Coursework property law in various legal systems. Lectures Property rights in various legal systems

Objectives of this course work:
analysis of different legal systems
identifying common and distinct features
disclose ownership in various legal systems, find common and individual
Objectives of this course work:
conduct research on this issue, analyze it and
draw a conclusion, identify the reasons for the differences in legal systems.

Introduction 3
I. Ownership
1.1 Concept of ownership 5
1.2 Acquisition, Limitation and Termination of Ownership 7
II. Continental system of law
2.1 General characteristics of the continental system 11
2.2 Ownership in the Romano-Germanic legal system 12
III. Anglo-American legal system
3.1 General characteristics of the common law system 15
3.2 Ownership in the Anglo-American system of law 16
IV. Muslim legal system
4.1 General characteristics of the legal system 19
4.2 Ownership in the Muslim legal system 20
Conclusion 27
Bibliography

The work contains 1 file

Introduction 3

I. Ownership

1.1 Concept of ownership 5

1.2 Acquisition, Limitation and Termination of Ownership 7

II. Continental system of law

2.1 General characteristics of the continental system 11

2.2 Ownership in the Romano-Germanic legal system 12

III. Anglo-American legal system

3.1 General characteristics of the common law system 15

3.2 Ownership in the Anglo-American system of law 16

IV. Muslim legal system

4.1 General characteristics of the legal system 19

4.2 Ownership in the Muslim legal system 20

Conclusion 27

References 30

Appendix 1 31

Appendix 2 32

INTRODUCTION

Approximately in the III-II millennia BC. part of humanity has made a gigantic breakthrough - passed from primitiveness to civilization. A qualitatively new world began to be created, although for a long time it still had many connections with primitiveness, and the transition to civilization itself, of course, was carried out gradually.

In societies that embarked on the path of civilization, the craft was separated from agriculture. The structure of society has become more complex: different social strata have appeared in it, differing from each other in professional characteristics, in material status, in the amount of rights and privileges. The state was being formed. Writing was created, thanks to which people were able to write down emerging laws, scientific and religious ideas and pass them on to descendants.

The variety of forms of organization of the life of society, its legal regulation, the establishment of norms of behavior for members of society has led to a difference in approaches to the formation of systems of law and in the systems of law themselves.

Historically, under the influence of various factors, the established statehood also assumed the formation of its own law, which would be inherent in it in accordance with the customs and moral norms prevailing in a given territory.

The approaches to the organization of law turned out to be different for each country, however, after many years, at the present stage of development of law, we can classify these systems. The variety of legal systems largely depends on the characteristics of the method of legal education. In legal science, such a classification is carried out on a historical-territorial basis, or, to be more precise, on a national basis.

The problem of classification into certain groups or, as some authors point out, the family of legal systems, is one of the main problems of comparative jurisprudence, which has long attracted the attention of comparativists all over the world.

In the search for the classification, a variety of factors were used, not only the ones listed above. These may include: ethical, racial, geographic, religious, as well as division according to legal technique and style of law.

Participants of the I International Conference of Comparative Law of 1900 distinguished between French, Anglo-American, Germanic, Slavic and Muslim legal families, in 1919 the number of legal families was reduced to three:

Romano-Germanic system of law;
the Anglo-Saxon system of law;
the Muslim system is law.

[cm. Annex 1]

The urgency of this problem today is not great, since it does not consider the problem of the formation of one of the legal systems and the development of property rights. Based on the urgency of this problem, its goals and objectives follow.

Objectives of this course work:

analysis of different legal systems
identifying common and distinct features
disclose ownership in various legal systems, find common and individual

Objectives of this course work:

conduct research on this issue, analyze it and

Draw a conclusion, identify the reasons for the differences in legal systems.

OWNERSHIP

1.1 Concept of ownership

Ownership is a very ancient right that arose at the dawn of civilization. Over the centuries, this institution has been improved, adapting to the conditions of a changing world. Gradually, completely new objects and subjects of this law arose (for example, intellectual property and a legal entity), new relations related to this property (rent, etc.) appeared, a characteristic feature of which was the splitting of ownership and property rights between several people. Therefore, an objective need arose for the legislative regulation of these processes. So the Civil Code Russian Federation Article 216 says that along with the right of ownership, real rights are:

the right to life-long inheritable possession of a land plot (Article 265);
the right to permanent (unlimited) use of a land plot (Article 268);
easements (Articles 274, 277);
the right of economic management of property (Article 294) and the right operational management property (Article 296). [No. 1]

At the same time, it is stipulated that real rights to property may belong to persons who are not the owners of this property.

The definition of property rights presents significant difficulties, despite its apparent simplicity and clarity. Until now, science has not established the exact concept of it. According to the most common definition, which coincides with the everyday concept of property rights, the latter constitutes the unlimited and exclusive domination of a person over a thing. So, French law defines the right of ownership as the right to use and dispose of things in the most unlimited way - de la manière la plus absolue... Krome calls ownership a full right ( Vollrecht). However, the sign of unlimitedness meets the objection from the point of view that the property right, like any right, is always limited, that in reality all legislation sets limits to the will of the owner. To avoid this feature, the concept of property rights is established as the right of the most complete domination. So, for example, Randa defines the property right as secured by an objective right and it has limited legal possibility of relatively complete ( relativ vollste Herrschaft) direct dominion over the thing. Due to the failure of the definitions proposed in science, we can remain with the definition given in Russian legislation. As imprecise as other definitions, it at least has legislative authority for itself. In practice, this definition has to be reckoned with, because the law lists the powers that make up the property right. If we extract from the legal definition everything that is not related to the concept and save only the features contained in it, then we get the following definition of the concept of ownership: power in the manner established by civil laws, exclusively and independently of the person of an outsider to own, use and dispose of property eternally and hereditarily (Article 420). [No. 1]

The property right in the objective sense is a set of legal norms that secure, regulate and protect the ownership of the objects of this right to certain persons. In a subjective sense, the right of ownership can mean the legislative fixation of the order of production, distribution and consumption in the interests of a certain stratum.

The concept of property is defined by the Civil Code through the trinity of rights: possession, use and disposal (clause 1 of article 209). [No. 1]

The right of ownership is understood as the legally enshrined opportunity to own this property, to possess it, to hold it in one's hands. The right to use consists in the right to exploit, economic or other use of property by extracting useful properties from it, its consumption. It is closely related to the right of ownership, since property can only be used by actually owning it. The authority to dispose means the ability to determine the legal fate of a thing by changing its ownership, state or purpose (alienation by agreement, inheritance, destruction, etc.).

