The Right of Ownership in the
Contemporary Civil Law of Russia
Evgueny A. Sukhanov”
This article provides an overview of the current
legal regime governing property rights in the Russian
Federation. The fall of communism and consequent
rise of a market economy in Russia created a need for
reformulating of the concept of ownership, as under-
stood in both economic and legal contexts. In this arti-
cle, the author briefly traces the legislative evolution of
this concept, then focuses on its current articulation in
the Civil Code of the Russian Federation (“C.C.R.F”)
as a central feature in a broader system of rights in rem.
In particular, the article discusses the forms in
which ownership may exist, describing the associated
rights and duties, as well as the types of objects that
may be held in each form of ownership. Private owner-
ship, as a recent innovation in Russian law, is carefully
examined and contrasted with the reworked structures
of public ownership that the C.C.R.F. also sets out. Fi-
nally, the author identifies remedies that exist in the
event of a violation of either private or public rights of
ownership.
Cet article pr~sente une vue d’ensemble du r6-
gimejuridique actuel gouvemant les droits de propri6t6
dans la F~dration russe. Le d~clin du communisme et
l’ascension cons~quente d’une dconomie de march6 en
Russie a crd6 la n cessit6 de red6finir le concept de
propriet, tel qu’il est compris dans les contextes juridi-
que et 6conomique. Dans cet article, l’auteur trace
bri~vement l’6volution l6gislative de ce concept, puis
se concentre sur son articulation courante dans le Code
civil de la Feddration nsse comme 6tant une caract6-
ristique centrale dans un syst~me plus vaste de droits in
rem.
Cet article discute en particulier des diverses for-
mes dans lesquelles le droit de propri6t6 peut exister. I1
d6crit les droits et obligations associ6s au droit de pro-
pri6t6, ainsi que les types de biens pouvant faire l’objet
de chaque forme de droit. Le droit de proprit6 priv6,
innovation r~cente en droit russe, est attentivement
examin6 et compar6 aux structures r~cemment amen-
dies du droit de propri6t6 public dans le Code civil. Fi-
nalement, I’auteur identifie les remMdes qui existent en
cas de violation d’un droit de propri6t6 priv6 ou public.
. Professor, Moscow State University.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 301
Mode de r6fdrence: (1999) 44 R.D. McGill 301
302
MCGLL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
Introduction
I. The Right of Ownership
II. Private and Public Ownership
A. Private Ownership
B. Public Ownership
I11. Termination of the Right of Ownership
IV. Remedies
References
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
303
Introduction
Russia’s shift from a communist regime to a market economy has resulted in a
fundamental change with respect to how the concepts of property and ownership are
understood within different economic systems and how they are expressed in law. To
this end, the legislative formulation of the right of ownership has undergone significant
changes through the adoption of laws which now govern these types of legal relations.
This evolution can be traced through a series of legislative enactments. The law On
Ownership’ in the U.S.S.R. was the first law formulating new approaches to the right of
ownership. Subsequently, the Federal law On Ownership considerably expanded and
developed the approaches of the previous law. Next was the implementation of section
2 of the Fundamentals of Civil Legislation of the US.S.R. and Union Republics which
is applicable in the territory of the Russian Federation to the extent that it does not run
contrary to new Russian laws. Lastly was Division 2 of the new Civil Code of the Rus-
sian Federation4 of 1994.
During this period of development, the political declarations and statements that
were characteristic of the old approach to law-making were abandoned. Instead, new
legal concepts and structures were canvassed in the new legislation. This new frame-
work also established a diversity of property rights which were not limited to the right
of ownership. In the Federal law On Ownership of 1990, the legislator for the first time
abandoned the economic categories of the “forms of ownership”–a tendency that be-
came more explicit in the rules enacted as the Fundamentals-and the right of owner-
ship itself became an integral part of a broader concept of rights in rem. Thus, the con-
temporary civil law concept of real rights-the right of ownership being the most im-
portant right-was established in law. In essence, this concept reflects a clear distinc-
tion between the economic and legal understandings of the relations to which owner-
ship gives rise.
Ownership is understood as an economic or factual relationship subject to legal
formalization. First, ownership implies a human relationship to specific things. Such
property is appropriated by one individual, the owner, to the exclusion of all others.
Second, the concept of ownership also includes the attitude of the owner to the appro-
‘ Vedomosti S”ezda Narodnykh Deputatov S.S.S.R. i Verkhovnogo Soveta S.S.S.R. (1990) No. 11,
item 164.
2 Vedomosti S”ezda Narodnykh Deputatov R.S.ES.R. i Verkhovnogo Soveta R.S.ES.R. (1990) No.
30, item 416.
3 Vedomosti S”ezda Narodnykh Deputatov S.S.S.R. i Verkhovnogo Soveta S.S.S.R. (1991) No. 26,
item 733 [hereinafter Fundamentals]. Today in the territory of the Russian Federation, until Part 3 of
the C.C.R.F. is adopted, ss. 6 and 7 of the Fundamentals, which deal respectively with the law of in-
heritance and private international law, are still in effect.
4 Part 1 was enacted in 1994: Sobranie zakonodatelstva R.E (1994) No. 32, item 3301; and Part 2
was enacted in 1995: Sobranie zakonodatelstva R.E (1996) No. 5, item 410 [hereinafter C.C.R.F.].
For the English-language translation, see PB. Maggs & A.N. Zhiltsov, eds., The Civil Code of the
Russian Federation, trans. RB. Maggs & A.N. Zhiltsov (Armonk, N.Y.: M.E. Sharpe, 1997).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[10l. 44
priated property, since people treat their own property differently from property be-
longing to others. The law must therefore address these two critical aspects of the own-
ership equation: the relations of property owners to third parties, and the owner’s power
over the property itself.
At the same time, it is important to recognize that the objects of ownership are
commodities which, in a free market, may include not only things, but also the fruits of
work and services. Such objects include commodities of non-material value and the
non-material products of creative activity, as well as other rights! Civil law relations in
these matters can involve not only real rights, but also personal rights-i.e., obliga-
tions-and exclusive rights-i.e., patents and trademarks. Even under the heading of
real rights alone, the relations one might have to property are not limited to the right of
ownership. In other words, a commodity in the economic sense does not always con-
stitute an object of the right of ownership in the law. Only individually determined
things form the objects of ownership.
Economic relationships resulting from an appropriation occur in various forms de-
pending on whether the entity that appropriates a thing is an individual, a group or
collective, the State, or society at large. Thus there are individual, group, public, and
mixed forms of appropriation. These economic forms of appropriation are traditionally
called “forms of ownership”. A form of ownership is an economic concept, not a legal
one. In proclaiming the recognition and equal protection of private, public, and other
“forms of ownership”, article 212(1) C.C.R.F. evokes economic categories, not legal
ones. The private form of ownership, also in the terms of the Constitution of the Rus-
sian Federation, is a concept for the appropriation by any private non-state, non-public
persons, distinguished in this sense from public or communal appropriation (state and
municipal or public ownership).’
