1. If the property was paid for the person who did not have the right to alienate him, what the acquirer did not know and could not know (a conscientious acquirer), the owner is entitled to refer to this property from the acquirer in the case when the property is lost by the owner or the person It was transferred to the owner of possession, or kidnapped in one or another, or dropped out of their possession otherwise, in addition to their will.
2. If the property is purchased free of charge from a person who has not had the right to alienate him, the owner is entitled to request property in all cases.
3. Money, as well as bearer securities, cannot be exterminated from a bona fide acquirer.
1. In paragraph 1 of the commented article, the conditions are listed under which the owner is not entitled to request its property from someone else's illegal possession. Such a restriction is associated with the need to ensure the advantage of protecting the interests of another participant in the trade turnover - a conscientious acquirer.
It is very important to correctly determine who is a conscientious acquirer under Art. 302. As indicated in its decree dated 21.04.2003 N 6-P "in the case of the verification of 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. Marice, A.V. Nemirovskaya, s .A. Blyowova, PM Sklyovoy and V.M. Shiryaeva "The Constitutional Court of the Russian Federation,". Communicative acquisition in the sense of article 302 of the Civil Code of the Russian Federation is possible only when property is purchased directly from the owner, but by a person who has no right to alienate This property. " (SZ RF, 2003, N 17, Art. 1657). Consequently, at least three persons are always involved in such a dispute: 1) the owner; 2) a person who did not have the right to alienate the thing, but did it; 3) a conscientious acquirer. Accordingly, the WINDICATION claim is presented by the owner (1) to the conscientious acquirer (3).
2. In order for the owner in the lawsuit, a conscientious acquirer must prove:
a) what he did not know and should not have known about the acquisition of property from a third party, which was not entitled to alienate it (paragraph 24 of the Resolution of the Plenum of the Wheel of the Russian Federation N 8).
This explanation of the Resolution of the Plenum of the Russian Federation N 8 is increasingly criticized and, apparently, needs cancellation. Protection of a conscientious acquirer under Art. 302 is a variation of protection according to clause 3 of Art. 10 GK. According to the latter in cases where the law puts the protection of civil rights dependent on the intelligence and conscientiousness of the actions of the participants in civil legal relations, their intelligence and conscientiousness are assumed.
Consequently, a conscientious acquirer under Art. 302 should not prove that he did not know and should not have known about the acquisition of a third party, which was not entitled to alienate it. In case, for example, the acquisition of real estate it is enough for him to refer to the fact that he acquired it by the person whose property ownership is registered (Article 131 of the Civil Code, Art. 2 of the Law on Real Estate Rights Registration).
On the contrary, a person who submitted a WINDICATION claim should prove that the acquirer acted unfairly. For example, one of the cases was found that a legal entity, having received a non-residential premises under the lease agreement, in the future sold it to another legal entity. Since it turned out that the defendant, acquiring property, did not know and should not have known that the seller was not the owner, the owner was denied the owner (Vestnik of the Russian Federation, 1998, N 12, p. 71).
It should be borne in mind that the buyer cannot be recognized as a conscientious acquirer if the time of the compensated transaction had legitimate claims for its subject of third parties, which the buyer was known and which were recognized as legitimate in the prescribed manner (paragraph 24 of the Resolution of the Plenum of the Russian Federation of the Russian Federation N 8);
b) that he acquired a thing compensated.
The exception is the case when it will be possible to prove that the disputed property has dropped out of ownership of the owner or the person to whom it was transferred to the owner of possession, in addition to their will (lost, stolen, etc.).
The use of these reasons for real estate can cause certain difficulties. So, to lose real estate due to its natural properties is impossible. However, the abduction of real estate on the documents that were forged, and the real estate on behalf of the owner was sold; Sale of its legal representative of minor contrary to the interests of the latter; real estate sale by the heirs excluding the right to the inheritance of other heirs; Sale by the head of the legal entity of real estate owned by the legal entity, with the excess of authority - all these cases of the disposal of property from ownership of the owner or the person to whom the owner transferred real estate to possession, besides their will. Consequently, in these cases, real estate can be returned to the owner even from a conscientious acquirer.