The owner has all these powers, in contrast to the owners of other property rights.

From all of the above, it follows that the purpose of the property right is the full use by the owner of the thing. This means that he has the right, at his discretion, to perform any actions in relation to the property belonging to him that do not contradict the law and other legal acts, and do not violate the rights and interests of other persons protected by law. The owner has the right to alienate his property into the ownership of other persons, transfer to them, while remaining the owner, the rights to own, use and dispose of the property, pledge the property and burden it in other ways, dispose of it in a different way (clause 2 of article 209). [No. 1]

1.2 Acquisition, Limitation and Termination of Ownership

The rights to property, the law says, are acquired in no other way than in the ways specified in the laws (P.699) [№11], therefore, the right of ownership of things can only be acquired by the means specified in the law. The method of acquiring property is called such legal fact, with which, according to the point of view of objective law, the establishment of property rights in the person of a given subject is connected. Our legislation offers the following system of methods for acquiring property rights:

1) methods of donation and gratuitous, namely: grant, allotment, gift, testament;

2) inheritance;

3) mutual methods, what are the exchange and purchase;

4) contracts and obligations.

This classification is completely untenable. A contract is generally not a method of acquiring property, but only a basis, and, moreover, defining a special place for contracts, the law overlooks the fact that the same contractual character is inherent in the gift, grant, exchange and purchase. On the other hand, the classification adopted in our law suffers from incompleteness - for example, it does not indicate the prescription of ownership as a way of acquiring property rights recognized by Russian law.

In theory, it is generally accepted to divide the methods of acquiring property into primary and derivative ones. The method will be initial if the ownership right in the person of this subject is established independently, independently of another person, i.e. to objects that have not yet constituted someone else's property, or to objects that, although they were the property of another person, are subject to the domination of the new acquirer, regardless of the rights of the previous owner. The method will be derivative when the ownership right represented by this subject is established on the basis of the right of the previous owner.

Introduction

It is generally recognized that property is necessary, one of the most important conditions for a normal, full-fledged life of any person, giving him the opportunity to be an equal member civil society, actively participate in his life, exercise his rights, fulfill duties and bear responsibility. No wonder in ancient times it was believed that a person can only take part in the management of the affairs of the state and society when he has property. Property contributes to the consolidation of stability, moreover, society, or limitation of power and moreover, the state, or is an effective means of creating national and moreover personal wealth, or provides everyone with the fruits of his labor, or supports a person, moreover, self-esteem and, moreover, self-respect, moreover, Ownership is, and moreover, a kind of continuation of the person and or reflection of property, and in the material world. Further According to V. Further S. Further, Solovyov, either "with property is an ideal continuation, moreover, personality, and with things to do with things, or, moreover, transferring things, and moreover," ... This is expressed both in the system of legal norms regulating these relations and forming the institution of property rights, and in securing a certain measure of legal power for a specific person who is the owner of a given thing. Based on the classical concept, the mechanism of property relations is based on the right of ownership to material objects, things, while the very concept of property is equated as adequate to the concept of a thing (the concept of "material" property). In our country, property issues are regulated in detail and in detail The Civil Code RF. The concept of ownership is defined by the Civil Code through the trinity of rights: ownership, use and disposal (clause 1, Article 209 of the Civil Code of the Russian Federation). One of the fundamental guarantees for the existence of law in the Russian Federation private property is Article 8 of the Constitution of the Russian Federation, which stipulates that in the Russian Federation private, state, municipal and other forms of ownership are recognized and protected in an equal manner. This is closely related to the proclamation of rights and freedoms as the highest human value, and their recognition, observance and protection of the duty of the state, and with the desire to preserve in the economic system a very effective personal interest characteristic of private property, with the need, reviving private property, to pay special attention to it. The Constitution of the Russian Federation guarantees equal protection for all forms of ownership. In contrast to the previous legislation, which established advantages in the protection of the socialist, and in particular state property, the current legislation implements the principle of the unity of qualifications and sanctions for crimes against property, no matter whoever it is. Thus, Russian state protects property in its various forms on an equal basis. Of course, property rights as one of the foundations constitutional order The RF is the fundamental institution of the Russian legal system. Property rights protection is enough actual topic to date. The relevance of the work is due to the fact that in recent decades a variety of forms of ownership has been established in Russia, and significant changes in the legal regulation of property relations have become inevitable. At the same time, not only the forms and types of property were transformed, but also the content subjective law property. There is a need for further development of the doctrine of property rights. Now one of the main trends in the development of the world is globalization - the process of world economic, political and cultural integration. The process of forming transnational corporations operating in many countries has been widely developed. The range of foreign economic relations has expanded significantly in the world. Therefore, today, in connection with significant transformations in property relations, the problems of a comprehensive study and development of a general teaching on the content of property rights have acquired particular importance. The purpose of the course work is to study property rights in the structure of different legal systems. To achieve this goal, it is necessary to solve the following tasks: - to define the concept and characteristics of property rights; - to determine the structure of the legal systems of the modern world; - to study the peculiarities of property rights in the Romano-Germanic and Anglo-Saxon legal systems as the main legal systems of our time. The object of work is social and legal relations arising from the implementation of the owner's powers in various legal systems. The subject of work is the norms of legislation governing the powers of the owner in various legal systems. Theoretical basis the works were composed by T.Yu. Astapova, S.S. Alekseeva, M.A. Alexandrina, M.I. Braginsky, A.V. Venediktova, V.V. Vitryansky, D.I. Meyer, M.V. Zakharova, A.I. Kosareva, I.B. Novitsky, I.S. Peretersky, R.B. Pozdnyakov, K.P. Pobedonostsev, V.A. A.K. Romanov, V.I. Sinaisky, E.A. Sukhanov, R.A. Tarkhova, V.A. Rybakova, Yu.K. Tolstoy and others. The normative base of the work was international legislation, the Constitution of the Russian Federation, normative legal acts of civil and constitutional legislation of different countries, as well as the work of Russian and foreign legal scholars and economists. The work used various methods of interpretation of regulatory legal acts, methods of analysis and synthesis, comparison techniques. The structure of the work consists of an introduction, two chapters, one of which contains two and the second three subparagraphs, conclusions, bibliography, applications.