The transfer of property under a market economy requires, as a matter of principle,
that commodity owners have equal rights of alienation and acquisition in relation to
property. Therefore, the principle of equality among all forms of ownership, which is
of an economic and not of a legal nature, becomes necessary. However, to provide for
the “equality of all forms of ownership” in the legal sense is impossible. For instance,
any property, including that which is withdrawn from commerce, may be held under
state ownership. The State may acquire such property in ways that are not available to
physical persons and legal entities, for example, by way of taxes, duties, seizure, con-
fiscation, and nationalization. On the other hand, legal entities and public legal bodies
For instance, those formalized in the form of securities or a deposit with a credit organization.
The Federal law On Ownership specified “the right of ownership of public organizations:’ along
with the right of private ownership of individuals and legal entities. Today, according to art. 213(4)
C.C.R.F., legal persons, including political parties, are private owners of the property belonging to
them.
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
are liable for their debts upon all their property, whereas individuals benefit from cer-
tain exemptions established by law.7
As such, article 212 C.C.R.F. mentions only the “recognition” of different forms of
property and the equal protection of the rights of all owners, but not “the equality of all
forms of property” as provided for under the U.S.S.R. law On Ownership. The equality
of private and public owners is manifested through the recognition of equal legal ca-
pacity. This equality is further demonstrated by the ability of private owners, both indi-
viduals and legal entities, to own any property except property withdrawn from com-
merce or limited in commerce by law. Such property is not limited either in quantity or
value, unless such limitations are established by law for the public benefit.’ Moreover,
the advantages and protections given to public owners under the former legal regime
are absent from the new C.C.R.F.
The right of ownership is the most comprehensive right, giving the broadest legal
power over property. Yet ownership is not the only right in rem; there are other more
limited real rights, all sharing characteristics with the right of ownership! First, all real
rights formalize the relationship between a person and a thing, according the person an
opportunity to use the thing in his own interests without the participation of other per-
sons. Second, real rights may be invoked to protect other types of rights. For example,
in the setting of contractual obligations, the person claiming the right to performance
may satisfy his interest through some type of claim over real property. Real rights are
protected by the specific features they exhibit. Finally, only individually determined
things may be the object of real rights. If the specific thing is destroyed or lost, all real
rights associated with it are automatically terminated. This differs from the law of obli-
gations where the object is to control the conduct of the debtor. Where the debtor dies,
the obligation is not extinguished, and it may be passed on to other persons through the
mechanism of legal succession.
As long as the property exists, limited real rights continue to exist even if the
owner of the property changes, for example, if the thing is sold or transferred by suc-
cession. Thus, real rights encumber a thing; they follow the thing, not the owner. This
“right to follow” is thus another characteristic feature of real rights. However, limited
real rights are of a derivative nature, dependant on the right of ownership as the basic
real right. Therefore, in the case of absence or termination of the right of ownership to
a thing, it is impossible to establish or retain a limited real right over it as in the case,
for example, of ownerless property. Finally, because limited real rights usually arise in-
dependently from the will of the owner, the nature and content of these rights is deter-
mined by law, not by contract. Therefore, the law itself establishes all the types of lim-
ited real rights and determines their scope and content. This results in the law fixing an
‘ Annex I of the Code of Civil Procedure of the Russian Federation, Vedomosti S”ezda Narodnykh
Deputatov R.E i Verkhovnogo Soveta R.E (1964) No. 24, item 407, as am. by Sobranie zakonodatel-
stva R.E (1995) No. 49, item 4696.
Art. 213(I), (2) C.C.R.F.
9 Art. 216 C.C.R.E
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exhaustive list, or numerus clausus, of limited real rights. Contracting parties can nei-
ther create a new right yet unknown to the law, nor can they change the scope of any
existing real right.
Under Russian civil law, the objects of all limited real rights, with the exception of
the pledge and the right of retention, are immovable objects. These rights can be di-
vided into three groups. The first group contains the real rights of certain legal entities
over the economic activity of property owned by another. These are the rights of eco-
nomic management” and of operative administration” which characterize the inde-
pendence of property of such legal entities as unitary enterprises and institutions.
The second group confers limited real rights with respect to the use of another per-
son’s land. These rights include the right for life of inheritable possession to land be-
longing to individuals,” the right of permanent and unlimited use of land,” servitudes,
and the right to develop another person’s land parcel. This right belongs to those hold-
ing a right of inheritable possession or permanent use, and entails the power to erect
buildings, structures, and other objects of real estate which become the property of the
developer.
The third group contains rights of limited use over other real estate, mainly hous-
ing premises. These rights are the rights of relatives of the owner of the housing prem-
ises to a limited use of the housing premises,” and the right to use specific housing
premises-e.g. a dwelling house or another object of real estate like a land parcel-for
life. The latter right arises through either contract’ or testamentary refusal.” This right
allows an individual to reside in housing premises belonging to another person, or to
make limited and purposeful use of another person’s real estate. It is debatable whether
the right to pledge a thing-where a thing is the object of a pledge instead of a real
right-and the right to withhold a thing” should be categorized as real rights.
The categories of real rights just described upon which Russian concepts were
modelled were originally defined in German-based legal systems seen today in Ger-
many, Austria, and Switzerland. Somewhat different types of real rights are also found
in French legislation and in other countries of continental Europe. A special section of
the first Civil Code of the Russian Soviet Federated Socialist Republic of 1922 was de-
voted to real rights. When Soviet civil legislation was codified in the 1960s, this cate-
gory was omitted since the State’s right to land was effectively exclusive and did not
‘0 Art. 294 C.C.R.F.
“Art. 296 C.C.R.F.
“Art. 265 C.C.R.F.
“Art 268 C.C.R.F
‘4 Art. 292 C.C.R.F.
Art. 602(l) C.C.R.F
16 Art. 538(2) of the Civil Code of the Russian Soviet Federated Socialist Republic, Vedomosti
S”ezda Narodnykh Deputatov R.E i Verkhovnogo Soveta R.E (1964) No. 24, item 406 [hereinafter
1964 Civil Code].
‘7 Art. 359 C.C.R.F
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EA. SUKHANOV – THE RIGHT OF OWNERSHIP
307
allow for the existence of other real rights, including servitudes. Real rights were re-
instituted in the Federal law On Ownership, and were described in detail and legally
fixed in article 49 of the Fundamentals. The current C.C.R.F. explicitly treats the right
of ownership as the principal type of real right.
I. The Right of Ownership
The right of ownership is the broadest real right. It allows its holder to exclusively
determine the nature and use of the property and, in the process, confers complete eco-
nomic dominion over the property. In article 209(1) C.C.R.F., the legal capacity of the
owner is described through the use of the “triad” of legal powers: possession, use, and
disposition.
