1. If the property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will.
2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.
3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.
1. By imposing restrictions on vindication and thus ensuring a balance of interests between the owner and the bona fide purchaser, the law proceeds from the principle of "the least evil". The established procedure for vindication is based on several interrelated criteria: a) good faith (bad faith) of the acquirer; b) compensation (gratuitousness) of the acquisition of property; c) the nature of the disposal of property from the owner's possession.
2. Thus, in all cases, the property of a bona fide and compensatory purchaser is subject to vindication if it has been withdrawn against the will of the owner. Such a rule is based on the assumption that a bona fide acquirer can protect its interests by presenting appropriate claims against the alienator, whose identity he either knows or is more likely to be identified.
In turn, the rules on vindication in relation to an unscrupulous purchaser are applied regardless of whether the property was acquired free of charge and due to what circumstances it left the owner's possession. This is explained by the fact that the bad faith of the acquirer excludes the existence of any advantages over the owner.
If the property was acquired free of charge, vindication is allowed regardless of such criteria as bad faith and circumstances of disposal. It is believed that in the case of a gratuitous purchaser, the interests of the owner are recognized as priority, since when claiming property, the illegal owner does not incur any property losses due to the acquisition of the thing, and Art. 303 of the Civil Code guarantees reimbursement of expenses for the maintenance of property.
3. However, in the described order of unconditional vindication, the following restrictions are established.
Firstly, it follows from paragraph 1 of the commented article that if property acquired in good faith and for compensation has left the owner’s possession at his will, including as a result of the conclusion of lease agreements, storage, etc., vindication is impossible (para. 19 of the letter of YOU N 13). It is assumed that in such cases, the owner bears the risk of choosing the wrong counterparty, which is why priority is given to protecting the interests of the acquirer.
Secondly, paragraph 3 of the commented article establishes a ban on vindication in good faith and, most importantly, gratuitously acquired money and bearer securities. It is believed that the reasons for the introduction of this rule are, in particular, the need to ensure the stability of civil circulation, taking into account the high turnover of these things; difficulties with the individualization of property (for example, money is recognized as a purely generic thing, and vindication is possible only in relation to individually defined property). True, this rule is formulated unnecessarily rigidly. If we assume that in a particular case, money or bearer securities were initially individualized in a certain way (including by sealing in an envelope, etc.) and such individualization was preserved at the time the claim was filed, then it is hardly possible to see objective obstacles to vindication .
Thirdly, a comparison of paragraphs 1 and 2 of the commented article allows us to conclude that the rule on the possibility of vindication in case of a gratuitous acquisition has one more exception, when a chain of bona fide purchasers arises, and the thing is vindicated from a person who received it free of charge from a bona fide compensated the acquirer (for example, as a result of donation, inheritance, etc.). In this case, the decision on the issue of vindication should be based on the provisions of paragraph 1 of the commented article on the recovery of property from the paid purchaser, since otherwise the latter would be unreasonably limited in the disposal of the thing.
4. It should be noted that the application of the rules on vindication is difficult due to the inability to legally formalize the content of the criteria used. Thus, the concept of "bad faith" is disclosed in the Civil Code through such evaluative and subjective signs as "(did not) know or (didn't) should (could) know". Therefore, when assessing bad faith, all relevant specific circumstances of the case (in particular, the characteristics of the item, price, time and place of acquisition, etc.) must be taken into account.
For example, judicial practice proceeds from the lack of good faith, when at the time of the onerous transaction there were claims of third parties, subsequently recognized as justified if the acquirer was aware of them (paragraph 4, clause 24 of the Resolution of the Supreme Arbitration Court No. 8). However, in view of the presumption of good faith fixed in the legislation (clause 3, article 10 of the Civil Code), the acquirer is not obliged to prove the existence of circumstances confirming his good faith. Therefore, it is difficult to agree with the opposite conclusion made in sec. 3 paragraph 24 of the Resolution of the Supreme Arbitration Court No. 8.