The presence in the actions of the owner of the will to transfer property excludes the possibility of its demand. For example, after the property section under the settlement agreement, approved by the court, one of the spouses with the help of the Wordic Claim tried to return the car by the person to whom he was sold to another spouse. The fact that the car was transferred to another spouse voluntarily served as the basis for refusing the plaintiff in the lawsuit (Bulletin of the RSFSR, 1991, N 2, p. 14).
3. In paragraph 2 of the commented article, it contains an independent basis for meeting the owner's imaging claim to a conscientious acquirer. This is the situation when the acquirer receives a thing from third parties free.
For example, the owner transmits its property for rent, after which the tenant dies. The heirs of the tenant, having received the property to hold and not knowing the true owner, consider themselves. The owner's version of the owner will be satisfied in such circumstances, despite the transfer of property to possession of the deceased tenant by the will of the owner and the conscientious receipt by his heirs. This is explained by the fact that the controversial property was transferred to the heirs free and the tenant had no right to alienate him.
4. Clause 3 of the commented article provides for another basis for the resolution of the dispute between the owner and the conscientious acquirer. According to the law, the money (Article 140 of the Civil Code) and the securities of the bearer (ch. 7 of the Civil Code) as the most commodity objects of civil law cannot be exterminated from the bona fide acquirement under any circumstances.
5. For some time, the arbitration courts and the courts of general jurisdiction answered the question about the so-called. Competition of the Wine Claim and a Claim about the invalid purchase and sale transaction with the return of property by the owner in the order of bilateral restitution. The fact is that, having received a refusal in the WinDicational Costa, the owner is often trying to solve the problem of returning his property by filing claims for recognizing all transactions on its alienation invalid. Often he does this and without presenting the WINDICATION Claim.
According to paragraph 25 of the Resolution of the Plenum of the RF NA 8, if, when resolving a dispute about the recognition of the purchase and sale transaction, the invalid and return of property transferred to the Buyer will be established that the buyer meets the requirements of Art. 302 to a conscientious acquirer, the owner should be denied the owner.
The courts of general jurisdiction, on the contrary, such claims satisfied, regardless of the good faith and the rationality of the acquirer of the belonging. Such judicial practice led to the fact that 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 of violation of their constitutional rights by the provisions of PP. 1 and 2 tbsp. 167 GK. In their opinion, on the basis of this article and as a result of the general jurisdiction of the practice, the owners were able to demand the return of obtained in nature, not only when it comes to the first deal committed with a violation of the law, but also when the disputed property was acquired by a conscientious acquirer on The basis of the subsequent (second, third, fourth, etc.) of transactions.
The Constitutional Court of the Russian Federation in its decree dated 21.04.2003 N 6-P recognized the general provisions of PP. 1 and 2 tbsp. 167 GK on the consequences of invalidity of transactions with non-contradictory constitution. At the same time, the CS of the Russian Federation ruled that the general provisions on the consequences of the invalidity of transactions in terms of the obligation of each of the parties to return all received by the transaction do not apply to a bona fide acquirer (Article 302 of the Civil Code), unless otherwise provided by law.
Thus, if the owner appeals to the court to recognize the transaction of invalid and on the use of the consequences of its invalidity and during the consideration of the case it turns out that the acquirer is conscientious (Article 302 of the Civil Code), the owner must be denied. Currently, such an approach is reflected in the practice of the Supreme Court of the Russian Federation (Bulletin of the Armed Forces of the Russian Federation, 2004, N 4, p. 2).
In the future, the owner will be able to return the thing only by appealing to court with the WINDICATION COSSION, if it is possible to prove the presence of grounds provided for in paragraph 1 of Art. 302.
6. Over the framework of the GC and the Resolution of the Constitutional Court of the Russian Federation, it turned out to be a solution to whether a conscientious acquirer can recognize the owner of the property in the case when the Wizard's claim cannot be satisfied. There is reason to believe that in these cases, property becomes the property of a conscientious acquirer.
It was in this sense that the plenum of the Russian Federation was spoken in the already mentioned paragraph 25 of the decision of the Plenum of the Russian Federation No. 8.
It seems that the final solution to this issue should be given in the law.