The power to possess is understood as the legal authority to have the property and
keep it in one’s household or enterprise. The power to use the property is a legal per-
mission to exploit it for economic or other purposes by utilizing the property’s useful
qualities. Use is closely related to the legal power to possess because, in most cases,
one cannot use property without actually possessing it. The power to dispose of prop-
erty confers an authority to determine the legal life of property by changing its holder,
state, or designation through alienation under a contract, transfer by inheritance, de-
struction, or loss.
In the aggregate, these legal powers fully cover all the possibilities of acting
granted to the owner by law. Suggestions that other legal powers-e.g. the power of
management-could be added to this triad have been unsuccessful. More detailed con-
sideration of these legal powers shows that they are not independent possibilities pro-
vided to the owner, but only ways to exercise the legal powers inherent in ownership.
All three powers are concentrated in the owner. However, separately and some-
times simultaneously, they may not belong to the owner but be vested in another legal
possessor of the property such as a lessee. A lessee not only possesses the property of
the owner-lessor and uses it under the contract with the lessor, but is entitled, with the
lessor’s consent, to sublease it to another person or to make considerable improvements
to the property. Such actions may change the property’s original state to a considerable
degree, or constitute its disposition within certain limits. Thus, it can be said that the
triad of powers is not really sufficient to characterize fully the rights of the owner.”
” The description of legal powers of the owner as a “triad” of possibilities is typical of the Russian
legal system. It was legally fixed for the first time in 1832 in vol. 10, Part 1, art. 420 of the Code of
Laws of the Russian Empire. Following in this tradition, the “triad” passed on to the Civil Codes of
1922 and 1964, and later to the Fundamentals of 1961 and 1991, as well as to the current C.C.R.F
There are other definitions of this right in different foreign laws. For instance, under art. 903 of the
Civil Code of Germany, the owner “may dispose of a thing at his own discretion and to the exclusion
of all others on it” Under art. 544 of the Civil Code of France, the owner “uses and disposes of things
in the most absolute manner” In Anglo-American law, scholars count up to twelve different legal
powers of the owner which different persons may have in various combinations; a consequence of the
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[Vol. 44
The essence of the right of ownership lies not in the number and designation of le-
gal powers, but in the degree of real legal power which is granted and guaranteed to the
owner by the legal system. For example, the 1964 Civil Code formally granted equal
powers of possession, use, and disposition to all owners. However, the legal powers of
the state-owner with respect to the nature and scope of rights could never be compared
to the legal powers of individual owners. Practically speaking, the power of individual
owners was subject to numerous limitations.
From this perspective, the main feature of the owner’s rights in Russian civil law is
the power to exercise these rights “at [the owner’s] discretion.’ The owner can make
an independent decision about what to do with his property and may be guided exclu-
sively by his own interests, provided that the decision does not conflict with any statute
or other legal act, and that it does not violate the rights and legal interests of other per-
sons. This is the essence of the legal power of the owner over property.
An important feature of the owner’s legal rights is that they allow the owner to ex-
clude all other persons from any action affecting the owner’s property. In contrast, the
powers of any other legal possessor–even those powers having the same designation
as the legal powers of the owner-are insufficient to exclude the rights of the property
owner. Instead, the possessor’s powers usually arise through the will of the owner and
operate within the limits provided for by the owner, as with, for example, a contract of
lease.
On the other hand, the right of ownership is not absolute; the law establishes cer-
tain limitations to the content of the right. According to article 209(2) C.C.R.F,
the
owner has the right with respect to his property to take “any actions not contrary to a
statute or other legal acts and not violating the rights or interests protected by a statute
of other persons.” Thus, since under legislation housing premises are intended only for
dwelling by citizens, their use for other purposes such as offices or warehouses-even
by the will or with the consent of their owner-is allowed only if the classification of
these premises is transferred from that of housing to non-housing in accordance with
the procedure defined by legislation.”‘ The owner also has no right to use his property
with the intention of causing harm to another person.’ Thus, the legal rights of the
owner are restricted by certain legal limitations of purpose.
A law or statute may also provide for restrictions on the exercise of ownership. For
example, the pledgor, while remaining the owner of a pledged thing, does not have the
authority to dispose of the thing without the consent of the pledgee.” Moreover, the
rights of the owner of immovable property acquired under a contract of lifetime sup-
nature of the common law that does not lend itself to a legally-fixed definition of the right of owner-
ship.
Art. 288(2), (3) C.C.R.F.
“Art. 209(2) C.C.R.F.
2 Art. 10(1) C.C.R.F
22Art. 346(2) C.C.R.F
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EA. SUKHANOV – THE RIGHT OF OWNERSHIP
309
port with maintenance do not include the power to alienate or dispose of the property
without the consent of the recipient of the rent.’
The right of ownership over land and other natural resources is subject to the
greatest number of restrictions.’ First, the very possibility of private ownership of such
objects, recognized by article 9(2) of the Constitution of the Russian Federation, is
considerably limited with respect to land parcels and is completely excluded for a
number of natural resources. Second, the possibility that these objects become the
subject of civil law transactions, including alienation, is also limited,’ which restricts
the owner’s power to dispose of them. Third, even those rights permitted by statute to
owners of land and other natural resources are subject to environmental prescriptions
and prohibitions and, in a number of cases, by the designated purpose of the property.
Furthermore, the “benefit” of holding property and receiving income from its use
must be considered along with the “burden” of bearing expenses, costs, and risks re-
lated thereto. Article 210 C.C.R.F. specifically points out the owner’s responsibility for
the maintenance of property, unless a statute or contract places this burden or part of it
on another person. For example, the protection of leased property may be transferred to
the lessee, or the management of a bankrupt’s assets may be assumed by a bankruptcy
manager.
The owner also bears the risk of damage to or destruction of his property which
occurs in the absence of fault.” In fact, this risk is part of the burden of the owner.
However, this risk can be transferred to other persons under contract as well as by force
of statute. For instance, such risk may be bome by a guardian who becomes adminis-
trator of the property of an owner who is under guardianship.
The owner is entitled to transfer his rights of possession, use, and disposition while
remaining the owner of the property. ‘ This occurs, for example, when an owner leases
his property. Article 209(4) C.C.R.F. specifically addresses this situation and empowers
the owner to transfer property to another person without transferring the right of own-
ership to the property. ” This device, called “entrusted administration”, is a way for the
owner to exercise legal powers of disposition without establishing a new right of own-
ership to the property.
The concept of entrusted administration provided for by the C.C.R.F. has nothing
in common with the concept of the “trust”. There were attempts to introduce this con-
cept into Russian civil legislation under the influence of absolutely alien Anglo-
In conformity with arts. 601, 604,605 C.C.R.F.
‘ Art. 209(3) C.C.R.F.
Art. 129(3) C.C.R.E
26Art. 211 C.C.R.P.
27 Art. 209(2) C.C.R.F.
28Art. 1012(1) C.C.R.F.