Similarly, the Civil Code does not disclose the concept of "disposal of property against the will of the owner." The legislator is limited to pointing to individual examples (in particular, the loss, theft of things) and giving the list an open character. It is obvious that this does not contribute to uniform and adequate law enforcement, especially in conditions when the highest judicial instances evade giving appropriate explanations (see paragraph 26 of the Resolution of the Supreme Arbitration Court No. 8). Thus, there is no consensus on whether the disposal of property against the will should be considered "other cases", for example, transactions for the alienation of property without obtaining the necessary consent (approval) of guardianship and guardianship authorities, bodies of a legal entity, etc. Therefore, at present, this problem should be solved in each specific case, taking into account all the actual circumstances, while the owner must prove the circumstances of the disposal of property from his possession (paragraph 2, clause 24 of Resolution of the Supreme Arbitration Court No. 8).
The operation of the new principle: a conscientious buyer does not part with his car if other people's debts hang on it.
Now we can safely say that the new protection system works. A car will not be taken away from a person if he checks it with a notary before buying it. In its decision in a specific case, the Supreme Court confirmed this. And courts across the country have already begun to change practice and leave cars to people.
Today, the notary maintains a special register in which cars that are pledged are noted. Simply put, these cars are trailed by a trail of debts, and you can buy them only with these same debts.
Thousands of citizens have already fallen into such a trap. A man bought a car in the secondary market.
And then it turned out that once this car was sold on credit, and is pledged. The previous owners had gone cold, so the person faced a choice: either pay for other people's debts or part with the car.
Previously, the law in this case has always been on the side of the bank. The buyer, who had become extreme, had a third way: to find the seller and collect money from him in court.
But this option, as too fantastic, was not seriously considered by anyone. Most of the people were left in tears and without a car.
The situation began to change a few years ago. A law was passed providing for the establishment of a register of notices of pledges of movable property. The register operator is the Federal Notary Chamber. And in 2014, amendments to the Civil Code came into force, actually turning a certificate from a notary into a reservation. If for some reason the pledged car was not on the "black list", the buyer is not to blame.
Nevertheless, lawyers had some concerns about how the courts would begin to interpret this rule in practice. Maybe somewhere there is a catch that legislators have not noticed?
It seems that doubts were not justified. The courts are already developing protective practice. For example, recently the Lipetsk Regional Court dismissed the appeal of the bank, which demanded that the car be taken away from a bona fide buyer.
The car was sold on credit in March 2013. But already in April of that year, the debtor sold the car to another person, and he himself disappeared somewhere. The new owner sold the car on January 14 last year. At the same time, the last buyer made inquiries in the registry, this car was not listed there. The official response from the notary saved the buyer from big trouble: the court of second instance dismissed the bank's claim.
It is curious that the bank either tried to cheat, or simply showed sluggishness, but on January 21 last year (that is, a week after the sale), it entered the car into the register. I wonder what the bank clerks were doing the previous year and a half, when it became clear that the debtor was not paying? Be that as it may, the court logically decided that the bank was late.
Another similar case was considered in the Krasnodar Territory. There, the person did not check the 2010 Hyundai Elantra against the notification register. This was in the summer of 2014. Perhaps the citizen was not yet aware of the latest changes in legislation. It was all the more unpleasant to find out already in court that 600 thousand credit rubles were hanging on the car. Since the man had nothing to cover, the car was taken away from him.
"The register of notifications of pledges of movable property actually performs a very important task - protecting the interests of a bona fide buyer, if, of course, he turned to a notary in order to ensure his legitimate interests," Konstantin Korsik, president of the FNP, told RG. the registry also effectively protects the legal interests of the mortgagor, and judging by the structure of registered pledge notices, we can say that it also successfully performs the function of regulating pledge relations, making them more transparent, which is necessary for business, society, and the state. The notary proves by deeds its ability to create and develop such demanded mechanisms without the use of budgetary funds.
Recently, a similar dispute was considered by the Judicial Collegium for Civil Cases of the Supreme Court of Russia. It was about a mortgaged car, bought back in 2010. The Supreme Court sent the case back for a new trial, while explaining that the provisions of the Civil Code of 2014 on bail are not retroactive. However, in fact, the decision confirms that cars that have changed owners after this period are included in the notary protection program.