7. GK Following the laws on ownership in the USSR and the RSFSR, the principle of unlimited (independently of the good faith of the acquirer) of the Wine of State, Cooperative and Public Property (Article 153 of GC 1964). Such property can be exterminated by the owner on the general basis.
8. The GK refused to be fixed earlier in part 2 of Art. 152 GC 1964 Prohibition for the owner of requester by property sold in the order of execution of a court decision. Now the owner may require it in compliance with the rules of Art. 301 and 302 GK (paragraph 26 of the Resolution of the Plenum of the Court of the Russian Federation N 8).
However, in order to give the Rules for the acquisition of real estate sold in the order of enforcement proceedings, additional guarantees, from the debtor or the bailiff before the public auction is required to register the ownership of the debtor on this property. According to sub. 3 p. 3 Art. 62 Act of the Enforcement Activity Certificate of state registration of property ownership, together with other documents characterizing the object, should be transferred to a specialized organization conducted by trading (paragraph 17 of the review of the practice of resolving disputes related to the application of the Federal Law "on state registration of rights to immovable Property and deals with him "- an application to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 16.02.2001 N 59 - Vestnik of the Russian Federation, 2001, N 4).
1. The commented article adopted one of two approaches to the problem of the Wordic Claim, developed by the historical experience of world civilistics.
In Roman law, the limits of the Wine Cake were not limited. The owner has always had the right to look its thing in accordance with the principle "where I find my thing, there I am her and vicaris."
The opposite approach was developed by the right of a number of medieval cities (mostly German). There the owner was deprived of the right to request his thing if she was sold unconditioned alienator. The acquirer received protection from the owner in accordance with the principle of "Hand Muss Hand Wahren" ("Hand should provide hand"). These cities lived trade, and the meaning of this withdrawal was to protect the clientele of local merchants who came for purchases to the city. If the visits acquired the thing in the face, openly traded in the city market, he could not worry about the fact that then suddenly the owner's announced this thing he had vinegar. On the surface it looks like the protection of the acquirer. However, ultimately, this approach provides economic interests primarily by trading intermediaries, as well as other sellers of goods, as it promotes sales and, consequently, acceleration of capital turnover.
The historical experience of civilistics shows that the interests of the market economy correspond to both unlimited and limited vinegar. In the right of modern countries with a developed market economy, both approaches are combined. Real estate vintage is unlimited, and movable windikation is limited. In the field of real estate, the interests of the protection of the right of ownership are put in the chapter, and in the field of movableness - the interests of promoting the turnover. It affects that in these countries centuries there is an established system for registration of real estate rights.
A conscientious acquirer is called a citizen or organization that fulfilled the requirements of the law, but did not know that they acquire property not by the owner. What can threaten the interests of a conscientious acquirer and how to protect them.
In the Civil Code of the Russian Federation, there is a section II - on the right of ownership and other real rights rights. In Chapter 20 of Section II of the Civil Code of the Russian Federation, we are talking about the protection of such rights. Including the prescriptions of the law on how to act the owner, if his property turned out to be among third parties. In the context of the protection of the rights of the owner, the legislator introduced the concept of a voluntary acquirer.
A voluntary acquirer in the law is called a citizen or a company that bought property, but did not know and should not have known that it does not belong to the seller. Meaning situations where a company or citizen had no opportunity to find out if the seller is entitled to make transactions with property. That is, a conscientious acquirer is a person who has fulfilled all the requirements of the law for its part, but has acquired the goods from a third party, not the owner.
If the seller had no right to alienate controversial property, under Article 302 of the Civil Code of the Russian Federation, a conscientious acquirer must return the purchase of the owner. The owner may submit a WINDICATION Suit, a negative lawsuit or a claim for recognition of ownership. The law made a reservation, in what cases the property will have to return. Return is necessary if the disputed object was at the owner or a person who received him from the owner to hold, and at the same time property:
In addition, at the GC, a conscientious acquirer must return controversial property to the owner if he received it for free (paragraph 2 of Art. 302 of the Civil Code of the Russian Federation). And here is money or securities for the bearer, the owner is not entitled (paragraph 3 of Art. 302 of the Civil Code of the Russian Federation).
