“Application of Specific Provisions of the Road Map”

O.A. Khatuntsev

for Development of the Russian Civil Law by Law Makers

to the extent of amendments made in the Civil Code of the Russian Federation related to property rights

Synopsis: this publication deals with forthcoming amendments expected to be made in the civil law pursuant to proposed draft laws which provide for legitimization of distinctive features or attributes of property rights

Key words: road map for development of civil law; civil code; property rights; list of property rights; definition of property rights; attributes of property rights; features of property rights; approaches to property rights

The Road Map for Development of Russian Civil Law [1] introduced by well-known Russian civil law scholars gives as well consideration to the depth of international experience (primarily that of civil law jurisdictions, including but not limited to, Germany, France etc) [2] as to a distinction made between the law of property and the law of obligation and development of specific features of property rights which are deemed mandatory and sufficient criteria used to classify any right as a property right.

Subclause 2.2, Clause 2, Section IV of the Road Map deals with common features typical of all legal property rights, namely:

1) Legal rights arise and expire for any reason whatsoever listed in the Civil Code of the Russian Federation or any law enacted thereunder;

2) List of property rights is introduced by the Civil Code of the Russian Federation only;

3) The content of property rights and the way these are to be exercised in is determined by the Civil Code of the Russian Federation and the laws enacted thereunder;

4) Property rights place a burden upon any property or thing, give the holder thereof the right to dispose of any respective property or item at his or her own discretion and are transferred along with the same;

5) Property rights take priority over other proprietary rights having regard to any property or item;

6) Property rights unlike other legal civil rights are subject to proprietary protection;

7) The ratio of authorities available to an owner of any relevant item and that of restricted property rights is determined pursuant to the Civil Code of the Russian Federation to the extent having regard to respective property rights;

8) Property rights to real estate are subject to state registration.

We suppose that most of the aforementioned features shall not be deemed substantial and shall not allow it to distinguish property rights from other legal rights whatsoever. Now, let’s analyze each of them.

The first feature stated by authors of the Road Map for Development of the Russian Civil Law is that property rights arise and expire for any reason whatsoever specified in the Civil Code of the Russian Federation or any law enacted thereunder. We believe that this feature is not in full reflective of the content of property rights primarily because although certain property rights do arise pursuant to applicable law, specific terms and conditions of exercise thereof are determined by respective contracts. In particular, easement is one of those rights. As per Subclause 5.9, Clause 5, Section IV of the Road Map for Development of the Russian Civil Law generally any easement shall be regulated by a written agreement executed by the parties concerned. If there is no such agreement, it may arise from a court order which in that case replaces any agreement as aforesaid.

Moreover, pursuant to paragraph 5, Article 301.1 of Draft Federal Law No.47538-6 On Amendments Made in Part 1, 2, 3 and 4 of the Civil Code and Certain Regulations of the Russian Federation (the “Draft Law”) [3] the type, applicable terms and conditions (i.e. its place within the boundaries of any secondary item, time and frequency) and fee due and payable for the same shall be agreed by an owner of the secondary item and that of the primary item and in case any dispute arises by a court of competent jurisdiction.

As a rule, restricted property rights arise and are exercised by an easement holder under any relevant contract, rather than directly pursuant to any legal provision. A contract is undoubtedly deemed a basis for accrual of an easement pursuant to any specific legal provision, and this one would think is actually a basis provide for by the Civil Code of the Russian Federation. However, in that case the effect of any contract as a basis for accrual of any respective legal right may be disregarded, thus being in conflict with the principal terms of civil transactions.

The similar basis is used where a building leasehold is concerned. As per paragraph 3, Subclause 6.3, Clause 6, Section IV of the Road Map for Development of the Russian Civil Law (which specifies that a building leasehold arises under any relevant contract from the date of state registration) and Clause 4, Article 300 of the Draft Law (which states that a building leasehold with respect to any relevant land plot is subject to state registration and arises under a contract which establishes that right) to the extent having regard to a building leasehold restricted property rights available to a holder of a building leasehold arise pursuant to applicable law rather than a contract.