Direct speech
Konstantin Korsik, President of the Federal Notary Chamber:
"The register of notifications of pledges of movable property actually performs a very important task - protecting the interests of a bona fide buyer, if, of course, he turned to a notary in order to ensure his legitimate interests. Moreover, this register equally effectively protects the legitimate interests of the pledgor. And judging by the structure of registered notices of pledges, we can say that it successfully performs the function of regulating pledge relations, making them more transparent. This is necessary for business, society, and the state. And the notary proves by deed its ability to create and develop such demanded mechanisms without the use of public funds.
The buyer of an apartment needs to remember that there is such a legal concept as "good faith purchaser" real estate. And this concept can play a role in the event of litigation over the ownership of an apartment.
In practice, there are cases when an apartment is sold by a person who is not the full owner of this apartment, or who does not have rights to it at all - i.e. unauthorized Seller .
This is possible, for example, when the apartment is being sold for, or when the rights of the owner of the apartment are limited by a pledge, or these rights are disputed in court, etc. The same applies frankly, when a swindler sells an apartment under false documents that does not belong to him. Including cases when one of the previous transactions with this apartment turned out to be illegal, and its rightful owner claims his rights to it.
It may also be illegal due to errors in the execution of documents, for example). Then state or municipal authorities will act as the legal owner of the apartment.
In such cases, the Buyer may be in for an unpleasant surprise - the real owner or the owner's creditor can file a lawsuit demanding Buyer ( the so-called "vindication claim"), and return it to yourself. The difference between this claim and the claim is that here the real owner is not obliged to compensate the Buyer for the money paid for the apartment. After all, he sold the apartment and someone else received money for it ( unauthorized Seller), and the one to whom the apartment will be returned ( real owner), did not receive money for it, and, accordingly, is not obliged to return them.
For the Buyer, this is the worst scenario. The money paid for the apartment, he can demand only from the one who took it ( who illegally sold him an apartment). And this character still needs to be found, and you need to be able to get this money from him ( which may have been spent long ago).
Exclusively for such situations with the sale of real estate by an unauthorized Seller, there is a legal concept - bona fide purchaser, which means that the Buyer of the apartment, concluding a deal, did not know and could not know that the Seller had no right to sell this apartment.
If the apartment was purchased from the present legal owner ( even in a transaction later recognized as invalid), then the concept bona fide purchaser- not applicable.
When the apartment is sold unauthorized Seller , then sometimes the law allows it to remain in the property bona fide home buyer (this is the main meaning of this legal concept). But this doesn't always happen. The court may seize an apartment from “illegal possession” . It's called - Opens in a new tab.">vindication .
The law clearly indicates in which cases it is possible to confiscate an apartment from (Opens in a new tab. "> Article 302 of the Civil Code of the Russian Federation).
Namely - if the apartment was sold clearly and unambiguously against the will of its real owner . In other cases, the court, at its discretion, may allow the apartment to remain with the Buyer, if it considers it conscientious. Including - if it turns out that the real owner knew about the sale of the apartment, and did not interfere with this.
Or the court may invalidate the deal and, as a consequence, apply no longer vindication , but Opens in a new tab.">restitution - that is, a mutual return: to the Buyer of money, and to the Seller - of the apartment.
Court decision to apply vindication will depend on whether the Buyer knew, concluding that the Seller of the apartment is not its rightful owner, or his rights to the apartment are illegal, or are currently being contested in court. In other words, it is important for the court to know that when entering into a deal, the Buyer acted in good faith!
Court will not consider a conscientious buyer of an apartment the one who knew or should have known that the apartment is being sold without the knowledge of its real owner (Opens in a new tab."> Clause 1, Article 167 of the Civil Code of the Russian Federation). Including the Buyer who does not took reasonable and sufficient measures to verify the legality of the transaction - i.e. was not interested in the data of the state register of real estate ( did not order), does not have copies or .
Conversely, if the court considers the Buyer's actions reasonable and logical, then the concept of "conscientious", and then this concept begins to act in his defense.
Rights Protection bona fide purchaser immovable property is expressed in the fact that this property will NOT be applied vindication
(seizure without compensation), unless the court finds grounds for applying the above Art. 302 of the Civil Code of the Russian Federation. In other words, if the court establishes that the real owner of the apartment knew about the sale of the apartment by another person, and could have prevented this.