Introduction …………………………………………………… .. .................................... 7 1.2 property rights in various countries ........................ 12 CHAPTER 2. THE lEGAL sYSTEM OF THE PRESENT 2.1 The concept of a legal system .............................. ………………. …… 33 2.2 Romano-Germanic legal family ………………………………… ... 33 2.3 Anglo-Saxon legal family ………………………… …………… ... 37 Conclusion ……………………………………………………………… ... 49 List of used literature ………………… ……………………… ..52 Appendices …………………………………………………………………… ..54

Bibliography

1. Normative legal sources 1) The Constitution of the Russian Federation. 2) Part two of the Civil Code of the Russian Federation dated January 26, 1996, No. 14-FZ (as amended on June 26, 2007) // SZ RF. - 1996. - No. 5. - Art.410. 3) Part one of the Civil Code of the Russian Federation of November 30, 1994, No. 51-FZ (as amended on June 26, 2007) // SZ RF. - 1994. - No. 32. - Art. 3301.4) Federal Republic of Germany. Constitution and legislative acts... Per. with him. / Ed. Yu. P. Uryasa. - M., 2015.5) France. Constitution and statutes. Per. with fr. - M., 2016.6) English civil law. - M., 2016. 2. Textbooks, teaching aids of domestic scientists 1) Reader on the history of state and law of Russia: Textbook. Compiled by UP. Titov. - M .: TK Welby, Prospect Publishing House, 2004. 2) Matuzov N.I., Malko A.V. Theory of states and law: Textbook. / 2nd ed., Rev. and add. - M .: Jurist, 2016.3) Theory of state and law. Ed. V. M. Korelsky and V. D. Perevalov. - M .: INFRA M-Norma, 2016.4) Cherdantsev A.F.Theory of state and law: Textbook for universities. - M .: Yurayt-M, 2016.5) Alekseev S.S. Theory of State and Law M., 2015.6) David R. Geoffre-Spinozi K. Basic legal systems of our time. M., 1999.

An excerpt from the work

CHAPTER 1. THE RIGHT OF OWNERSHIP IN THE THEORY OF LAW 1.1 The concept of the right of ownership The right of ownership is a system of legal norms governing the ownership, use and disposal of the owner of the property or thing belonging to him at the discretion of the owner and in his interests, as well as to eliminate the interference of third parties in the sphere of his economic domination. Ownership takes a special place in civil law. It is one of the leading institutions in this branch of law. Its significance is due to the fact that all property relations are actually based on the right of ownership. Property can be viewed as a historically defined social relationship that develops between people about the possession of the means of production and consumer goods. Property rights are understood differently in different societies. In Western countries and other developed countries, it is respected and inviolable, it is this understanding of property rights that is the reason and guarantee of their prosperity. As practice shows, the understanding of property rights is inextricably linked with the level of development of states, therefore, societies with a lower legal culture and different from the Western understanding of property rights have a lower standard of living and problems with building a civilized democratic society. But the existence of needs and the need to satisfy them are recognized in all countries, therefore the right to property is considered to be especially important everywhere. It is customary to distinguish between property rights in the objective and subjective sense. Property right in the objective sense is a set of legal norms that regulate social relations for the appropriation of material goods and provide the owner with the right to own, use and dispose of property within the limits established by law. In the subjective sense, the right of ownership is understood as the right of a specific owner at his own discretion to own, use and dispose of the property belonging to him.

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Introduction
Chapter 1. Legal regulation of the owner's powers in the Romano-Germanic and Anglo-Saxon legal systems
1.1 Owner's powers in the Romano-Germanic legal system
2.2 Content and protection of ownership
Conclusion
List of sources used
Introduction
The relevance of research. The problems of property rights have become especially relevant in our country during the preparation and implementation of socio - economic transformations that required the formation of a new domestic legal order. It is no coincidence that the first laws that consolidated its foundations and had a fundamental impact on the development of all Russian legislation were the laws on property: Law of March 6, 1990 No. 1305-I "On Property in the USSR" and Law of December 24, 1990 No. 443 -I "On property in the RSFSR". They were the basic legislative acts that formalized the transition to market economy; on their basis and now taking into account the ideas laid down in them, the Fundamentals of Civil Legislation of the USSR and the republics of May 31, 1991 were then created and, finally, the current Civil Code of the Russian Federation. The fundamental provisions of these laws are also reflected in the current Constitution of the Russian Federation in 1993.

With some shortcomings in the content and design of property laws, it must be emphasized that it was they who first established a number of fundamental legislative decisions that secured the transition to a market economy: equality of all forms of ownership and the rejection of the privileged regime of state property, recognition and protection of private property, denationalization of the economy and development private entrepreneurship in various organizational and legal forms. Thus, the fundamental importance of legal registration property relations.

Under these conditions, when characterizing property, one has to abandon the reproduction and analysis of ideological and political economic categories and approaches, traditional for the Soviet era, focusing on legal, civil - legal aspects of the considered problematics.

At the same time, it is still impossible to assert that the national civil law doctrine has already created an integral teaching on the right of property. There is clearly a lack of deep, basic research this problem, which has an extremely negative effect on the development economic activity and law enforcement practice.

The object of the research is public relations in the sphere of the implementation of property rights.

The subject of research is civil law characteristic property rights, which means a legally secured opportunity for the person who appropriated the property to own, use and dispose of this property at his own discretion in various legal systems.

The aim of the work is a theoretical analysis of the rights of the owner in various legal systems.

Research objectives:

Explore the concept, essence and types of property rights;

Analyze the legal nature of property rights;

Identify the signs of ownership as a property right;

Study the peculiarities of ownership, use and disposal in the institution of property rights in various legal systems;

Formulate proposals for improving legislation.

Work structure. this work defined by the range of problems under study, its goals and objectives. The work consists of an introduction, two chapters, a conclusion and a bibliography.

Chapter 1. Legal regulation of the owner's powers in the Roman-Germanic and Anglo-Saxon legal systems

1.1 Owner's powers in the Romano-Germanic legal system

Analysis of various sources shows that it is customary to characterize the content of subjective property rights through its constituent powers. In paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the powers of the owner are disclosed with the help of the traditional for Russian civil law "triad" of powers: possession, use, disposal, covering in its totality all the capabilities of the owner. "The triad of powers" possession, use, disposal "is reproduced in all legal definitions of property rights and is one of the most stable verbal formulas used in Russian legislation"- writes RB. Pozdnyakova R.B. Pozdnyakova The triad of the owner's powers // History of State and Law. - 2006. - No. 1. - P. 34..