Another feature typical of property rights and stated in the Road Map for Development of the Russian Civil Law is a list thereof which is introduced exclusively by the Civil Code of the Russian Federation, on the one hand represents the law makers’ intent to protect by law an exhaustive list of property rights and on the other just specifies where this list can be found. As rightly been said by Z.A. Akhmetyanova, availability of an exhaustive list can hardly be deemed a feature of any legal right whatsoever [4].

In our opinion, the third feature of property rights (i.e. the content of property rights and the way these are to be exercised in is determined by the Civil Code of the Russian Federation and to the extent of exercise thereof as well by laws enacted thereunder) defines more of a way the extent of exercise of available rights and discretions by the holders thereof, use and in certain scenarios disposal of property rights and that feature is as well typical of legal rights (encumbrance of landlord’s rights etc).

Moreover, the Road Map for Development of the Russian Civil Law highlights a regulation which shall define the content of and the way property rights are to be exercised in. Therefore, the third feature is essentially a reference rule which does not provide insight into property rights.

As far back as 2000 V.P. Kamyshansky maintained that the extent of exercise of the right of ownership was defined not only by applicable law, but as well by a set of consumer attributes typical of respective property and owner’s interests. Thus, the investigator emphasized as many as three attributes which defined the extent of exercise of rights [5]. V.E. Karnushin interpreted this legal category in a different way and suggested that internal characteristics of rights should be deemed the ‘extent’ thereof. As soon as this extent is identified, specific rights could be distinguished  from other rights with proper emphasis placed thereon. However, V.E. Karnushin as well denoted that rights were restricted for different purposes (social, economic or other public and personal purposes) [6].

The fourth feature of property rights as per the Road Map for Development of the Russian Civil Law is a statement that property rights place a burden upon any relevant thing or property, thus giving a holder thereof the right to dispose thereof at his or her own discretion and these rights are transferred along with the same. However, is it really reasonable to suppose that availability of encumbrance placed over any property or transfer thereof is typical of the right of ownership as the amplest one among all property rights?

We believe that encumbrance shall be deemed only as a precondition for exercise of the right of ownership, for example, as far as a trust is concerned. As such, since no one can definitely say that encumbrance is typical of any right of ownership, this feature shall not be applied generally to all property rights.

The Road Map for Development of the Russian Civil Law outlines a well-known rule that all property rights take priority over other proprietary rights related to any property or thing as a specific feature thereof. We disagree with reasonableness of that feature as well. Whether one proprietary right takes priority over another one or not is a question of precedency which is regulated by applicable law and not an intrinsic feature thereof which primarily depends on remedies vested by law makers with a holder of specific rights rather than their content.

It bears repeating that availability of proprietary protection which may be used upon infringement of property rights as a feature which distinguishes property rights from other legal civil rights [7] in our understanding results in a strict sense from qualification of property rights. In other words, only when any respective right is qualified as a property right its holder may use specific remedies stipulated by applicable law.

The Road Map for Development of the Russian Civil Law as well specifies another feature of property rights which is defined as a ratio of authorities available to an owner of any relevant item and that of restricted property rights regulated by rules or regulations applicable to specific property rights. Once again, we emphasize that this provision is a rule applicable to law makers. It is a reference rule designed to assist in structuring provisions covering property rights which deals with no substantial features thereof.

As to the last-mentioned eighth feature of property rights introduced by the Road Map for Development of the Russian Civil Law (i.e. property rights related to real estate subject to state registration and arise as from their registration date), it is worthwhile to say the following. In an effort to describe distinctive features of property rights by way of introducing a set of attributes typical thereof, authors of the Road May for Development of the Russian Civil Law created conditions when one attribute of property rights so specified was absorbed by another one. Thus, a provision specifying that property rights related to real estate are subject to state registration and arise only as soon as any relevant property is duly registered, is a scenario addressed by a provision whereby property rights arise and expire for any reason whatsoever provided by the Civil Code of the Russian Federation. Neither collectively nor separately these cannot be deemed distinctive features of property rights.