On June 22, 2017, the CS of the Russian Federation issued a decree in which he made a special indication relative to paragraph 1 of Art. 302 of the Civil Code of the Russian Federation. The court stressed that the position of this item to some extent corresponds to Part 2 of Art. 8, part 1 and 2 tbsp. 19, Part 1 and 2 Art. 35 and part 3 Art. 55 Constitution of the Russian Federation. Suppose, in the jurisdiction of public legal education there was a fatal property - residential premises. This structure did not take in accordance with the principles of rationality and diligence of timely measures to establish control over property and the proper design of their property right. If the person buys such a premises with a support for EGRN data and will register the right in accordance with the law, and the owner will submit a lawsuit in court, under the article of the GC, a conscientious acquirer will have to return controversial housing. According to the court, in this case, the requirement of the law is dispersed with the Constitution (Resolution of the CS of the Russian Federation of June 22, 2017 No. 16-P).
In the 302nd article, a conscientious acquirer most often should return the owner's acquired property. The interests of this acquirer need protection, for example, if the company buys property, which:
Regarding the deposit according to the GC, a conscientious acquirer does not become a new pledgee, if he did not know and should not have known that the property was secured. In this case, the deposit is terminated (sub. 2 p. 1 of Art. 352 of the Civil Code of the Russian Federation). That is, to protect its interests, the buyer's company must prove that it did not have the opportunity to gain reliable information about the status of property. It should be borne in mind that such information can be obtained from the register of pledges of movable property. If the court does not consider the acquirer of conscientious, for the pledge will be able to recover.
As for real estate, the company can prove its good faith with the help of a document from EGRN. If the buyer relied on the data from the registry, and the transaction corresponds to the signs of reality, this indicates the good faith of the buyer's company. Such a legal position is present in the resolution of the Plenum of the Armed Forces of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22.
It is necessary to confirm conscientiousness then to preserve the controversial property. The buyer will lose property if the court:
In the first case, in accordance with Art. 302 The owner must prove that the property has dropped out of his own ownership against their own will. If the owner has not proven, the controversial object will remain at the acquirer. This is true even for cases when the court has established the unlawfulness of the sale. (In addition, the burden of proving the unscrupulousness of the buyer also lies on the owner, see paragraph 5 of Art. 10 of the Civil Code of the Russian Federation). But if the object is not yet at the buyer, the owner can win the process using a negative claim, a claim for recognizing the right or recognition of the right missing. Then the conscientiousness of the buyer will not affect the situation, and the property will be returned to the owner.
The claim may be on the recognition of the contract invalid. Unlike the Welcome Claim, the seller serves, and not the owner-third person. For the buyer, the factor of integrity in this case does not have a determining value. In such situations, the court does not apply the 302rd article, a bona fide acquirer this rule will not protect (clause 3.1 of the RF CC Resolutions of 21.04.2003 No. 6-P).
The company received the property (real estate object, equipment, another product). If, after the fulfillment of the obligations, she learned that he made a fair acquirer, this is an occasion to demand from the seller of compensation for damages and termination of the contract (paragraph 5 of Art. 453 of the Civil Code of the Russian Federation) or reducing the price (paragraph 1 of Art. 460 of the Civil Code of the Russian Federation). In the case of a version of the owner of the owner, a conscientious acquirer is entitled to attract the seller to participate in the case on its side (para. 1 Art. 462 of the Civil Code of the Russian Federation). The buyer makes sense to draw the seller to the proceedings, so that there are no obstacles to the satisfaction of the seller's claim (para. 2 Article 462 of the Civil Code of the Russian Federation).
Cases when property can be exterminated from the last acquirer and cases when the claim is impossible
The issues of claiming property from someone else's illegal ownership are governed by Articles 301 and 302 of the Civil Code of the Russian Federation, in accordance with which the recovery of property in court from the last buyer of property acquired on a paid transaction can be implemented in the following cases:
If the face is unscrupulous The acquirer, then the recovery of property is possible in all cases.
If the face is good faith The acquirer, then the recovery of property from someone else's illegal possession is possible only in cases where such property dropped out of the ownership of the owner in addition to his will.