For the first time, it was legislatively enshrined in Art. 420 th. H. 1 of the Code of Laws of the Russian Empire, establishing. That the right of ownership belongs to the one who, having been the first purchaser of property for the legal consolidation of it into private ownership, received power in the order, civil laws established, exclusively and independently of the person of an outsider to own, use and dispose of it ... "Civil laws with explanations of the Governing Senate and comments of Russian lawyers / Compiled by IM Tyutryumov. Book two. - M .: Statut, 2004 .-- S. 21 ..

Then the triad of powers was enshrined in the Civil Code of 1922 and 1964 (Article 92). Item 2, Art. 1 of the Law on Property in the USSR was devoted to the powers of the owner, and the following, adopted before the new Civil Code, a normative legal act: Fundamentals of Civil Legislation of the USSR and the republics of 1991 in paragraph 71 of Art. 45 said:

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

Foreign legislation gives a different interpretation of the powers of the owner. So, for example, under Art. 903 of the German Civil Code, the owner disposes of the thing at his own discretion; in accordance with Art. 544 of the Civil Code of France, the owner uses and disposes of things in the most absolute way France. Constitution and statutes. Per. with fr. - M., 1989. - S. 35 ..

In Russian law, there are different views on the essence and meaning of the triad. In the legal literature, many issues are considered, the main ones of which are: a) the universality of the triad for disclosing the content of property rights; b) completeness of the volume of the triad in relation to the volume of property rights; c) a historical place, the "attachment" of the triad to a certain era, and, consequently, to a special concept of property rights. The answers to these questions vary greatly.

In particular, A.V. Venediktov believed that the triad characterizes what is common to property rights in all formations A.V. Venediktov. State socialist property. - M., 1948 .-- S. 245. K. Sklovsky points out that it is practically impossible to prove the possibility of including in the property right a competence that is not identified with any of the elements of the triad, since the argumentation, even if it is sophisticated, will still remain more or less vulnerable. The same problems are characteristic of attempts to prove the possibility of the existence of property rights beyond the triad. But at the same time, the triad is assessed by him as a form that is not able to become a means of revealing the essence of property, and this is despite its practical convenience Sklovsky K. Property right. M .: Statut, 2008 .-- P. 132.

In our opinion, here it is necessary to take into account the specifics of the approach of A.A. Rubanov to the assessment of the place and role of the triad. Its main task was to highlight the essential elements and construct a theoretical model of property rights, mainly based on the study of the specifics of the legal definition A.A. Rubanov. Problems of improving the theoretical model of property law // Development of Soviet civil law on the present stage... - M .: Nauka, 1986. - P. 105 .. From the position of the author, the appearance of the triad in Russian legislation was to a certain extent accidental: in the Civil Code of Napoleon, in order to overcome the medieval fragmentation of property, an indication was simultaneously used of both the right of property and the absoluteness of this right with an emphasis on the latter, and later M. Speransky, wishing to borrow the liberal model of the FGK for Russian legislation, reproduced it, emphasizing the right of ownership (triad) to mask it. by .: Alexandrina M.A. Content of property rights under modern Russian legislation: Some problems of theory and legal regulation: Author's abstract. dissertation. Ph.D. - Volgograd, 2002 .-- S. 43-44. ...

Civil scientists come to the conclusion that in the legal definition of property rights, several key elements and a triad can be distinguished - only one of them, albeit quite significant. And the lack of mention in the law of the specific powers of the owner "possession, use, disposal" is unlikely to greatly violate the stability of law and order and reduce efficiency legislative regulation property relations.

In our opinion, for the construction of a theory of property rights, the fact of relegating the triad to the background or diminishing its role for the concept of property rights does not in itself lead to strong theoretical breakthroughs or progress in legal science. The triad has a long tradition of existence in legislation and in the theory of law and, as noted by many researchers, it acts as an integral element of at least two concepts - the right of divided (split) property and the right of absolute property, which existed in two different historical eras - feudal and capitalist.

The laconicism and seeming limitedness of the triad of powers of the owner of the allotment imply a much broader content than just the verbal form "possession, use, disposal", since at different times any manifestation of ownership was adjusted to one of the known powers (to which it was closer), and as a consequence - the concepts included in the triad expanded.

In this regard, the statement that the problem of the triad is a problem of the history of law is not entirely justified. The origin of the triad really has deep historical roots and rightfully deduced from the Middle Ages, the formation of feudal relations. But the antiquity of the legal structure does not diminish its significance for the theory of law and the concept of property rights, the content of which it was intended to demonstrate for more than five hundred years by A.A. Podoprigor. Property-legal ways of protecting slave property in Roman law. - M., 1996 .-- S. 26.

The connection between the triad of the owner's powers (as well as other definitions based on the principle of enumerating powers) with the concept of property rights as the relationship of a person to a thing or as a relationship between persons is ambiguous. Tying a triad to one or to the other will mean a significant error that can lead to the loss of one or another part of its legal content Khokhlov S.A. Ownership and other property rights // VVAS. - 1995. - No. 8. - S. 118-119 ..

Quite interesting and still relevant for the states of the Romano-Germanic legal system, the classification of powers that form the right of ownership at the end of the 19th century. put forward by M. Planiol English civil law. - M., 2005. - S. 45-46 .. In accordance with it, property rights are divided into two parts: a) material acts of use and consumption; b) on legal acts... A variation of this classification is the so-called bipatride division of the owner's powers into: a) the powers of use and consumption; b) the powers of the order. The emphasis in such a classification, as a rule, is placed on the powers of the order, since it is the order that is associated with the owner's powers to legal acts, and it is this that reflects the understanding of property rights, which determines the nature of the ties between participants in public and legal relations. The power to dispose is therefore often characterized as the most important part of the property right. It is sometimes emphasized that this authority in its pure and primary form is exclusive, not constituting in full the content of any other proprietary right, except for property rights (for example, it is in this form that it is recorded in the legislation of a number of Latin American states) V.V. Private ownership of land in Latin America. - M .: Zertsalo, 1997 .-- S. 80..