Therefore, a list of features which are supposedly typical of property rights only is to be deemed inaccurate. However, not all attributes of property rights listed in the Road Map for Development of the Russian Civil Law as mandatory features thereof are addressed in the Draft Law. Thus, in the definition of ‘property rights’ in Article 221 there are only eight attributes and certain features (unavailability of a term applicable to property rights etc) have not been originally specified in the Road Map for Development of the Russian Civil Law.

In particular the following features of property rights are stipulated in the Draft Law:

1) Property rights place burden on any relevant thing or item directly and are transferred along with the same (paragraph 2, Clause 1, Article 221);

2) Property rights have no pre-determined term of validity, unless specified otherwise in the Civil Code of the Russian Federation (paragraph 2, Clause 1, Article 221);

3) No loss of possession shall terminate respective property rights (paragraph 3, Clause 1, Article 221);

4) Property rights are protected from infringement by any person whatsoever (paragraph 4, Clause 1, Article 221);

5) Property rights are those specified in the Civil Code of the Russian Federation (Clause 2, Article 221);

6) Respective holders, property covered by rights and their content, basis for accrual and termination of property rights as well as the way these are protected in shall be in line with the Civil Code of the Russian Federation (paragraph 1, Clause 3, Article 221);

7) Property rights shall be exercised in strict compliance with the Civil Code of the Russian Federation or any other law whatsoever whenever provided by the Civil Code of the Russian Federation (paragraph 2, Clause 3, Article 221);

8) The rules which govern the way property rights are to be exercised in may be amended only as agreed by the parties concerned and to the extent provided by the Civil Code of the Russian Federation (Clause 4, Article 221).

It should be noted that such attributes of property rights as accrual and termination thereof for any reason whatsoever specified in the Civil Code of the Russian Federation and a mandatory list of property rights introduced by the Civil Code of the Russian Federation only etc. have been included in the Draft Law due to availability thereof in the Road Map for Development of the Russian Civil Law.

Actually, the following well-known attributes of legal property rights are not in a strict sense their distinctive features [8]:

– Transferability;

– Absolute protection;

– Right of a holder of property rights to exercise the same with preference over other contractual rights;

– Right of a holder of property rights to exercise the same with preference over another holder of property rights, other than ranking in priority thereto.

We suppose that such attributes as absolute protection and transferability shall be deemed the legal result of classification of legal civil rights as property rights. These features by their nature are attributes which characterize the internal state of property which becomes apparent when it is used. However, since features which define any respective category of property rights are not specified in applicable law, civil law scholars considered them to be attributes which describe specific features of property, thus allowing it to distinguish the same from the other being similar thereto in terms of the form, content and other characteristics.

Therefore, due to unavailability of statutory criteria which may be used to distinguish the law of property from the law of obligation features of property rights are replaced by consequences of classification, including but not limited to, absolute protection, thus resulting in a loss of practical relevance of a category of property rights and classification itself.

In this context we believe that statement made by O.A. Krasavchikov is still relevant. He said that this approach created the situation when ‘classification of civil-law relations with emphasis on property and contractual rights which was well known to legal science was recently disregarded’ [9]. A.O. Rybalov supported the researcher and said that this statement which had been made as far back as 1958 remained up-to-the-minute since legal science failed to prove a vital need for a clear distinction between property and contractual rights [10].

Therefore, upon formal and logical analysis it becomes apparent that the aforelisted features of items being subject to property rights represent the impact which only two independent attributes of property rights have, namely:

– Absoluteness of legal property rights; and

– A distinctive tangible object of property rights, i.e. property which may be identified by its individual features.

The first attribute (absoluteness of legal property rights) means that:

  • There are no predefined persons involved in legal relationship;
  • No person may infringe those rights;
  • Any person may be liable for infringements of property rights;
  • Available remedies may be used against any and all persons infringing property rights;
  • Property rights are established irrespective of the discretion of any third party whatsoever.

The second feature of legal property rights which is deemed fairly independent is availability of a distinctive tangible object of property rights, i.e. property which may be identified by its individual features.