In the event of a dispute over removal of an apartment from illegal possession , the burden of proving that one is right lies with each participant in the dispute. The real owner of the apartment must prove that the apartment was sold beyond his will and the Buyer must prove that did not know and could not know that the apartment was sold to him by someone who did not have the right to do so.
buyer to prove their conscientiousness and defend their rights, it is necessary to convince the court that it has accepted all reasonable measures to determine the Seller's authority to sell the apartment. In particular, I checked the data of the main title document for the apartment ( see acquisition rights), compared it with the data of the Seller's passport, and also received confirmation of his property rights from the authorized body - Rosreestr ( cm.).
If, according to the extract from the register it is clear that there are claims to the apartment being bought from the side, or the current Seller is burdened with a pledge, or is being challenged in court, then the court will consider that this information was available to the Buyer, and he could know about the disputed rights of the Seller. This means that the buyer will not be recognized conscientious.
Conclusion: by collecting information and documents for the purchased apartment, and acting without malicious intent, the Buyer provides himself with an "alibi" conscientiousness, which allows him to reduce the dangerous risk of using vindication , in case it turns out that the Seller ( including scammer) did not have the authority to sell the apartment.
Therefore, it is extremely important, in addition to checking the documents for the apartment, to check the Seller himself for his rights and powers to sell the apartment. How it's done is explained in step INSTRUCTIONS for the secondary market - .
On defense bona fide homeowner also stood the Constitutional Court of the Russian Federation on cases of seizure escheated property in favor of the state.
escheated call the empty apartments of deceased citizens. In the absence of heirs, such housing should become the property of the state, but in life it often happens that no one draws up the rights to it, and the apartment remains ownerless. This is used by fraudsters, drawing up fake documents for such an “forgotten by everyone” apartment, and then selling it to a bona fide Buyer on their own behalf.
Municipal authorities then "wake up" and declare that the apartment is escheated and left the municipal ownership beyond his will , which means it must be withdrawn from the Buyer by vindication .
A number of similar cases led to the fact that the case came to the Constitutional Court of Russia, which in 2017 sided with protecting the rights of bona fide buyers of real estate (see details), and decided not to confiscate apartments from them on claims of this kind.
concept "conscientious homeowner" arises in opposition to the demand for the seizure of this apartment from him on vindication action . In other words, reference to good faith acquisition can only be considered as an objection to such a claim.
Here is an excerpt from a real court decision, in which the concept of “good faith purchaser” protected the Buyer from an attempt to seize his apartment from him ( quote from the judgment):
"When concluding this transaction, citizen K.R. ( buyer - Approx.) acted reasonably and exercised due diligence. Evidence that when making a transaction, the acquirer K.R. should have doubted the seller's right to alienate property, the plaintiffs did not present the court.
Based on the foregoing, the court finds K.R. bona fide purchaser apartment No. ... located at ... Taking into account the circumstances established during the court session, the specified property cannot be claimed from a bona fide purchaser".
Given the possible disputes over the unauthorized actions of the Seller of the apartment, one should also remember about. There is a "general limitation period" - 3 years, since the law does not establish "special limitation periods" for such cases.
The limitation period, in this case, begins from the moment when the real owner found out that his apartment is in someone else's possession.
"REALTOR'S SECRETS":
See the interactive map for organizing a transaction for the purchase and sale of an apartment. It will open in a pop-up window."> STEP-BY-STEP INSTRUCTIONS (will open in a pop-up window).
1. If the property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will.
2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.
3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.
Expert comment:
The legislation allows that the owner may obtain the right to claim his property from a bona fide buyer in cases where it was lost by him or by the person to whom the legal owner transferred it in possession, was stolen or left their possession in another way against their will.
1. The text of the commented article restricts the claim by the owner of his property from someone else's illegal possession. The introduction of such restrictions is connected with the need to ensure the primary protection of the interests of another participant in the trade turnover - a bona fide purchaser.
2. The law protects only the interests of a bona fide purchaser. The latter must prove that he did not know and could not know that the property is being acquired from a person who does not have the right to alienate it, and believed that he had legally received the property into his ownership. The presence in the actions of the acquirer of intent and even gross negligence excludes the possibility of protecting his interests.