The removal of any element from the triad is impractical and that it is in the aggregate that they allow us to understand the right of ownership, but it should be borne in mind that each of the three powers has an independent meaning. As well as it is inappropriate to add any authority to the content of the property right. When developing the new Civil Code of the Russian Federation, it was proposed to expand the triad of powers through the authority to manage property, but "the developers of the code did not follow this path, proposed by many, taking into account all the fashion trends in terms of disclosing property rights." It has been argued that the famous triad does not encompass such authority as governance. Ultimately, scientists came to the conclusion that “management can be considered as an integral part of the right of ownership to dispose of property, that is, as a way of exercising the right he already has by order of M. A. Aleksandrina. The content of property rights under modern Russian legislation: Some problems theory and legal regulation: Author. dissertation. Ph.D. - Volgograd, 2002 .-- S. 14 ..

Thus, we can conclude that the content of the triad is much more universal than some of the above-mentioned civil scientists imagine. Its significance is confirmed by: 1) practical indispensability, which manifests itself in an unconditionally unlimited set of legal and factual possibilities assumed by the triad; 2) the absence of any powers that could not be summed up under the triad formula; 3) compliance with the two main forms of the concept of property rights. All this gives grounds to assert that the triad will retain its positions both in theory and in Russian legislation for a long period of time.

1.2 Owner's powers in the Anglo-Saxon legal system

Historians of law distinguish two main traditions in the understanding of property rights - continental (or Romano-Germanic) and Anglo-Saxon Reader on the history of state and law of Russia: Textbook / Comp. Yu.P. Titov. - M .: TK Welby, Prospect Publishing House, 2004. - S. 123-124. ... The first considered it necessary to concentrate all property rights to an object in the hands of one owner, considering cases of dispersal of powers among several persons as feudal remnants. Its classic embodiment was the Code of Napoleon, where private property was proclaimed not only “sacred and inviolable”, but also “unlimited and indivisible” V.A. Tarkhov, V.A. Rybakov. On the concept of property rights // Lawyer. - 2002. - № 4. - P. 15 .. In contrast to this, the Anglo-Saxon legal tradition retained many institutions of feudal law, allowing, in particular, the possibility of fragmentation of ownership of any object on the powers of several persons. If the continental tradition represented the right of property as something single and indivisible, then the Anglo-Saxon tradition represented the aggregate of partial powers of the Federal Republic of Germany. Constitution and statutes. Per. with him. / Ed. Yu.P. Uryasa. - M., 2001 .-- S. 123. “The second tradition is more flexible and realistic. A single and indivisible right is nothing more than an ideal construction, and in real life separate powers always entered into various combinations and could each separately belong to different persons. Splitting the right into partial powers is a normal practice, and it would be wrong to regard it as evidence of the erosion of private property, ”writes A.P. InshevInshaev A.P. Trust Management Institute in Russia // Banking Law. - 2000.- No. 3. - S. 32 ..

The Anglo-Saxon legal tradition undoubtedly influenced the formation of the initial ideas of the theory of property rights. Property right is defined in it as a set of feasible economic decisions, or, in full accordance with this tradition, as a “bundle of partial powers”. At the same time, the very classification of rights and forms of their protection can be made according to various criteria, depending on the nature of the problems being studied.

In the Anglo-Saxon tradition, property rights are divided into the rights of owners: consumption, destruction, modification, use, management, sale, donation, income generation, leasing, bequest, provision as collateral, restrictions on non-owners, prohibitions on: appropriation, confiscation, damage , pollution, use without permission.

The English lawyer A. Onore drew up the "complete" liberal right of private property as consisting of 11 elements: the right of ownership; the right to use; management right; the right to income; the right to the "capital value" of a thing; the right to security; the right to transfer a thing by inheritance or by will; indefinite term; prohibition of harmful use; liability in the form of a penalty; residual character of which you can make up to one and a half thousand combinations of Cit. by: Edward Jenks. English law. Translation by L.A. Luntz. - M., 1947. - S. 127 ..

From the understanding of property rights as a set of feasible economic decisions, it follows that any act of exchange is nothing more than the exchange of bundles of powers. The wider the set of powers assigned to the resource, the more precisely they are defined and the more reliably protected, the higher its usefulness. Thus, an own thing and a rented thing have different utility for the consumer, even if they are physically completely identical. A house has different values when the landlord has the right to prohibit the construction of a gas station nearby and when he is deprived of such an opportunity. The seller is forced to offer in the act of exchange a larger physical quantity of the same good, if the powers assigned to him are severely limited.

The bundles of powers related to various resources determine the consequences that the owner will have to bear for the decisions he makes. Thus, they influence the choice and use of resources.

So, in the case law of Anglo-American law, which, by virtue of its peculiarities, does not know the concept of property rights, there are from 10 to 12 different powers of the owner, moreover, they are capable of being simultaneously with different persons in different combinations, which is unacceptable for our system Edward Jenks. English law. Translation by L.A. Luntz. - M., 1947. - S. 127 ..

Chapter 2. Theoretical and legal analysis of property rights in Russia

2.1 Concept, signs and essence of property rights

Property rights constitute an independent type of subjective civil rights. In addition, subjective rights can be of a proprietary and obligatory nature. Theory of state and law / ed. N.G. Alexandrova. M .: Jurid. Lit., 1974.S. 582-587 ..

You can define the real right as a subjective civil law that arises in relation to a thing and formalizes the legal connection of the subject with the thing, domination over it, allows you to satisfy your interest without the mediation of other persons who are obliged not to interfere with the exercise of the powers belonging to the subject, has an absolute nature of protection and the right to follow Gribanov V.P. Implementation and protection of civil rights / V.P. Gribanov. M .: Legal Literature, 1988.S. 128. ...

Property rights include, first of all, the right of ownership, which, in fact, is an absolute subjective right, which gives its owner the right to own, use and dispose of his property (Article 209 of the Civil Code of the Russian Federation).

In Russia, the law discloses the content of the property right through the traditional for Russian law "triad" of powers, where the right of ownership is understood as the statutory opportunity to have this property in one’s household; the right to use - the ability to exploit this property, extracting useful properties from it, to consume it; the power of disposal - the ability to determine the legal fate of the property.

Since the disclosure of the content of property rights does not end with only the definition owned by the owner powers for the exercise of his right to property, it is necessary to stipulate the specific features characteristic of these powers precisely as the powers of the owner of the property V.A. On the concept of property rights. M .: Soviet Literature, 1987.S. 123. ...