Other attributes of legal property rights identified by civil law scholars, including but not limited to, perpetuity, priority over contractual rights, transferability and proprietary protection etc. cannot be deemed really independent and result from fairly independent features of property rights.

In view of the foregoing features the right of ownership shall be classified as property rights in the first place. The holder of this right related to any relevant property actually exercises the amplest authorities and discretions provided by applicable law.

The insight into the right of ownership is given in Clause 1, Article 209 of the Civil Code of the Russian Federation through the right of possession, use and disposal of property. The ‘right of possession’ generally means that a holder may have on his or her balance sheet or use in his or her business any relevant property (although it should be noted that this definition is not completely correct). The ‘right of use’ generally means availability of any respective property for operation and potential advantages which may be gained therefrom. The ‘right of disposal’ generally means a legally enforceable right to decide the destiny of any relevant property.

Meanwhile, determination of the content of property rights is not limited to establishment of authorities only. Thus, at some point an owner may forfeit his or her right of use or possession, if any relevant property is stolen, for example. Moreover, consider the case of a municipal unitary enterprise which is based on the right of economic jurisdiction and combines all three authorities, i.e. the right of use, possession and disposal which may be exercised in relation to any product manufactured by the same.

Pursuant to Clause 2, Article 209 of the Civil Code of the Russian Federation an owner may perform any act with respect to any property held by the same at his or her own discretion other than being in conflict with applicable law or infringing rights and legally protected interests of any third party whatsoever.

Therefore, on the one hand an owner may transfer the right of possession or the right of possession and use or the right of use only to any third party whatsoever, transfer the right of ownership or pledge his or her property in favour of any third party or otherwise encumber the same and finally destroy or dispose thereof otherwise at his or her own discretion.

On the other hand, there are certain restrictions applicable to an owner to the extent having regard to exercise of his or her right of ownership. In particular, an owner shall not perform any act which is in conflict with applicable law and moreover infringes any of the rights and legally protected interests of any third party whatsoever.

Thus, any act performed by an owner with respect to any property owned by the same is of absolute nature and independent of any act or omission of any third party.

Property rights (other than the right of ownership) cover other rights as well which are restricted vs the right of ownership and called ‘jus in re aliena’. As such, principally property rights are grouped into absolute (right of ownership) and restricted or other property rights.

Classification of property rights will be incomplete, if an issue having regard to a list of property rights is left undecided (whether it is to be exhaustive or not or features of property rights may be specified in the law only which once available enable any relevant right to be classified as a property right).

Nowadays, a list of property rights introduced by the Civil Code of the Russian Federation is not exhaustive.

As per Clause 1, Article 216 of the Civil Code of the Russian Federation, in addition to the right of ownership there are in general five types of restricted property rights, namely:

– Right of operational control over property (see Article 296 of the Civil Code of the Russian Federation);

– Right of property economic management (see Article 294 of the Civil Code of the Russian Federation);

– Right of permanent or perpetual use of a land plot (see Article 268 of the Civil Code of the Russian Federation);

– Right of lifetime ownership of a land plot with the right of inheritance (see Article 265 of the Civil Code of the Russian Federation);

– Easement (see Article 274 and 277 of the Civil Code of the Russian Federation).

Section IV (Restricted Right of Use of Land Plots Owned by Third Parties (Easement). Land Lease and Uncompensated Use of Land Plots) of the Land Code of the Russian Federation specifies provisions which on the one hand regulate property rights and on the other govern contractual rights, including leasehold.

Irrespective of the fact that both the right of permanent of perpetual use and that of lifetime ownership of a land plot with the right of inheritance are specified by law makers in the Land Code of the Russian Federation, the foregoing Section fails to legally regulate the aforementioned rights. Neither the scope of respective rights and discretions which describe the content thereof is given nor definitions are made available. Respective provisions generally govern the procedure for termination of those rights only.

Therefore, law makers reject legal regulation of property rights specified in the Land Code of the Russian Federation and related to land plots. There is no clear understanding of whether the right of  lifetime ownership of a land plot with the right of inheritance is transferred to lawful heirs or not, since there are no relevant provisions in the Land Code of the Russian Federation.