In other words, in order for the latest acquirer in court order to lose the property in the application of articles 301 and 302 of the Civil Code of the Russian Federation, it is necessary simultaneously compliance with two conditions:
First, the last acquirer of the property must be good faith Acquirer.
Secondly, the disposal of property from the initial owner should occur in will The latter.
Thus, the validity and legality of the seizure of residential premises from citizens in the order of applying articles 301 and 302 of the Civil Code of the Russian Federation is directly related to such concepts as "the good faith of the acquirer", "the unscrupulousness of the acquirer", "Will" and "Disposable in addition to Will".
At the same time, the signs (criteria for determining) the above concepts are not disclosed in the legislation.
Good faith Acquirer Article 302 of the Civil Code of the Russian Federation defines as a person who is acquired did not know and could not To know that property is acquired by a person who has no right to alienate it. In this case, such a wording does not allow signs (criteria) for which it would be possible to accurately establish that face he knew or could Know (or did not know and could notto learn) that property is acquired by a person who has no right to alienate it.
The concept of "unfinished acquirer" in the legislation is not disclosed at all. It is understood that unscrupulous the acquirer of property is the one who for some reason cannot be recognized good faith Acquirer.
It should be noted that Article 302 of the Civil Code of the Russian Federation is not the only norm of legislation, which reflects the legislator's attempt to disclose the concept " conscientiousacquirer. "
In accordance with Article 2 of the Federal Law of April 22, 1996, No. 39-FZ "On the securities market" by a conscientious acquirer of the security is a person who has acquired securities made their payment and at the time of acquisition did not know and could not be aware of the rights third parties on these securities, if no other is proven.
It is noteworthy that Article 302 of the Civil Code of the Russian Federation, in contrast to Article 2 of the Federal Law of April 22, 1996, No. 39-FZ "On the Securities Market" does not contain words " if no otherwise proven"What inevitably gives rise to a discussion about who should prove good faith (unscrupiance) of the acquisition of property that is not valuable. Judicial practice not only by the lower courts, but also the Supreme Court of the Russian Federation in this matter, as will be shown later, the uniformity has not been different until recently.
2.1.3. The will to alienate the state (municipal) property and the methods of its expression by the state, the concept of "disposal in addition to the will" in relation to the owner - the state
As already mentioned, in accordance with the law, the foundation for the removal of property at a conscientious acquirer is to establish the fact of lost, abduction or disposal of property from ownership of the owner in other ways.
If the expansion of the will of a citizen can be established on the basis of the analysis of the actions committed by him, then in relation to the state as the owner of the property, the use of this approach causes certain difficulties.
The state acts in the person of numerous state bodies and local governments, which generates difficulties in understanding the legal content of the concepts of "will of the state", "the disposal in addition to the will of the state", and also generates a discussion on the proper ways to express the state to the disposal of property, as it immediately arises A number of questions:
· What are the signs of the disposal of property from the state (municipal) property besides the will of the state?
· As far as the concept of "disposal in addition to the will of the state", which is the owner of the property, identically, the concept of "disposal in connection with unscrupulous (non-professional, hastable, etc.) actions of officials of the authorities", on which the functions of the authority of the owner of the state (municipal ) Property?
· As in relation to the concepts of "Willow of State" and "Disposable In addition to the Will state", considering the situation when property is dropped from state ownership as a result of illegal privatization, which representatives of the state took part in the design of which?
· How in relation to the same concepts to consider the situation when property is illegally dropping out of state ownership on the basis of the decision of the court - the state authority (subsequently canceled)? Including when it comes to affairs, to the participation of which the authority was attracted by the authority of the owner with respect to the state (municipal) property, which did not object to the satisfaction of the relevant lawsuits.
· How to consider a long impairment of legally significant mandatory actions against the emails of the dwelling - for example, frauding property (legal inaction) on the part of authorized representatives of the authority authority of the owner regarding the state (municipal) property?