First, the owner exercises his powers at his own discretion. So, according to paragraph 2 of Art. 209 of the Civil Code of the Russian Federation, the owner of the property has the right, at his discretion, to perform any actions with respect to the property belonging to him that do not contradict the law, other legal acts and do not violate the rights and interests of other persons, including alienating the property into the ownership of other persons, transferring it to them, remaining the owner, the powers of possession, use, disposal, pledge property, burden in other ways, dispose of otherwise. If the owner himself owns and uses the property, it is usually enough for him to exercise his right that all third parties refrain from any encroachment on this property. When exercising the authority to order, as a rule, it is necessary to enter into various relations with other participants in civil turnover, conclude appropriate agreements, etc.

Second, the measure of possible behavior of the owner in relation to the property belonging to him is absolute and does not depend on the will of other persons. This is the main distinctive feature absolute ownership. The owner has the right to use the thing belonging to him for any activity not prohibited by law.

Nevertheless, even in relation to property rights, one cannot speak of its infinity. The legislator establishes two restrictions for the owner, which the latter must always adhere to: firstly, his actions in relation to his own property should not contradict the law and others regulations; secondly, he must not violate the rights and legitimate interests of others by his actions. In addition, the owner of the property is obliged to comply with the above-mentioned limits for the exercise of his right, in some cases he is also obliged to allow limited use of his property by other persons (for example, an easement).

Ownership is not the only, albeit the most important, type of property rights. In this case, all other property rights are limited rights Theory of State and Law / ed. N.G. Alexandrova. M .: Jurid. Lit., 1974. S. 134 ..

Property as an economic category is the relationship between people and other participants in social relations about things that consist of belonging material values to one person and, accordingly, in the alienation of these same benefits from all other persons. Property is considered as a set of possible actions in relation to a thing, due to its consumer properties, the ability to meet the needs of an individual, their associations and society as a whole. Civil law: textbook. At 3 o'clock, Part 1 / ed. V.P. Kamyshansky, N.M. Kor-shunov, V.I. Ivanova. M .: Eksmo, 2010.S. 400-405; Bratus S.N., Ioffe O.S. Civil law. M .: Knowledge, 1967.S. 228; A.V. Venediktov State socialist property // Selected works on civil law. T. II. M .: Soviet Literature, 1984.S. 357; Gribanov V.P. Implementation and protection of civil rights / V.P. Gribanov. M .: Legal literature, 1988. S. 128; Tarkhov V.A. On the concept of property rights. M .: Soviet Literature, 1987.S. 23 ..

Legal regulation of property relations consists of certain directions. First, the very possibility (or impossibility) of material goods belonging to individual participants in property turnover is established; secondly, the type and measure of possible behavior of the owner of a certain property, based on the law and protected by it, are established; thirdly, at the legislative level, legal means of protecting property rights from encroachments by other persons are envisaged.

Property right in the objective sense is a complex legal institution that unites the rules that govern a certain part of property relations. This legal institution is formed from specific legal norms governing property relations.

Ownership in the subjective sense is a subjective civil law, which gives its owner the right to own, use and dispose of his property (Article 209 of the Civil Code of the Russian Federation). This is an exclusive opportunity for the subject to own, use and dispose of certain material goods.

In the Concept for the Development of Civil Legislation of the Russian Federation, it was proposed to define the right of ownership as a real right, which gives a person the most complete domination over a thing, including by owning, using and disposing of it, as well as performing any actions in relation to it that are not prohibited by law and do not violate rights and legally protected interests of other persons (clause 3.2) Akhmetyanova Z.A. Real law: Textbook. M .: Statut, 2011.S. 143.

Unfortunately, the Draft Federal Law on Amendments to the Civil Code of the Russian Federation did not propose a norm fixing the concept of "ownership", and only when determining the content of ownership (Art. at his own discretion, to perform any actions in relation to the thing belonging to him, if this does not contradict the law and does not violate the rights and legally protected interests of other persons, as well as eliminate any illegal influence on this thing from third parties.

Since any real right is the relationship of the subject to the thing, which legally fixes his dominance over the thing (while the law of obligations is the relationship between the subjects acting as carriers of rights and obligations), the first of the signs of any real right should be called the legal connection of the subject with a thing, dominion over it. This feature is most fully manifested precisely in relation to such a property right as the right of ownership.

The second sign of a real right is associated with the definition of its object. The object of ownership is always a certain thing (property). Moreover, the qualitative characteristics of the thing do not have any significant value. The Concept for the Development of Civil Legislation of the Russian Federation rightly points out that these should be individually defined things, as well as things defined by generic characteristics, in the event of their individualization.

As for the correlation of concepts such as "thing" and "property", then in many respects these concepts intersect, coincide, since the objects of the material world, which have a certain materialized form, act as property first of all. things. However, the term "property" is somewhat broader in scope, since, in particular, along with the concept of "thing" it also covers the concept of "property rights".

There is no consensus among civilians as to what kind of objects the subject may have on the right of ownership. We share the position of those authors who believe that the property right has as an object not only things, but also rights (including obligations) See: Braginsky M.I., Vitryansky V.V. Contract law. Book one: General Provisions... M .: Statut, 2010. S. 228-235 .. Although in the domestic literature there are other views on this problem. For example, V.A. Dozortsev believes that “attempts to declare“ property ”in general, as Article 128 of the Civil Code says about it, are erroneous.” See: V.A. Fundamental features of property rights in the Civil Code // Civil Code of Russia: Problems. Theory. Practice: collection of memory of S.A. Khokhlova / otv. ed. A.L. Makovsky. M .: Publishing house of International. center of financial and economy. development, 1998. S. 232; Sinaisky V.I. Russian civil law. Classics of Russian Civil Law), Moscow: Jurist. 2005.S. 154; Proceedings on Civil Law / edited by A.A. Ivanova. M .: Infra-M, 2003.S. 147 ..

The direct relation of the owner to a certain thing as to his own gives him the opportunity to use this thing in his own interests without the participation of other persons, since, like other property rights, the right of ownership is carried out mainly by the actions of the owner of the property himself.

Since the right of ownership, being a real right, is an absolute right, it is assumed that all other persons are obliged not to interfere with the exercise by the owner of his powers. That is, the right of one person - the right of the owner - corresponds to the passive obligation of an indefinite circle of persons to refrain from violating his ownership right to a certain thing (property). The obligation of such passive subjects is negative, since they are obliged, first, to refrain from using someone else's thing; secondly, to refrain from committing actions that violate someone else's property rights.

The following is directly related to the named feature - the absolute nature of the protection of property rights. However, it should be noted that in accordance with the current civil legislation, the absolute nature of protection (as well as such a feature as the right of succession) can characterize not only the real right, but to some extent also the right of obligation.