In addition to the foregoing, Article 24 of the Land Code of the Russian Federation provides for the right of uncompensated use of a land plot. However, this rights is not directly referred to by law makers as a property right. Article 23 of the Land Code of the Russian Federation deals with legal restricted property rights and introduces certain rules which must be adhered to when a land plot is subject to an easement.

Thus, the Land Code of the Russian Federation regulates only one of the three restricted property rights specified in the Civil Code of the Russian Federation.

Section 2 (Right of Ownership and Other Property Rights to Residential Premises) of the Housing Code of the Russian Federation in addition to the right of ownership as well provides for other restricted rights not specified in the civil law. These include the right of use of residential premises:

– By any person sharing residence with the owner and living in the same accommodation (see Article 31 of the Housing Code of the Russian Federation);

– Granted under a testamentary renunciation (see Article 33 of the Housing Code of the Russian Federation);

– Granted under a life estate agreement (see Article 34 of the Housing Code of the Russian Federation).

We classify the aforelisted rights as restricted property rights since these are listed in Section 2 (Right of Ownership and Other Property Rights to Residential Premises) of the Housing Code of the Russian Federation. However, no proprietary remedies are directly specified in the Housing Code of the Russian Federation in terms of protection of those rights [11].

Perhaps, there may be opponents of this approach. Thus, pursuant to Clause 4, Article 31 of the Housing Code of the Russian Federation upon termination of marital relations with the owner of any relevant dwelling unit the right of use thereof is not retained by a former family member.

So, how should one deal with the resale right which is attributable to each restricted property right? Some investigators in addition to the aforelisted rights classify mortgage; a right of an institution to dispose of its assets at its own discretion; leasehold; a right of an actual user other than an owner managing any relevant property in good faith, transparently and continuously as if it is his or her own property; and usufruct as property rights as well.

Authors of the Road Map for Development of the Russian Civil Law propose that an exhaustive list of property rights shall be legally introduced by the Civil Code of the Russian Federation and include the following:

– Right of lifetime ownership of a land plot owned by the state or any respective municipality with the right of inheritance;

– Right of permanent or perpetual use of a land plot owned by the state or municipality (these property rights as mentioned before are throwbacks available in the existing Land Code of the Russian Federation);

– Right of permanent ownership or use of a land plot (emphyteusis);

– Right of land plot development (superficies);

– Easement;

– Right of personal use (usufruct);

– Mortgage or any other duly registered or recognized lien;

– Right of purchase of real estate owned by any third party whatsoever;

– Right to be allocated a certain part of value of any relevant property;

– Right of operative control over property owned by the state or municipality.

Clause 2, Article 223 of the Civil Code of the Russian Federation as amended by the Draft Law provides for the following restricted property rights:

– Right of permanent land use (see Article 20 of the Civil Code of the Russian Federation);

– Building leasehold (see Article 20.1 of the Civil Code of the Russian Federation);

– Easement (see Article 20.2 of the Civil Code of the Russian Federation).

– Right of personal land use (see Article 20.3 of the Civil Code of the Russian Federation);

– Mortgage (see Article 20.4 of the Civil Code of the Russian Federation);

– Right of purchase of real estate owned by any third party whatsoever (see Article 20.5 of the Civil Code of the Russian Federation);

– Right to be allocated a certain part of value of any relevant property (see Article 20.6 of the Civil Code of the Russian Federation);

– Right of operative control (see Article 20.7 of the Civil Code of the Russian Federation); and

– Right of restricted use of a land plot (see Article 297.1 of the Civil Code of the Russian Federation).

Russian law makers failed to include the right of permanent or perpetual use and the right of lifetime ownership of a land plot with the right of inheritance in the list of restricted property rights. However, the existing rights of permanent or perpetual use and lifetime ownership of land plots with the right of inheritance are not terminated. In fact, proper conditions are created to compel a right holder to waive his or her property rights and in contrast enjoy the right of ownership or leasehold.