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[Vol. 44
American approaches.’ With entrusted administration, the administrator-e.g. the
guardian of the ward’s property or the testamentary executor who holds the property of
the succession-uses another person’s property without becoming its owner. The ad-
ministrator does not act for his own benefit, but in the interests of the owner, ward,
beneficiary, or heir. This situation may arise either through the prescription of a statute
or under a contract between the owner and the entrusted administrator. For example,
the owner may, for compensation, entrust the administrator to use his securities to re-
ceive income.” The entrusted administrator has the power to possess, use, and even
dispose of the property. He may also perform operations with this property in his own
name, but not for his own benefit.
In the case of a trust, the settlor transfers his rights or a certain part thereof to the
trustee who acts in the interests of the beneficiary. It is also possible for the settlor and
the beneficiary to be the same person. Each of the participants in the trust relationship
has the legal powers of the owner to some degree, i.e., each of them is vested with a
right of ownership.
Under the approach used in continental European legal systems, the trust allows
the right of ownership to be split among several subjects, and for that reason it is im-
possible to say who is really the owner of the property placed under trust management.
Under Anglo-American systems, such a situation does not purport any contradictions
since the right of ownership is by definition constituted by multiple and independent
rights of ownership. Such an approach is alien to continental European legal systems
where a key postulate is the impossibility of establishing two equal rights of ownership
in the same property. Therefore, the transfer by the owner of part or even all his legal
powers to another person, including to a manager, does not lead to the loss of the right
of ownership because the transfer is not limited to these legal powers, i.e., by their
“triad”.
From a practical perspective, borrowing the trust concept in the absence of the
common law’s system of Equity leads to a lack of control over the trustee’s relations
with the settlor who, among other things, acts as a beneficiary. It is clear, then, that
negative consequences could result from a broad application of the trust concept, which
was designed for the more efficient management of state and municipal property
through the transfer thereof to private managers.
29 See para. 1, Presidential Decree No. 2296 “On Trust Ownership (Trust)” (24 December 1993)
Sobranie aktov Prezidenta i Pravitelstva R.E (1994) No. 1, item 1. In connection with the adoption of
Parts 1 and 2 of the C.C.R.F. which directly regulate the relationships of property trust management,
Presidential Decree No. 2296 has now lost its legal force.
” Arts. 10 12-26 C.C.R.F.
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
II. Private and Public Ownership
A. Private Ownership
Citizens may be private owners of any property,” including various types of im-
movable property. Under article 36(1) of the Constitution, private citizens have the
right to own land parcels. The legislation authorizes private ownership by citizens who
acquire the property for individual housing or any other construction, gardening or in-
dividual smallholding or summerhouse smallholding, or engagement in peasant or
farm enterprise. 2 Moreover, citizens who acquire ownership of buildings, structures, or
other immovables in rural residential centers, and lands of agricultural designation
through purchase or inheritance also have the right to acquire ownership of the land
parcels on which such objects stand. Legal acts of privatization allow citizens to ac-
quire ownership of land on which privatized enterprises stand, as well as immovables
which have passed into their ownership.
Property owned by citizens may include obligations as well as real rights. A citi-
zen’s property may also include such rights of claim as bank deposits or rights of use in
the property of another or corporate rights-i.e., the right to participate in joint stock
and other economic societies-and certain other legal powers categorized as exclusive
rights. These do not fall under the regime of real rights, but comprise the property be-
longing to a citizen as a single complex. This complex is the object of claims by the
citizen’s creditors, and in the event of his death, it will form part of the mass of the suc-
cession.
Today, the quantitative limitations placed on citizens’ rights of ownership under the
former legal regime have been repealed. These limitations stipulated the permissible
Art 213 C.C.R.F
32 Federal law On the Right of Citizens of the Russian Federation to Receive in Private Ownership
and for Sale Land Parcels for Engagement in Individual Subsidiary Small Holding, Cottage Small-
holding, Gardening and Individual Housing Construction, Vedomosti S”ezda Narodnykh Deputatov
R.E i Verkhovnogo Soveta R.E (1993) No. 1, item 26; Federal law On Peasant (Farm) Enterprise, Ve-
domosti S”ezda Narodnykh Deputatov R.E i Verkhovnogo Soveta R.E (1991) No. 1, item 10; Presi-
dential Decree No. 323 “On Urgent Measures to Implement Land Reform in the R.S.ES.R.” (27 De-
cember 1991) Vedomosti S”ezda Narodnykh Deputatov i Verkhovnogo Soveta R.E (1992) No. 1, item
53; Presidential Decree No. 1767 “On Regulation of Land Relations and Development of the Agrar-
ian Reform in Russia” (27 October 1993) Sobranie aktov Prezidenta i Pravitelstva R.E (1993) No.
44, item 4191; Presidential Decree No. 2287 “On Bringing the Land Legislation of the Russian Fed-
eration in Line With the Constitution of the Russian Federation” (24 December 1993) Sobranie aktov
Prezidenta i Pravitelstva R.E (1993) No. 52, item 5085; and Presidential Decree No. 1263 “On the
Sale to Citizens and Legal Entities of Land Parcels Designated to Development Which are Located in
the Territories of Urban and Rural Settlement, or the Right to Lease Them” (26 November 1997) So-
branie zakonodatelstva R.E (1997) No. 48, item 5546.
“3 See para 1, Presidential Decree No. 198 “On the Right of Ownership of Citizens and Legal Per-
sons to Land Parcels under Immovables in Rural Areas” (14 February 1996) Sobranie Zakonodatel-
stva R.E (1996) No. 8, item 740.
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number or size of living premises, including the number of apartments, cottages and
summer houses, motor vehicles, and “means of production”.’ Now under article
213(2) C.C.R.E, the quantity and value of property owned by citizens is not limited,
unless limitations are necessary to defend the bases of the constitutional order and the
morals, health, rights, and legal interests of other persons or to ensure the national secu-
rity of the State. Thus, the law provides broad, though not unlimited, possibilities for
the development of private ownership by citizens and accordingly creates the necessary
legal guarantees therein.
Only property excluded from commerce?’ cannot be owned by citizens, since such
property is owned exclusively by the federal State or subjects of the federation. In par-
ticular, the current legislation does not permit citizens to privately own parts of the sub-
soil or forests. Specific types of property that cannot be owned by citizens must be di-
rectly stated in a statute and cannot be established by regulatory acts. A similar rule
also applies to property that can only be owned by citizens with special permission,
which is therefore limited in commerce.”
Legal persons are the individual and sole owners of their property,” including
property transferred to them as contributions or fees from participants or members,
unless this property is directly transferred to them for temporary use. No participatory
share, “collective” or any other ownership on the part of the founders emerges with re-
spect to the property of legal persons. The property of unitary enterprises and institu-
tions is an exception because this property remains an object of the right of ownership
of the founders and, therefore, belongs to these legal persons by the limited right in
things. Legal persons, with the exception of unitary enterprises and institutions, are pri-
vate owners of all their property.
Property owned by legal entities may be either immovable or movable property not
withdrawn from commerce. No limitations as to quantity or value of such property
may be established by the State, except in instances provided by a federal law when
such limitations are necessary to defend the bases of constitutional order and the mor-
als, health, rights and legal interests of other persons, or to ensure the national security
of the State.”