Since the right to property is absolute, this makes it necessary to protect it in civil law with the help of real law suits, which can be directed against any persons who violate the right to property. The owner of the property has the opportunity to protect his right by filing a vindication or negative claim, a claim for the recognition of ownership, etc.

With regard to property rights, it is fair to talk about the presence of such a feature as an indefinite character, while for other limited property rights, this feature, as a general rule, is not typical.

If we correlate the property right and the signs (properties) of any real right, which are named in the Concept for the Development of Civil Legislation of the Russian Federation, the following is obtained: the property right arises and terminates on the grounds established by the Civil Code of the Russian Federation and laws issued in accordance with it; ownership is a property right by virtue of a direct indication of the law, namely the Civil Code of the Russian Federation; the content of the property right is determined by the Civil Code of the Russian Federation; the procedure for exercising this real right is determined by the Civil Code of the Russian Federation and laws issued in accordance with it; the right of ownership provides its owner with domination over the corresponding thing (property); the property right as a property right has priority over other property rights to the corresponding thing (property); the property right, in contrast to other subjective civil rights, in case of violation is subject to proprietary legal protection. In this case, the owner of a thing has the right to use proprietary methods of protection along with the owner of a limited proprietary right to the same thing; the ratio of the powers of the owner and the powers of the owner of a limited real right is determined by the rules of the Civil Code of the Russian Federation on the corresponding real right; ownership of real estate is subject to state registration and arises from the moment of such registration. However, we assume that state registration- it is rather a consequence of the recognition of subjective civil law, in this case - property rights - as real, since the registration of such is carried out precisely because the registered right is real.

property rights civil Russian

The property right is the broadest property right in its content.

The content of property rights is revealed through the traditional for Russian law "triad" of powers - possession, use, disposal (Article 209 of the Civil Code of the Russian Federation), however, the disclosure of the content of property rights does not end only with the definition of the owner's powers to exercise his right to property. Since the powers of the same name may also belong to the non-owner of the property (for example, unitary enterprise as a subject of the right of economic management), it is necessary to stipulate the specific features characteristic of these powers as the powers of the owner of the property.

First, it is specific that the owner exercises the powers belonging to him at his own discretion, which is “lawful, powerful, intellectual-volitional activity for choosing the most optimal option for the implementation of the granted powers in relation to property benefits that ensure the most effective use of the property, taking into account right and legitimate interests third parties "Kamyshanskiy V.P. Ownership: limits and restrictions. M: Unity-Dana; Law and Law, 2000. S. 90; O. V. Bumazhnikova Institute of Succession to Real Estate in the Legislation of the Russian Federation: monograph. Tver: Tver. state University: 2012.S. 76. “The legal specificity of property rights lies not so much in the list of the owner's powers, which may be different, but in their very nature. The powers of the owner give him the opportunity to eliminate, exclude all other persons from the economic use of his property, if there is no will for that ”Khoroshev AL. Ownership of legal entities: author. dis. ... Cand. jurid. sciences. SPb., 2001. S. 8 .. All this allows the owner to own, use and dispose of his property at his own discretion.

The owner has the right, at his discretion, to perform any actions with respect to the property belonging to him that do not contradict the law, other legal acts and do not violate the rights and interests of other persons, including alienate the property into the ownership of others, transfer to them, while remaining the owner, the powers of ownership, use , orders, pledge property, burden it in another way, dispose of it differently. Moreover, in cases where the owner himself owns and uses the property, it is usually enough for him to exercise his right that all third parties refrain from any encroachment on this property. When exercising the authority to order, as a rule, it is necessary to enter into various relations with other participants in civil turnover, conclude appropriate agreements, etc.

Second, the measure of the possible behavior of the owner in relation to the property belonging to him is absolute and does not depend on the will of other persons. This is the main distinguishing feature of absolute property rights. The owner has the right to use the property belonging to him for any activity not prohibited by law.

Nevertheless, the actions of the owner regarding the property belonging to him are not unlimited, since the legislator has established two restrictions for the owner, which he (the owner) must always adhere to: first, his actions in relation to his own property must not contradict the law and other regulations; secondly, he must not violate the rights and legitimate interests of others by his actions. In addition to the fact that the owner of the property must comply with the above-mentioned limits for the exercise of his rights, in some cases he is also obliged to allow the limited use of his property to other persons - for example, in servitude (Articles 274, 277 of the Civil Code of the Russian Federation).

There are cases when the owner of the property is deprived of all three powers in relation to his property at once (for example, in the case of the arrest of the property). However, this situation is temporary, since in the future the owner will either be restored to his rights (Article 304 of the Civil Code of the Russian Federation), or his ownership rights will be terminated on any of the grounds provided for by law Civil law: textbook / edited by A.P. Sergeeva. M .: TK Welby, 2009.S. 280; Civil law: textbook / edited by E.A. Sukhanov. M .: Prospect, 2008.S. 159 ..

Certain additional restrictions on eligibility are provided by the law for land owners ( land plots) and other natural resources. The law stipulates that the ownership, use and disposal of such objects, to the extent that their circulation is permitted by law (Article 129 of the Civil Code of the Russian Federation), is carried out by their owner freely, if this, firstly, does not cause damage environment and, secondly, does not violate the rights and legitimate interests of others. The prohibition to damage the environment is established for the owner of the land and directly by the Constitution of the Russian Federation (Art. 36).

The “good” of owning property and generating income from its use is closely related to the “burden” of bearing the associated costs, costs and risks. As a general rule, it is the owner of the property that bears the burden of financial expenses for maintaining the property belonging to him in proper condition: according to the current and overhaul, security, insurance, utility bills, etc. The owner is also obliged to pay taxes in accordance with the tax legislation of the Russian Federation Agafonova, S.V. Artemenkov, V.V. Bezbakh and others; otv. ed. V.P. Mozolin. - 2nd ed., Rev. and add. Moscow: Prospect, 2012.S. 254.

The legislator in Art. 210 of the Civil Code of the Russian Federation specifically emphasizes the need for the owner to bear the burden of maintaining his property, unless by law or contract this burden or part of it is imposed on another person (for example, the protection of rented property - on the employer, management of bankrupt property - on the bankruptcy commissioner, etc.). etc.). Part of this burden on the property owner is, in fact, the risk of accidental loss or damage to the property, i. E. its loss or damage in the absence of anyone's fault in this Commentary to the Civil Code of the Russian Federation, part one / ed. V.P. Mozolina, M.N. Maleina. M .: Norma, 2006.S. 183; Scientific and practical commentary to the Civil Code of the Russian Federation (itemized) / edited by V.P. Mozolina, M.N. Maleina. M .: UNITI-DANA, 2008.S. 287 ..