E.A. Sukhanov highlights only three categories of property rights which exist pursuant to German law [12], namely:

– Right of use of property owned by any third party;

– Right to be allocated a certain part of value of property owned by any third party; and

– Right of purchase of a well-known item.

As to the national civil law, E.A. Sukhanov denotes that ‘a set of restricted property rights and respective system available in the existing civil law in Russia is not consistent with a conservative approach. Meanwhile, only the first group of rights listed hereinabove is undoubtedly accepted by the national system of justice’ [13].

However, the three types of relationship classified by E.A. Sukhanov as property rights cannot not be always referred to as such [14]. Thus, not only a thing may be made subject to mortgage, while value may be allocated with respect to any other property, other than a thing. Therefore, there is no definitive reason to deal with these property rights as a single category, except when expressly provided otherwise by applicable law.

Moreover, as rightly been said by A.O. Rybalov ‘when we talk about civil traditions, is it possible for the law of pandects to take priority over the Roman law when considering private law issues?’ [15]

However, authors of the Road Map for Development of the Russian Civil Law in terms of adding new items to the list of property rights adopt approaches available in the law of pandects rather than the Roman law. Perhaps, this is due to the fact that the former satisfies the needs of the modern civil commerce in Russia better.

The Road Map for Development of the Russian Civil Law introduces a comprehensive list of property rights which in fact are grouped into three traditional categories addressed in detail by E.A. Sukhanov, namely:

– The right of use of property owned by any third party is represented by the right of lifetime ownership of a land plot with the right of inheritance, right of permanent or perpetual use of a land plot, right of land plot development, right of personal use and easement;

– The right to be allocated a certain value of property owned by any third party is represented by the similar right and the right of permanent possession and use of a land plot; and

– The right of purchase of a well-known item is represented by the right of purchase of real estate owned by any third party whatsoever.

The only property right available in the Road Map for Development of the Russian Civil Law and in our opinion not included in any of the aforelisted groups is mortgage or any other duly registered or recognized right. However, this has nothing to do with the fact that an exhaustive list of property rights introduced by the Road Map for Development of the Russian Civil Law may have three groups or categories of rights available in the German law of property, since as one of the branches of the civil law it is traditionally deemed the closest to the Russian law, thus often resulting in express reception of respective legal provisions.

In the meantime, civil law relations develop continuously and an exhaustive list may prevent and impede efficient exercise of civil rights and legal protection thereof. In support of this conclusion we may give an example from the legal precedents of the Supreme Commercial Court of the Russian Federation [16] whereby a contract when a person places advertising on the roof of a building owned by a third party is not deemed a rental agreement.

Unfortunately, the Supreme Commercial Court of the Russian Federation failed to address the issue having regard to the nature thereof, thus putting practising lawyers in a bind. As a result, issues related to identification of a legal nature of agreements for ATM installation or contracts for use of parking spaces etc. remain unresolved. These are not exclusive examples when certain rights cannot be definitely classified as property rights exactly due to the fact that applicable law introduces neither an exhaustive list of property rights nor clear criteria which may be used as substantial attributes of property rights, thus finally distinguishing property rights from other legal rights.

As noted by A.O. Rybalov any right which regulates duly authorized possession and/or use of any property owned by any third party whatsoever shall be always deemed a property right. Therefore, such law shall have absolute protection or be subject to transferability, unless provided otherwise by applicable law (rights of family members of an owner of a dwelling unit etc) [17]. The foregoing persons shall be entitled to use property owned by another person and this right shall of an absolute nature (see Clause 3, Article 292 of the Civil Code of the Russian Federation). However, pursuant to Clause 2, Article 292 of the Civil Code of the Russian Federation as soon as the right of ownership of a dwelling unit is transferred to a third person the right of use thereof by other family members shall be terminated, unless provided otherwise by applicable law.