3. If the acquirer is in good faith, then the owner has the right to claim property from him only when it has left the possession of the owner or the person to whom it was transferred by the owner into possession, against their will (lost, stolen, etc.). Moreover, the owner must prove these circumstances himself. The presence in the actions of the owner of the will to transfer property to another person excludes the possibility of its recovery from a bona fide purchaser (Bulletin of the Armed Forces of the Russian Federation. 1991. N 2. P. 14; p. 19 of the Review).
The law makes two exceptions to this rule: a) if the property was acquired by a bona fide purchaser from a person who did not have the right to alienate it, free of charge, the owner can claim it under any circumstances (even if it left the owner's possession at his will); b) money (Article 140 of the Civil Code) and bearer securities (Chapter 7 of the Civil Code), as the most negotiable objects of civil law, cannot be claimed from a bona fide purchaser under any circumstances.
4. In cases where the property cannot be claimed, it becomes the property of a bona fide purchaser. At the same time, the owner has the right to file a claim for the recovery of losses from the person to whom he transferred his property into possession.
5. The Civil Code, following the laws on property, abandoned the principle of unlimited (regardless of the good faith of the acquirer) vindication of state, cooperative and public property (Article 153 of the Civil Code of 1964). Such property may be claimed by the owner on a general basis.
6. The Civil Code also abandoned what was previously enshrined in Part 2 of Art. 152 of the 1964 Civil Code of the prohibition for the owner to claim property sold in the execution of a court decision. Now he can demand it in compliance with the rules of Art. Art. 301 and 302 of the Civil Code. However, if the person who acquired the property at the auction held by the bailiff is a bona fide purchaser, and the auction was not declared invalid, this person is recognized as the owner of the property. The former owner is no longer entitled to return it (paragraph 22 of the Review).
1. If the property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will.
2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.
3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.
1. Clause 1 of the commented article lists the conditions under which the owner is not entitled to reclaim his property from someone else's illegal possession. Such a restriction is connected with the need to ensure the preferential protection of the interests of another participant in the trade turnover - a bona fide purchaser.
It is very important to correctly determine who is a bona fide purchaser under Art. 302. As pointed out in its Resolution No. 6-P of 21 April 2003 “On the case of reviewing the constitutionality of the provisions of paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation in connection with the complaints of citizens O.M. Marinicheva, A.V. Nemirovskaya, Z A. Sklyanova, R.M. Sklyanova and V.M. Shiryaev "Constitutional Court of the Russian Federation," bona fide acquisition in the sense of Article 302 of the Civil Code of the Russian Federation is possible only when the property is acquired not directly from the owner, but from a person who did not have the right to alienate this property." (SZ RF, 2003, N 17, item 1657). Consequently, at least three persons always participate in such a dispute: 1) the owner; 2) a person who did not have the right to alienate a thing, but did so; 3) a bona fide purchaser. Accordingly, a vindication claim is filed by the owner (1) against a bona fide purchaser (3).
2. In order for the owner's claim to be dismissed, the bona fide purchaser must prove:
a) that he did not know and should not have known about the acquisition of property from a third party who was not entitled to alienate it (paragraph 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8).
This clarification of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 8 is increasingly being criticized and, apparently, needs to be canceled. Protection of a bona fide purchaser under Art. 302 is a type of protection under paragraph 3 of Art. 10 GK. According to the latter, in cases where the law makes the protection of civil rights dependent on the reasonableness and good faith of the actions of participants in civil legal relations, their reasonableness and good faith are assumed.
Therefore, a bona fide purchaser under Art. 302 does not have to prove that he did not know and should not have known about the acquisition of the thing from a third party, which had no right to alienate it. In the case of, for example, acquiring real estate, it is enough for him to refer to the fact that he acquired it from a person whose ownership of real estate is registered (Article 131 of the Civil Code, Article 2 of the Law on Registration of Rights to Real Estate).