Joint stock and other economic societies and partnerships which participate as
buyers in the process of privatization of state and municipal property may be owners of
land parcels susceptible of privatization.” The category of private land owners may also
Which, incidentally, was declared for the first time in statutes on ownership.
“Art. 129(2) C.C.R.F.
Art. 129(2)(ii) C.C.R.F.
“Art. 213(3), (4) C.C.R.F
“Art. 213(2) C.C.R.E
i
“See Presidential Edict No. 301 (25 March 1992) Vedomosti S”ezda Narodnykh Deputatov R.
erkhovogo Soveta R.E (1992) No. 14, item 761; and Presidential Edict No. 631 (14 June 1992) Ve-
domosti S”ezda Narodnykh Deputatov R.E i Verkhovnogo Soveta R.E (1992) No. 25, item 1427. See
also paras. 4.2,4.6, 4.10 of Presidential Edict No. 485 (16 May 1997) Sobranie zakonodatelstva R.E
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
include agricultural production cooperatives created in the form of agricultural or fish-
ery cartels (collective farms) that have acquired land parcels from their members as
part of their participatory share.’ Legal persons that have become owners of buildings,
structures or other immovables in rural residential areas and lands classified as agri-
cultural are entitled to acquire ownership of land parcels on which these immovables
are located. Under Presidential Decree No. 1263,1′ all legal entities have the right to
purchase at auction land parcels designated for development and located in the territo-
ries of urban and agricultural residential centers. However, some general limitations
still apply, as established by statute with respect to private land owners. These restric-
tions are concerned primarily with the purpose-oriented use and alienation of land, and
the necessity to observe environmental prescriptions and prohibitions. 2
The property of legal persons may also include various rights of claim and obliga-
tions like non-cash money funds and “paperless securities”, corporate rights, and cer-
tain exclusive, industrial rights like trade names, trademarks, and service marks. Such
rights, together with real rights, can form a single property complex that comprises the
total property of a legal entity. This complex can be the object of a legal succession,
under the reorganization of a legal person, or of creditors’ claims. The latter possibility
arises because legal persons are liable for their obligations upon all property which
belongs to them without any exemptions. 3
Non-commercial organizations-which include public and religious organizations,
charitable and other foundations, associations and unions of legal persons, institutions
and non-commercial partnerships–participate in property commerce to the extent
provided for by their charters. Therefore, these organizations have the right to use
property belonging to them only for the achievement of those purposes which are spe-
cifically identified in their founding documents. ‘ Thus, although they are indeed pri-
vate owners, they have more limited powers than most private owners. Most non-
commercial organizations, including societal amalgamations and trade unions, may be
owners of land parcels.’ However, no non-commercial organizations have the right to
distribute profits received from entrepreneurial activity among their participating mem-
bers.
(1997) No. 20, item 2240; Presidential Decree No. 1535 “Basic Provisions of the State Program of
Privatization of State and Municipal Enterprises in the Russian Federation after July 1, 1994″ (22 July
1994) Sobranie zakonodatelstva R.E (1994) No. 13, item 1478.
40 Art. 3(3), Federal law On Agricultural Cooperatives, Sobranie zakonodatelstva R.E (1995) No.
50, item 4870.
41 Supra note 32.
42 Art. 129(3) C.C.R.F.
41 Art. 56(1) C.C.R.F.
” Art. 50(3) C.C.RF.
43Art. 213(4) C.C.R.F
46 Art. 25(1), Federal law No. 10-F2 of 12 January 1996 On the Trade Unions, Their Rights and
Guarantees for Their Activity.
314
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B. Public Ownership
Public ownership under Russian legislation is of two types: state and municipal.
State ownership is characterized by a multitude of owners, represented by the Russian
Federation as a whole and its subjects which include its republics, krais or provinces,
and oblasts or regions. These subjects act not in their governing capacity, but in the
name of the respective state formation and they exercise certain legal powers of public
owners within the limits of their competence.”
Municipal ownership is not a type of state ownership, but an independent kind of
public ownership. The holders of the right of municipal ownership are, as proclaimed
by article 215(1) C.C.R.E, urban and rural settlements and other municipal formations
as a whole. Certain municipal agencies ‘ may, within the limits of their competence, ex-
ercise property rights of a particular municipal formation in the name of that formation.
This exercise does not, however, make the agency the owner of the affected property.
Various kinds of immovables-including land parcels, enterprises and other prop-
erty complexes, housing funds and non-residential premises, buildings and installations
of production and non-production designation-and machinery and equipment may be
objects of both state and municipal ownership. Publicly owned property also includes
securities belonging to public law formations including shares of privatized enterprises
which became joint stock companies, deposits in banks and other credit institutions,
foreign currency and currency values, as well as various historical and cultural monu-
ments.
Objects of public ownership are distributed throughout the Russian Federation, its
subjects, and municipal formations. The procedure for classifying state property into
federal ownership or ownership of the subjects of the Federation must be established
by statute.” In the absence of such a statute, reference may be made to Decree No.
3020-1 of the Supreme Soviet of the Russian Federation.”
All state property, with the exception of that directly classified as municipal,” is
deemed to be under federal ownership. The latter is classified as being either exclu-
“Art. 214(3) C.C.R.F.
“Art. 125 C.C.R.F.
Art. 215(2) C.C.R.F.
Art. 214(5) C.C.R.F.
” “On Distinguishing State-owned Property in the Russian Federation as Federally-owned, State-
owned Property of Republics within the Russian Federation, Provinces, Regions, Autonomous Re-
gions, Autonomous Areas, Cities of Moscow and St. Petersburg and Municipally-owned Property”
(27 December 1991) Vedomnosti S”ezda Narodnykh Deputatov R.S.ES.R. i Verkhovnogo Soveta
R.S.ES.R. (1922) No. 3, item 89 [hereinafter Decree No. 3020-1]. See also Presidential Order “Provi-
sions On Determining Object by Object Federally-owned, State-owned and Municipally-owned
Property and the Procedure for Formalization of Rights of Ownership” (18 March 1992) Vedomosti
S”ezda Narodnykh Deputatov R.E i Verkhovnwgo Soveta R.E (1992) No. 13, item 697.
“Decree No. 3020-1, ibiL, Annex 3.
1999]
E.A. SUKHANOV – THE RIGHT OF OWNERSHIP
315
sively federal property3 or property which may be transferred to the ownership of the
subjects of Federation.’ In the event that objects of state ownership are not listed in any
of the Annexes to Decree No. 3020-1, they are transferred into ownership of the re-
spective subjects of the Federation after a special application by their supreme bodies.
Prior to such time, the property is considered to be under federal ownership. Subjects
of the Federation also have the right to transfer objects under their ownership to mu-
nicipal ownership.