As far as property rights are concerned, it is also essential to mention the one-of-the-kind opinion offered by D.A. Malinovsky. He suggests that a conservative approach whereby property rights cover things and contractual rights regulate actions performed by a person assuming respective obligations is not true [18], since, first, this definition is a kind of legal naturalism as any rule of social behaviour may have impact on conduct of people only and not on anything else. Second, recognition by anyone covered by rights of actions performed by the parties to civil law transactions results in equation thereof, since a holder cannot be treated separately from his or her actions. Finally, as is argued by D.A. Malinovsky, the existing rules which consider things and actions as items covered by civil rights will enable establishment of legal relationship without holders or property covered by respective rights, since frequently there are legal relations where no physical holder or property exists.

In view of the foregoing, D.A. Malinovsky believes that rights without holders are obviously senseless. However, the arguments brought forward by the investigator are in conflict with his own conclusions. Thus, he states that ‘there is no single reason to use a definition of an object category which is different from that applied in the philosophy. In the philosophy an object is an item suffering from any event. Therefore, a similar approach shall be adopted in the legal science as well’ [19].

This statement could be accepted, but a question arises how should the foregoing observation be treated whereby recognition of things as items covered by property rights is wide open to criticism? If one leans towards scholasticism D.A. Malinovsky was seeking to avoid, it could be said that property rights apply to behaviour of people related to specific items. However, as we have already mentioned before, property relations are static.

It is appropriate at this point to recall the opinion offered by A.I. Zyryanov, T.A. Mechetina and V.A. Rybakov who disagreed with authors perceiving possession as an actual control over certain things, since the term ‘control over an item’ is unacceptable for an approach where exclusively relationship among holders of rights are considered and which does not recognize any relationship between an item and a holder thereof. A.I. Zyryanov, T.A. Mechetina and V.A. Rybakov also emphasize that possession is not only an actual enjoyment with respect to any specific thing or item, but as well a real opportunity to use it. Moreover, there is no legal bearing in the fact whether a holder actually possesses a thing or not.

As became apparent upon investigation so performed, the aforementioned authors conclude that possession does exist where and when there is a real opportunity to use any relevant thing. Further, an opinion as to the interdependence of such legal categories as enjoyment and right of possession is set forth forcefully. In particular, it is noted that the right of possession is available only to a holder who is able to seek protection of his or her rights once these are infringed [20].

We do not intend to challenge this approach. Let’s just make certain clarifications. Thus, there is no doubt that control over any specific thing is characterized by certain actions performed by any relevant person, i.e. it is not his or her attitude towards a thing, but rather actual actions performed by the same at his or her own discretion and for his or her own benefit. We may confirm an opinion offered by E.A. Sukhanov that ‘property rights ensure control of a person over a thing and not over conduct of any other person who assumed any respective obligation (as is the case with contractual rights)’ [17].

Thus, qualification of conduct of any person as that covered by property rights and not things gives rise to a number of questions. How will this rule apply (in particular, with respect to things which do not have any holder) and how will things be qualified, if according to D.A. Malinovsky these are not subject to property rights? Unfortunately, the opinion offered by D.A. Malinovsky gives no answer neither to this nor any other question as well.

We believe that such a confusion in scientific approaches is due to a weak legal framework to the extent having regard to property rights and their categories (relative, absolute, distinct and legal), including but not limited to, legal property rights. This deficiency is available as well in the Road Map for Development of the Russian Civil Law which fails to specify clear definitions of the terms ‘thing’ and ‘items covered by property rights’.

In view of the foregoing we believe that the law shall introduce a non-exhaustive list of property rights. Moreover, criteria which represent specific features of property rights shall be specified, thus enabling it to distinguish the same from other legal rights. Therefore, we deem it advisable to draw the following conclusions:

  1. A list of legal property rights provided by law shall be non-exhaustive. Moreover, the law shall specify features of those rights, thus enabling it to clearly distinguish property rights from other legal rights. We suggest the following qualification attributes which may be adopted by law makers:

1.1. Absoluteness of legal property rights which means that:

– There are no predefined persons involved in legal relationship;

– No person may infringe those rights;

– Any person may be liable for infringements of property rights;

– Available remedies may be used against any and all persons infringing property rights;

– Property rights are established irrespective of the discretion of any third party whatsoever.

1.2. Availability of a distinctive tangible object of property rights, i.e. property which may be identified by its individual features.