On the contrary, the person who filed a vindication claim must prove that the acquirer acted in bad faith. For example, in one of the cases it was established that a legal entity, having received non-residential premises from the owner under a lease agreement, subsequently sold it to another legal entity. Since it turned out that the defendant, when acquiring the property, did not know and should not have known that the seller was not the owner, the owner's vindication claim was denied (Bulletin of the Supreme Arbitration Court of the Russian Federation, 1998, No. 12, p. 71).
It should be borne in mind that the buyer cannot be recognized as a bona fide purchaser if, by the time the onerous transaction was made, there were legitimate claims to its subject from third parties, which the buyer was aware of and which were recognized as legitimate in the prescribed manner (clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8);
b) that he acquired the thing for a fee.
An exception is the case when it is possible to prove that the disputed property has left the possession of the owner or the person to whom it was transferred by the owner into possession, against their will (lost, stolen, etc.).
Applying these grounds to real estate can cause certain difficulties. So, it is impossible to lose real estate due to its natural properties. However, the theft of real estate according to documents that were forged, and the property was sold on behalf of the owner; its sale by a legal representative of a minor contrary to the interests of the latter; sale of real estate by heirs without taking into account the rights to the inheritance of other heirs; sale by the head of a legal entity of immovable property belonging to a legal entity, with excess of authority - all these are cases of disposal of property from the possession of the owner or the person to whom the owner transferred the property into possession, against their will. Consequently, in these cases, the property can be returned to the owner even from a bona fide purchaser.
The presence in the actions of the owner of the will to transfer the property excludes the possibility of its recovery. For example, after the division of property under a settlement agreement approved by the court, one of the spouses, using a vindication claim, tried to return the car from the person to whom it was sold by the other spouse. The fact that the car was transferred to another spouse voluntarily served as the basis for the refusal of the plaintiff's claim (Bulletin of the Supreme Court of the RSFSR, 1991, No. 2, p. 14).
3. Clause 2 of the commented article contains an independent basis for satisfying the vindication claim of the owner against a bona fide purchaser. This is a situation where the purchaser receives a thing from third parties free of charge.
For example, the owner leases his property, after which the tenant dies. The heirs of the tenant, having received the property in possession and not knowing the true owner, consider themselves as such. The vindication claim of the owner under such circumstances will be satisfied, despite the transfer of property into the possession of the deceased tenant at the will of the owner and the conscientious receipt of it by the heirs. This is explained by the fact that the disputed property was transferred to the heirs free of charge and the tenant had no right to alienate it.
4. Paragraph 3 of the commented article provides another basis for resolving the dispute between the owner and the bona fide purchaser. According to the law, money (Article 140 of the Civil Code) and bearer securities (Chapter 7 of the Civil Code), as the most negotiable objects of civil law, cannot be claimed from a bona fide purchaser under any circumstances.
5. For some time, arbitration courts and courts of general jurisdiction gave different answers to the question about the so-called. competition of a vindication claim and a claim for invalidation of a purchase and sale transaction with the return of property to the owner in the manner of bilateral restitution. The fact is that, having received a refusal in a vindication claim, the owner often tries to solve the problem of returning his property by filing claims for the recognition of all transactions for its alienation as invalid. Often he does this without filing a vindication claim.
According to paragraph 25 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 8, if, when resolving a dispute on the recognition of the sale and purchase transaction as invalid and the return of the property transferred to the buyer, it is established that the buyer meets the requirements of Art. 302 to a bona fide purchaser, the claim to the owner must be denied.
Courts of general jurisdiction, on the contrary, satisfied such claims regardless of the good faith and reasonableness of the actions of the acquirer of the thing. Such judicial practice has led to the fact that the citizens of O.M. Marinicheva, A.V. Nemirovskaya, Z.A. Sklyanova, R.M. Sklyanova and V.M. Shiryaev appealed to the Constitutional Court of the Russian Federation with complaints about the violation of their constitutional rights by the provisions of paragraphs. 1 and 2 Art. 167 GK. In their opinion, on the basis of this article and as a result of the practice established in the courts of general jurisdiction, the owners were able to demand the return of what they received in kind, not only when it comes to the first transaction made in violation of the law, but also when the disputed property was acquired by a bona fide purchaser on on the basis of subsequent (second, third, fourth, etc.) transactions.