Property under state or municipal ownership is subdivided into two types 5 One is
held by the state or municipal enterprise as a limited real right of economic manage-
ment or operative administration. This “distributed” public property forms the basis for
the participation in commerce of these organizations as independent legal persons, and
therefore cannot serve as security for possible debts of a public owner. The property
which is not held by enterprises and institutions, or “undistributed” state and municipal
property-including funds from the budget-form thefisc or treasury of a public en-
tity. Such property may be an object for levying execution by creditors of a public
owner against its independent obligations.’
In the list of objects constituting thefisc of a public entity, the most important ob-
ject is budgetary funds. 7 The general rule is that fiscal bodies like the Ministry of Fi-
nance, Departments of Finance, and sub-Departments of Finance that directly dispose
of budgetary funds act in the name of thefisc and in the capacity of defendant in claims
against public entities.” In addition to the budget, the fisc of a public entity includes
extra-budgetary funds like pensions, social insurance, and some other types of property
like the funds of the gold reserve, diamond and currency funds, and the property of the
Central Bank of the Russian Federation. The law specifically provides that land and
other natural resources under public ownership may only become objects for levying
execution by creditors of the respective public entity in instances expressly provided
for by statute.9 If no such statute exists, these objects are unavailable to creditors with
the result of preserving public ownership of land.
Any type of property can be state owned, including things excluded from com-
merce or limited in commerce.’ This rule does not apply to municipal ownership,
where property limited in commerce can only be owned if the power is specifically de-
fined by statute, and property excluded from commerce may not be owned at all. For
instance, certain types of immovables, primarily natural resources, may be held in ei-
ther federal or state ownership, but not in municipal or private ownership. Such im-
53Ibid, Annex 1.
‘ Ibid., Annex 2.
55 Arts. 214(4), 215(3) C.C.R.F.
56Art. 126(1) C.C.R.F.
Arts. 214(4)(ii), 215(3)(ii) C.C.R.F.
Art. 1071 C.C.R.F.
Art. 126(1)(ii) C.C.R.F.
‘0Art. 129(2) C.C.R.F.
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movables include parts of the subsoil and mineral waters. Under article 214(2)
C.C.R.F., land and other natural resources which are not owned by citizens, legal per-
sons, or municipal entities are state-owned property. Thus, these natural objects cannot
be masterless, since the legal presumption establishes that they are owned by the State.
III. Termination of the Right of Ownership
The right of ownership is not only the most comprehensive, but also the most sta-
ble real right. It is the key legal prerequisite for property transactions. Therefore, the
law strictly regulates the grounds for termination of ownership with a view to preserv-
ing and supporting the integrity of the right, in conformity with the principle of the in-
violability of ownership proclaimed by article 1(1) C.C.R.F This principle primarily
refers to the power to force termination of the right of ownership against the will of the
owner.
The right of ownership may also be terminated by the will of the owner and can
occur through alienation of property to other persons by the owner and voluntary re-
nunciation of ownership by the owner. The first situation refers to all transactions in
which the owner exercises his right to dispose of property. The procedure for termi-
nating the right of ownership held by the alienator and creating a right of ownership in
the subsequent acquiror is principally regulated by the rules on transactions and con-
tracts.
Formal renunciation of the right of ownership’ is new in Russian legislation, al-
though, in essence, it was previously available in property relations. Article 236
C.C.R.F. permits voluntary renunciation by the owner of his ownership rights either
through a public declaration, or by performing actions which demonstrate an intention
to renounce, for example, by throwing away the property. Renunciation is available to
the owner of both movable and immovable property. In the latter instance, however, re-
nunciation is subject to state registration.
Until the right of ownership over property which its previous possessor has re-
nounced is obtained by another person, the rights and obligations of the original owner
are not terminated.” This means not only that the “return” of the property to its former
owner is possible since the owner has not lost his right to the thing, but that legal re-
sponsibility for the property may also be imposed. Thus, an owner who has renounced
ownership of an object may nonetheless be responsible for damage caused by it.
Privatization of state and municipal property is a special instance of termination of
the right of ownership.” Only property in state and municipal ownership may be pri-
vatized; in other words, this type of termination is possible only for public, and not pri-
vate, owners. At the same time, it will always result in the emergence of a right of pri-
61Art 236 C.C.R..
62 Art. 236(ii) C.C.R.F.
” Arts. 217, 235(2)(ii) C.C.R.E
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
317
vate ownership. Privatization is initiated by the decision of the public owner and pre-
supposes that payment was received in some form for the privatized property. The ob-
jects of privatization are immovables directly specified in the statute, as well as shares
of open joint stock companies created by, and belonging to, public owners in the proc-
ess of privatization. Finally, privatization must be carried out in accordance with the
procedure provided for by statutes on privatization rather than by the civil law.
The right of ownership is also terminated through loss or destruction of the prop-
erty,’ since in this instance the very object of the right disappears. Reasons for the dis-
appearance or destruction are quite another matter. If a thing is lost, it is assumed that
the loss happened without any person’s fault, and due merely to accidental causes or
superior force. As a general rule, no one is liable for such loss and the risk of loss of
the property is borne by the owner.” If a thing is destroyed through the fault of a third
person, that person incurs liability either for causing harn or for a violation of con-
tractual obligations.’
Forced withdrawal of property from the owner is permitted only in cases specified
in article 235(2) C.C.R.F. The cases enumerated in this provision represent an exhaus-
tive list which cannot be expanded, even by statute. This is an important guarantee of
the right of the owner. Compulsory taking from the owner in the listed cases is gener-
ally compensated, which is to say that the value of the thing taken is paid to the owner.
It is allowed in the following cases:
(1) Alienation of property that by force of statute may not belong to the given
person because it is limited or excluded from commerce (article 238
C.C.R.F.).
(2) Alienation of immovable property such as a building in connection with
the taking of a land parcel (article 239 C.C.R.F.).
(3)
Compulsory purchase of improperly maintained cultural valuables (arti-
cle 240 C.C.R.F).
(4) Compulsory purchase of domestic animals if they are improperly treated
(5)
(6)
by the owner (article 241 C.C.R.F.).
Requisition of property (article 242 C.C.R.F.).
Payment of compensation to a participant in shared property for the part
of common property due him in the event of disproportionate compensa-
tion for a share separated in kind (article 252(4) C.C.R.F.).
“Art. 235(1) C.C.R.F.
6 Art. 211 C.C.R.F.
“Art. 1064 C.C.R.F.
67Art 393 C.C.R.F.
318
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(7)
(8)
Acquisition of the right of ownership in immovable property by decision
of the court, if it is impossible to remove a building or structure located
on another person’s land parcel (article 272(2) C.C.R.E).
Purchase of a land parcel for state or municipal needs in conformity with
a decision of a court (article 282 C.C.R.F).
(9) Withdrawal of a land parcel from an owner if the use of the land parcel is
in gross violation of legislative provisions (article 285 C.C.R.F).
(10) Sale at a public auction of improperly maintained housing premises by
the decision of a court (article 293 C.C.R.E).
(11) Nationalization of property of owners by force of statute (articles
235(2)(iii) and 306 C.C.R.F.).
