entities) (Article 212 of the Civil Code of the Russian Federation).

Depending on how many persons own the right of ownership of a thing, there are:

1) single-subject ownership - when the ownership of a thing belongs to one person;

2) common property - when the right of ownership of a thing simultaneously belongs to several persons (Article 244 of the Civil Code of the Russian Federation). This type property rights are divided into:

a) general shared ownership– this is the right of ownership of two or more persons to one property with the determination of each person’s share in the right of common ownership;

b) common joint property is the right of ownership of two or more persons without predetermined shares (for example, the legal regime of property of spouses).

Common ownership of property is shared, except for cases where the law provides for the formation of joint ownership of property (clause 3 of Article 244 of the Civil Code of the Russian Federation).

The main means of protecting property rights are:

1) A claim for the recovery of property from someone else’s illegal possession (vindication claim). In accordance with Art. 301 of the Civil Code of the Russian Federation, the owner has the right to reclaim his property from someone else’s illegal possession. To bring this claim, a number of conditions must be present simultaneously:

a) the owner must be deprived of actual control over his property, which has left his possession;

b) it is necessary that the property that the owner has lost be preserved in kind and be in the actual possession of another person;

c) property that has left the owner’s possession must be individually determined;

d) the owner and the actual owner of the thing must not be bound to each other by an agreement or other obligatory legal relationship regarding the disputed thing.

As stated above, the right to vindication belongs to the owner who has lost possession of the thing. However, along with it, reclaim property from someone else’s illegal possession in accordance with Art. 305 of the Civil Code of the Russian Federation can also be a person who, although not the owner, owns the property by virtue of law or agreement (for example, a tenant, custodian, etc.).

2) A claim for elimination of violations not related to deprivation of possession (negative claim). In accordance with Art. 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession. That is, this remedy is used when the property is owned by the owner, but another person creates any obstacles to the use or disposal of the property. Moreover, this claim is brought only when the owner and the third party do not have an obligatory or other relative relationship with each other regarding the disputed thing and when the committed offense did not lead to the termination of the subjective right of ownership. The right to a negatory claim belongs to the owner, as well as to a person who, although not the owner, owns the property by virtue of law or agreement (Article 305 of the Civil Code of the Russian Federation).

3) Claim for recognition of property rights. The basis for the allocation this tool protection of property rights is Art. 12 of the Civil Code of the Russian Federation, which states that the protection of civil rights is carried out, among other things, through the recognition of rights. The subject of this claim is the court's determination of the fact that the plaintiff owns property rights.

The above means of protecting property rights relate to property rights and are characterized by the fact that they are aimed directly at protecting property rights as an absolute subjective right and are not associated with any specific obligations. However, there are other means of protecting property rights. For example, legal obligations - the claims that constitute them do not stem from the right of ownership as such, but are based on other legal institutions and subjective rights corresponding to these institutions (a claim for compensation for damage caused to the owner, for the return of things provided for use under a contract, etc. ).