The Constitutional Court of the Russian Federation in its Resolution of 21.04.2003 N 6-P recognized the general provisions of paragraphs. 1 and 2 Art. 167 of the Civil Code on the consequences of the invalidity of transactions that do not contradict the Constitution. At the same time, the Constitutional Court of the Russian Federation ruled that the general provisions on the consequences of the invalidity of transactions in terms of the obligation of each party to return everything received under the transaction do not apply to a bona fide purchaser (Article 302 of the Civil Code), unless otherwise expressly provided by law.
Thus, if the owner goes to court with a claim to recognize the transaction as invalid and to apply the consequences of its invalidity, and during the consideration of the case it turns out that the acquirer is in good faith (Article 302 of the Civil Code), the claim to the owner should be denied. At present, a similar approach is reflected in the practice of the Supreme Court of the Russian Federation (Bulletin of the Supreme Court of the Russian Federation, 2004, No. 4, p. 2).
In the future, the owner will be able to return the thing only by going to court with a vindication claim, if he manages to prove the existence of the grounds provided for in paragraph 1 of Art. 302.
6. Outside the scope of the Civil Code and the Resolution of the Constitutional Court of the Russian Federation, it turned out to resolve the issue of whether it is possible to recognize a bona fide purchaser as the owner of property in the event that a vindication claim against him cannot be satisfied. There is reason to believe that in these cases the property becomes the property of a bona fide purchaser.
It is in this sense that the Plenum of the Supreme Arbitration Court of the Russian Federation spoke in the already mentioned paragraph 25 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8.
It seems that the final solution to this issue should be given in the law.
7. The Civil Code, following the Laws on Property in the USSR and the RSFSR, abandoned the principle of unlimited (regardless of the good faith of the acquirer) vindication of state, cooperative and public property (Article 153 of the 1964 Civil Code). Such property may be claimed by the owner on a general basis.
8. The Civil Code also abandoned what was previously enshrined in Part 2 of Art. 152 of the Civil Code of 1964 prohibits the owner from claiming property sold in the execution of a court decision. Now the owner can demand it in compliance with the rules of Art. 301 and 302 of the Civil Code (clause 26 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8).
However, in order to give the rules for the acquisition of real estate sold in enforcement proceedings additional guarantees, the debtor or bailiff is required to register the debtor's ownership of this property before holding a public auction. According to sub. 3 p. 3 art. 62 of the Law on Enforcement Proceedings, a certificate of state registration of ownership of real estate, together with other documents characterizing the object, must be transferred to a specialized organization conducting auctions (clause 17 of the Review of Dispute Resolution Practices Related to the Application of the Federal Law "On State Registration of Rights to Real Estate property and transactions with it" - an appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 N 59 - Bulletin of the Supreme Arbitration Court of the Russian Federation, 2001, N 4).
1. The commented article adopted one of two approaches to the problem of a vindication claim, developed by the historical experience of world civil law.
In Roman law, the limits of the vindication claim were not limited. The owner has always had the right to vindicate his thing in accordance with the principle "where I find my thing, there I vindicate it."
The opposite approach was developed by the law of a number of medieval cities (mainly German). There, the owner was deprived of the right to claim his thing if it was sold by an unauthorized alienator. The acquirer received protection from the owner in accordance with the principle "Hand muss Hand wahren" ("the hand must provide the hand"). These cities lived by trade, and the meaning of this exemption was to protect the clientele of local merchants who came to shop in the city. If a visitor purchased a thing from a person who openly traded in the city market, then he could not worry that then the owner who suddenly appeared would vindicate this thing from him. On the surface, this looks like acquirer protection. However, in the final analysis, this approach ensures the economic interests, first of all, of resellers, as well as other sellers of goods, as it promotes sales and, consequently, accelerates the turnover of capital.
The historical experience of civil law shows that both unlimited and limited vindication corresponds to the interests of a market economy. In the law of modern countries with developed market economies, as a rule, both approaches are combined. The vindication of immovable property is unlimited, while the vindication of movable property is limited. In the field of real estate, the interests of protecting property rights are at the forefront, and in the field of movables, the interests of promoting turnover. It is said that in these countries for centuries there is an established system of registration of rights to real estate.