Termination of ownership in property which cannot belong to the owner by virtue
of statute ‘ primarily ensures the protection of the public interest. The types of property
affected are those which may be exclusively in state ownership or limited in commerce;
in general, property that can be acquired only with special permission of state agen-
cies.’ If such property-i.e., weapons, poisonous substances and illicit drugs, or cur-
rency-appeared in the hands of its possessor illegally, then this confiscation does not
generate any serious consequences for the right of ownership. However, even if the
property was acquired by a private owner through legal means-e.g. a situation in
which weapons or currency were transferred from one citizen to another by legal in-
heritance, or from one legal person to another in the process of reorganization-this
person will be deprived nonetheless, by virtue of statute, of the right of ownership in
this property.
The owner of such property has the right to alienate it in any manner allowed by
law to a person legally authorized to obtain such property within one year, unless a
statute provides a different and usually shorter term for the alienation.7 If this does not
happen, a court may order either the forced sale of the property, or transfer it to state or
municipal ownership. The decision is determined with the nature and classification of
the property as a primary consideration. It is obviously not expedient to sell weapons or
poisonous or illicit substances at public auctions when their possessor has no special
permission for their safekeeping or use. Such objects would therefore be transferred
into public ownership. Regardless of how expropriation occurs, compensation to the
former owner for the lost property can be in the amount of money received from the
sale of the thing less the necessary costs of sale, or an amount determined by the
court.7
“‘ Art. 238 C.C.R.E
69Art. 129(2) C.C.R.R
70 Art. 238(1) C.C.R..
‘ Art. 238(2) C.C.R.E
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EA. SUKHANOV – THE RIGHT OF OWNERSHIP
Article 239 C.C.R.F. provides for a special case of termination of ownership of
immovable property. The situations described in this provision occur when a land par-
cel or a part of the subsoil, water areas, or similar natural objects, are expropriated from
a private owner for a public purpose. If there are buildings, structures or other immov-
ables on the expropriated land, the owner of these objects, who may or may not be the
owner of the land, has the right to receive compensation.
The law provides the following guarantees to an owner in this type of situation.
First, the purchase of such immovable property or the sale of the property at a public
auction can only be ordered by a decision of the court, and not through an administra-
tive procedure. 2 Second, a mandatory condition for the expropriation is that proof be
offered in court that it is impossible to use the land parcel in question without termi-
nating the owner’s rights over immovables located on the land! Third, land legislation
and other statutes may provide for an alternative withdrawal in the form of moving the
buildings or structures to a new land parcel at the expense of the person in whose inter-
est the withdrawal is being executed, or construction at his expense of similar structures
in a new location.”
Compulsory purchase from a private owner of improperly maintained cultural
valuables is allowed subject to the following conditions.7 First, the provision does not
protect all such objects, but only those specifically identified by the State. 6 Second, a
court procedure must establish not only that these objects were improperly maintained,
but also that there exists a real threat of loss through the actions or omissions of their
owner. This applies only to private owners since improper maintenance of cultural ob-
jects protected by the State cannot become grounds for their withdrawal from a public
owner and transfer to a private owner. Such a course of action would constitute privati-
zation, which is not provided for in the law. The owner of the cultural objects which are
being withdrawn receives compensation for them in the amount obtained from the sale
of the objects, or some other form of compensation established by agreement with the
purchasing state agency or by a court judgment.”
Until c. 17 of the C.C.R.F. comes into force-along with the rules of arts. 279-82, 284-86 pro-
viding for the procedure of compulsory purchase or sale at an auction of immovables located on the
expropriated land parcel-one should be guided by the general rules of art. 239 C.C.R.F. and the
norms of effective land and natural resources legislation. See also art. 282 C.C.R.F
73 Art. 239(1)(ii) C.C.R.E.
74 As, for instance, is provided for by art. 55 of the Land Code of the Russian Federation, Vedomosti
S”ezda Narodnykh Deputatov R.S.ES.R. i Verkhovnogo Soveta R.S.RS.R. (1991) No. 22, item 768.
71 Art. 240 C.C.R.F.
76 Today their legal regime is determined by Presidential Decree No. 1487 “Provisions on Particu-
larly Valuable Objects of Cultural Heritage of the Nations of the Russian Federation” (30 November
1992) Sobranie aktov Prezidenta i Pravitelstva R.E (1992) No. 23, item 1961; and Resolution of the
Russian Federation No. 1143 “Provisions on the State Register of Particularly Valuable Objects of
Cultural Heritage of the Nations of the Russian Federation” (6 October 1994) Sobranie zakonodatel-
stva R.E (1994) No. 25, item 2710. See also art. 240 C.C.R.F
” Art. 240(ii) C.C.R.F.
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Article 241 C.C.R.E creates a new rule which authorizes the compulsory purchase
of domestic animals from the owner if the owner perpetrates or permits improper
treatment of the animals. The law speaks of conduct “in clear contradiction” with the
rules and norms of humane treatment of animals as constituting grounds for their com-
pulsory purchase. Such purchase is allowed only with a court judgment determining
the amount of compensation due to the owner of the animal in case of a dispute.
Requisition, or compulsory expropriation of property from a private owner for ur-
gent public interest reasons,’
is also grounds for termination of private ownership of
citizens and legal persons. This method of withdrawl is common to most legal systems
and, as expected, allows for compensation to the owner. Requisition is only allowed
under circumstances of an extraordinary nature as would be the case in, for example, a
natural disaster, and may only be executed in the interests of society. Such expropria-
tion is allowed by a decision of the State, but not by municipal agencies, and does not
require a court judgment.
The procedure and conditions for withdrawal of property through requisition must
be established by statute. Additional guarantees to protect the interests of the owner of
the requisitioned property are set out in article 242 C.C.R.F. These provisions allow the
owner to (i) contest the amount of compensation being paid for the requisitioned prop-
erty, and (ii) demand and obtain the remaining requisitioned property upon termination
of the extraordinary circumstances. In the latter case, settlement of accounts is possible
between the old and the new owner and this process is executed according to the rules
on unjust enrichment.79
The current law does not preclude termination of ownership through nationaliza-
tion, or the transfer of privately-owned property to state-owned property.’ Nationaliza-
tion may, however, only be ordered on the grounds of a special Federal law which has
not yet been adopted, and with compensation not only of the value of the property to
the owner, but also for all damages inflicted in the process of state acquisition. Moreo-
ver, the law directly establishes a possibility to contest the amount of compensation
paid to the owner.”
There are only two instances where the law allows property to be expropriated
from an owner against his will without compensation. The first instance is in levying
execution against the owner’s property to satisfy the owner’s obligations. 2 The second
circumstance is the confiscation of an owner’s property under article 243 C.C.R.E
Levying execution to satisfy debts is only generally allowed on the basis of a court
decision. However, a statute may provide for execution in an extra-judicial procedure,
78 Art. 242(1) C.C.R.F.
7 Art. 1102 C.C.R.F.
Arts. 235(2), 306 C.C.R.F.