· As, for example, consider such a special case when the Moscow Department of Housing Policy and Housing Fund, who at one time the authority of the owner in relation to the city housing stock for a long time (more than three years) did not commit legally significant actions to ensure due Accounting and preservation of the relevant residential premises, which allowed the above-mentioned residential premises for pseudo-manifestations during this period on the basis of social recovery agreements, followed by their privatization on the basis of court decisions, and then sell them to third parties (citizens - conscientious acquirers)? Is the described inaction of employees of the Department of Housing Policy and Housing Fund of Moscow by the expression of the consent (will) of the city to alienate controversial apartments?
And this is only part of the questions, the answers to which are absent in the law.
The action of a 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 person will not take a car if he checks it in the notary before the purchase. In his decision on a specific case, the Supreme Court confirmed this. And the courts across the country have already become a practice and leave cars to people.
Today, the notary is conducted by a special register in which cars are marked in pledge. Simply put, the debt loan stretches behind these machines, and you can only buy them with these debts.
Thousands of citizens have already fallen into such a trap. 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 and the trail has bothered, so the person turned out to be in front of the choice: either pay for someone else's debts either, parted with the car.
Previously, the law in this case was always on the side of the bank. The buyer, who became extreme, remained the third way: to find the seller and to recover money from him.
But this option, how too fantastic, who was seriously considered seriously. For the most part, people remained in tears and without a car.
The situation began to change a few years ago. A law was adopted, providing for the creation of a register of notifications about the collateral of movable property. The registry operator is the Federal Notary Chamber. And in 2014, amendments to the Civil Code entered into force, which actually turn the certificate from the notary to the reservation. If the main machine for some reason did not turn out in the "black list", the buyer is not to blame.
Nevertheless, the lawyers had some concerns how courts will begin to interpret this rate in practice. Maybe somewhere there are catch noted by lawmakers?
It seems that doubts were not justified. Courts are already impairing protective practice. For example, recently, the Lipetsk Regional Court in the appellate instance rejected the lawsuit of the bank demanding to pick up the car from a good faith.
The car was sold on credit in March 2013. But in April of that year, the debtor sold the car to another person, and himself disappeared somewhere. New owner sold cars on January 14 last year. At the same time, the last buyer brought references in the registry, this car did not mean. The official response from the notary and saved the buyer from big troubles: the court of second instance rejected the lawsuit of the bank.
It is curious that the bank either tried to smear, or simply showed non-historicalness, but on January 21 of last year (that is, a week after sale), he made a car in the registry. Interestingly, than bank clerks did the previous year and a half, when it became clear that the debtor did not pay? Be that as it may, the court logically decided that the bank was late.
Another similar case was considered in the Krasnodar Territory. There, a person did not check the Hyundai Elantra 2010 on the register of notifications. The case was in the summer of 2014. Perhaps a citizen was not yet aware of the latest changes in legislation. Moreover, it was already in court that 600 thousand credit rubles were hanging on the car. Since there was nothing to catch a man, he took the car.
"The register of notifications about the collateral of movable property acts acts a very important task - the protection of the interests of a bona fide buyer, if he, of course, appealed to the notary in order to ensure his legitimate interests, said" RG "President FDP Konstantin Corsic. - Moreover, this The registry equally effectively protects both the legitimate interests of the pledger. And judging by the structure of the registered notifications of collateral, it can be said that he successfully performs the function of regulating a mortgage relationship, making them more transparent. This is necessary to business, and society, and the state. And The notarie proves its ability to create and develop such popular mechanisms without the use of budget funds. "
Recently, a similar dispute reviewed the judicial board on civil cases of the Supreme Court of Russia. It was about the laid car bought in 2010. The Supreme Court directed the case for a new consideration, while explaining that the norms of the 2014 GK 2014 are not in return. However, in fact, the decision confirms that cars that changed the owner after this period fall into the notarial protection program.
Direct speech
Konstantin Corsic, President of the Federal Notary Chamber:
"The register of notifications about the collateral of movable property in fact performs a very important task - protection of the interests of a bona fide buyer, if he, of course, appealed to the notary in order to ensure its legitimate interests. Moreover, this register is as effectively protecting and the legitimate interests of the pledger. A Judging by the structure of registered notifications of collateral, it can be said that he successfully performs the function of regulating a mortgage relationship, making them more transparent. This is necessary to business, and society, and the state. And the notary case proves its ability to create and develop such sought-after mechanisms Without the use of budget funds. "