List of References

  1. Road Map for Development of the Russian Civil Law (approved on 07 October 2009 by the Presidential Council for Codification and Enhancement of Civil Legislation)// Bulletin of the Supreme Commercial Court of the Russian Federation. — 2009. — 11th edition.
  2. For more details see I.Y. Pronkina. Comparative Analysis of the Definition and Features of Property Rights in the Civil Law of Germany and Russia // Politics, State and Law. 2014. 6th edition [electronic resource]. URL: http://politika.snauka.ru/2014/06/1747.
  3. Draft Federal Law No.47538-6 On Amendments Made in Part 1, 2, 3 and 4 of the Civil Code and Certain Regulations of the Russian Federation (by Resolution No.1150-6GD of the State Duma of the Federal Assembly of the Russian Federation of 16 November 2012 it has been subdivided into nine parts and each of them shall be adopted as a separate Federal Law) // ConsultantPlus Legal Reference System.
  4. A. Akhmetyanova. Enhancement of the Law of Property // Russian Justice. — 2009. — 9th edition. — pp. 8-9.
  5. P. Kamyshansky. Limits and Restrictions Applicable to the Right of Ownership: Monograph. — Volgograd: Volgograd Academy of the Ministry of Internal Affairs of Russia. — 2000. — p. 35; idem: Restrictions Applicable to the Right of Ownership and Upgrade of Property Rights Granted by the Civil Code of the Russian Federation // Civil Law. — 2013. — 5th edition. — pp. 2-5.
  6. E. Karnushin. Absolute Legal Relationship of the Right of Ownership from the Perspective of Available Restrictions // Rule of Law. — 2014. — 1st edition. — pp. 91-101.
  7. For more details as to the definition and substance of legal civil rights inter alia see O.M. Rodionova. Mechanism of Civil Law Regulation in the Context of Modern Private Law. — М.: Statute, 2013. — p. 336.
  8. Results of Analysis of Property and Proprietary Rights. See Anderson. Property rights. — Hoover press. — 2009. — p. 116.
  9. A. Krasavchikov. Legal Facts in the Soviet Civil Law. — М. : Gosjurizdat, 1958. — p. 171.
  10. O. Rybalov. Restricted Property Rights: Definition Issues // Law. — 2007. — 2nd edition. — pp. 115-124.
  11. Civil Law: Text Book / Editor-in-Chief E.A. Sukhanov. — Volume 2 — М. : Walters Cluver, 2005. — p. 146.
  12. For more details inter alia see A. Makhinya. System of Property Rights Introduced by the Amendments Made in the Civil Code of the Russian Federation // Bulletin of the Omsk Law Academy. 2016. 1st edition (30).
  13. See A.O. Rybalov. Possession by a Lessee and Keeper [electronic resource] // Commercial Disputes. — 2005. —2nd edition / ConsultantPlus Legal Reference System.
  14. See Review of Precedents Related to Resolution of Rental Disputes: Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation, 11 January 2002, 66th edition // Bulletin of the Supreme Commercial Court of the Russian Federation. — 2002. — 3rd edition [electronic resource] // GARANT Legal Reference System.
  15. See A.O. Rybalov. Possession by a Lessee and Keeper [electronic resource] // Commercial Disputes. — 2005. —2nd edition / ConsultantPlus Legal Reference System.
  16. A. Malinovsky. Pressing Issues Related to the Category of Legal Property Rights: thesis research. PhD in Law. — М., 2002. — p. 38.
  17. A. Malinovsky. Pressing Issues Related to the Category of Legal Property Rights: thesis research. PhD in Law. — М., 2002. — p. 38.
  18. I. Zyryanov, T.A. Mechetina and V.A. Rybakov. Substance of Possession and Specific Issues Related to Restrictions Applicable to the Right of Ownership // Lawyer. — 2014. — 19th edition. — pp. 16-21.
  19. A. Sukhanov. Definition and Types of Property Rights in the Russian Civil Law // Russian Law Journal. — 2006. — 12th edition. — pp. 42-50.