, Art. 306 C.C.R.F.
82 Since arts. 24, 56, 126 C.C.R.F. allow creditors to levy execution against the property of owner-
debtors.
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
for example, when execution is levied against property by tax agencies. Authority for
levying execution may also originate under a contract, for instance, when a pledgee
levies execution against the pledged property on the grounds of a notarized agreement
with the pledgor. The former owner’s right of ownership to such property terminates
the moment the acquirer’s right of ownership arises. Prior to that moment, the owner-
debtor bears both the risk and the burden of liability.
Another basis for compulsory withdrawal of property without compensation is
violation of the law by the owner.’ This sanction, termed “confiscation”, may be ap-
plied in conformity with the provisions of the Criminal Code of the Russian Federa-
tion’ to a private owner who commits a crime or otherwise violates the law, where such
a penalty is provided for by law. The only instance of confiscation for a civil law viola-
tion is provided for in article 169 C.C.R.E, which authorizes the expropriation of prop-
erty without compensation when a transaction contrary to legal and moral order is done
with intent.
As a general rule, confiscation must be authorized by court procedure. However,
an administrative procedure may be sufficient in cases provided for by statute. For ex-
ample, smuggled objects may be withdrawn by customs, or illegal tools for hunting
and trapping may be withdrawn by nature conservation agencies without a court order.
In these cases, however, withdrawal may be appealed in court, even if it is done on the
grounds of administrative and not civil legislation.’
IV. Remedies
The new civil legislation of Russia places particular emphasis on the protection of
ownership and other real rights. In conformity with the fundamental principle of in-
violability of the right of ownership, the new C.C.R.R creates a special system aimed at
protecting the rights and interests of private owners from various encroachments on
their property.
In the event of direct violation of the right of ownership through, for example, theft
or illegal expropriation, Russian legislation provides real remedies in the form of ab-
solute claims or claims filed against any third person having violated a right in rem.
The C.C.R.F. traditionally provides two real actions which protect the right of owner-
ship and certain rights in things. The first is true recovery action (actio rei vindicatio), a
claim for demanding and obtaining property from another person’s unlawful posses-
sion. The second is negatory action (actio negatoria), an action for elimination of ob-
stacles to the use of property where no deprivation of possession exists.” Both means
Art. 349(l)(ii) C.C.R.F.
Art. 243(1) C.C.R.F.
Sobranie zakonodatelstva R.E (1996) No. 25, item 2954.
Art. 243(2) C.C.R.F. Since here the right of ownership is affected, the content of this rule is gov-
erned by civil law.
87 Art. 304 C.C.R.E
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of protection are aimed at protecting the owner’s right to the object itself. If the object
is lost or cannot be returned to the owner, it is possible to speak only about compensa-
tion for inflicted losses, which is categorized as a personal action and not an action in
protection of real rights. Therefore, real rights protection of property interests only
have as their object individually determined things, not substituted property.
A right of ownership may also be violated indirectly as a consequence of a viola-
tion of another, often personal right. For example, a person to whom the owner trans-
ferred property under a contract might refuse to return the property to its owner or
might return it damaged. This is a case for the application of real rights protection un-
der the law of obligations. These rules are specially designed for instances when the
owner is bound to the violator by relations in personam, most often contractual rela-
tions. These methods of protection are usually applied to the defaulting party under the
contract, taking account of the specific nature of the parties’ relationship. Remedies in
the law of obligations are, therefore, of a relative nature and may have as their object
any property, including both things and rights.
Since both of these types of remedies may apply at the same time, a question arises
as to which of the two kinds of civil law protection-that of real rights protection or
that of the law of obligations-is the appropriate remedy. Russian legislation does not
allow the claimant to choose an action and does not allow the so-called “competition of
suits” typical of Anglo-American law. In the event of breached contractual relations or
other relations in personan, the law of obligations and not real rights should be used to
obtain a remedy, since the legal relations existing between the parties are of a relative
nature and not an absolute one.’ A real action cannot be filed when an individually
determined thing is absent as a subject of dispute.
Suits against state agencies or local self-governing bodies are a new and independ-
ent group of civil law remedies which serve to protect the right of ownership. The
powers which these agencies enjoy preclude the possibility of filing traditional real ac-
tions or personal actions against them in instances when they do not act as equal par-
ticipants in commerce. Thus, public authorities may violate real rights of private per-
sons or infringe upon them through lawful and unlawful actions, both of which require
special means of protection for private owners.
Two types of actions are used to provide the necessary protection. First, the law
allows claims for full compensation of damages inflicted upon private persons as the
result of unlawful acts or omissions by state agencies, local self-government bodies, or
their officials. The remedy also applies where damage is inflicted through the issuance
of a regulatory or non-regulatory act which runs contrary to a statute or other legal act.”
” This reasoning can be extended to instances when limited real rights arise due to a contract with
the owner of a thing; the parties are protected by absolute real rights and not by the law of obligations,
for the relation is of an absolute and not a relative nature. The owner of a thing in this instance is
bound to the subject of a limited real right by contract and, therefore, in its relationship with the latter
cannot resort to the law of obligations to protect his interests.
“Art. 16 C.C.R.F.
1999]
EA. SUKHANOV – THE RIGHT OF OWNERSHIP
Second, a claim for invalidation of an unlawful act of a state or municipal agency
which contradicts a statute or other legal act may also be made.” Such actions are
brought against tax and customs agencies, for example, in the event of an unjustified
levy of execution against an individual’s property.”
Lawful actions by public authorities which infringe upon the interests of private
owners require special means of protection. For example, termination of a private per-
son’s right of ownership through nationalization of his property conforms with federal
law,” and is therefore a lawful action. In this situation, the owner’s rights are subordi-
nated to the law and the owner has no right to claim the return of withdrawn property.
However, full compensation may be claimed, including unreceived income and the
value of the property lost by the owner An owner of land expropriated for state or
municipal needs through a decision of executive agencies is granted the same right.
Thus, the new civil legislation of Russia provides for thorough legal formalization
of ownership relations, including comprehensive protection of the rights and interests
of private owners.
90 Art- 13 C.C.R.F.
9 Naturally, tax and customs relations, or relations with respect to state property management are of
a civil law nature. At the same time, unjustified interference of public power into the property sphere
leads in many instances to the violation of real rights, and therefore requires special means of protec-
tion. It is no accident that rules on suits against public power appeared for the first time in laws on
ownership.
92 Art. 235(2)(iii) C.C.R.F.
9′ Art. 306 C.C.R.F.
Arts. 279-82 C.C.R.E
324
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
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EA. SUKHANOV – THE RIGHT OF OWNERSHIP
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326
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[Vol. 44
Books
Maggs, P.B. & Zhiltsov, A.N., eds, The Civil Code of the Russian Federation, trans.
P.B. Maggs & A.N. Zhiltsov (Armonk, N.Y: M.E. Sharpe, 1997).