For example, the interdistrict Inspectorate of the Federal Tax Service of Russia No. 10 for the Tver Region applied to the Central District Council of the city of Tver with a statement of claim against A.Yu. Petrova, in whose interests the legal representative of O. Petrova acts, with demands to collect the property tax debt in the amount of 1921 p. 43 kopecks, including a tax of 1884 rubles. 56 kopecks and penalties accrued for late payment of tax in the amount of 36 rubles. 87 kopecks

In support of the stated requirements in statement of claim indicated that the minor Petrova A.Yew. the apartment and the parking lot belong on the right of ownership, therefore, on the basis of the Law of the Russian Federation No. 2003-1 dated 09.12.1991 "On taxes on property of individuals", the tax on property of individuals was charged for 2009.

As a result of the consideration of the case, the claims of the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 10 for the Tver Region were satisfied. The required amounts were recovered from Petrova Oh.The. - legal representative of the minor A.Yu. Petrova. - to the budget of the city of Tver in the amount of property tax arrears of individuals in the amount of 1884 rubles. 56 kopecks and a penalty in the amount of 36 rubles. 87 kopecks, and only 1921 p. 43 kopecks And also recovered from Petrova Oh.The. state duty to the state income in the amount of 200 rubles. See: Case No. 2-1745 / 10 / Archive of the Central district court Tver for 2010

Consider the materials of another civil case.

LLC "Repair and Maintenance Enterprise No. 17" filed a lawsuit against V.D. Sokolova, her legal representative Zh.R. Petrova, O.D. Sokolova, her legal representative Zh.S. Grigorieva. on the collection of debts for payment of housing and communal services in the amount of 99690, 28 rubles., penalty for late payment in the amount of 17728, 89 rubles. and court costs for the payment of state fees 3722, 57 rubles.

In the course of the consideration of the case, the court concluded that the claims for the recovery from the legal representatives of the defendants of utility bills and penalties are justified and subject to satisfaction. See: Case No. 2-2395 / 2012 / Archive of the court Central region Tver for 2012

The owner also bears the risk of accidental loss or accidental damage to his property, unless otherwise provided by law or contract. As a general rule, the owner of property bears the risk of accidental loss or accidental damage to property, i.e. the risk of its loss, shortage or damage (spoilage) in the absence of anyone's fault. Commentary on the Civil Code of the Russian Federation (itemized) / edited by N.D. Egorova, A.P. Sergeeva. M .: Prospect, 2012. P.297 .. The specified loss or damage to property may occur as a result of force majeure or by virtue of an incident (case), since in these cases there are no persons who can be held responsible for the failure to preserve the property of the owner. In fact, this risk is part of the burden of maintaining the property.

From the above, we can conclude that the Russian legal order is characterized by the characteristic of property rights as a traditional "triad" of the owner's powers, which was first legislatively enshrined in the Code of Laws of the Russian Empire in 1832 (vol. X, part 1), from where it was subsequently transferred to the Civil Code of the RSFSR 1922, in the Fundamentals of Civil Legislation of the USSR and the Union Republics of 1961, in the Civil Code of the RSFSR in 1964, in the Fundamentals of Civil Legislation of the USSR and the Republics of 1991 and, finally, in the current Civil Code of the Russian Federation.

Civil protection of property rights and other property rights is understood as the totality of the means provided for by civil law, used in connection with violations committed against these rights and aimed at restoring or protecting the property interests of their owners. ... P.V. Krasheninnikov. - 2nd ed., Rev. and add. M .: Statut, 20120.S. 624.

In recent years, the courts of the Tver region have considered many cases related to determining the procedure for using a common thing by co-owners, mainly it comes about land plots at private houses, once built for two or three owners. Of course, the use of other real estate (residential premises, garages, objects common use: attics, basements, etc.) Case No. 2-85 / 07 / Archive of the Proletarian Court of Tver for 2009; Case No. 3-81 / 07 / Archive of the Proletarskiy District Court of Tver for 2010

First of all, it is necessary to highlight the proprietary means of protecting property rights, characterized by the fact that they are aimed directly at protecting property rights as an absolute subjective right, are not associated with any specific obligations and have the goal of either restoring the ownership, use and disposal of the owner belonging to him. thing, or remove obstacles or doubts in the exercise of these powers. Accordingly, real-legal claims include a claim for the reclamation of property from someone else's illegal possession, a claim for the elimination of violations not connected with deprivation of ownership, and, finally, a claim for recognition of property rights. In the exact sense of the word, the property right as a specific subjective right is protected only with the help of the claims of the named group. ed. E.A. Sukhanov. M .: Statut, 2010.S. 563 ..

The second group of civil legal means of protecting property rights is formed by legal means. These include, for example, a claim for compensation for harm caused to the owner, a claim for the return of unjustifiably acquired or saved property, a claim for the return of things provided for use under a contract, etc. All of them are characterized by the fact that their constituent claim arises not from property rights as such, but is based on other legal institutions and subjective rights corresponding to these institutions. So, if the owner rented out the property belonging to him, from the return of which after the expiration of the term of the contract, the tenant evades, the rights of the owner will be protected by the rules contract law rather than property rights. In other words, law of obligations protects property rights not directly, but only ultimately. In a number of cases, for example, when a thing has died, which means that the right of ownership to it has ceased, these funds are no longer aimed at protecting the right of ownership, but at protecting the property interests of the owner.

The third group of civil legal means of protecting property rights is made up of those that do not relate to either proprietary or legal means, but follow from various institutions of civil law. These are, for example, the rules on the protection of the property rights of the owner, recognized in the prescribed manner as missing or declared deceased, in case of his appearance (Articles 43, 46 of the Civil Code of the Russian Federation), on the protection of the interests of the parties in the event that the transaction is declared invalid (Articles 167 - 180 Civil Code of the Russian Federation), on the liability of the mortgagee for damage and loss of property (Article 344 of the Civil Code of the Russian Federation), etc.

Finally, in a special, fourth group should be allocated those civil law means that are aimed at protecting the interests of the owner when the property rights are terminated on the grounds provided for in the law. These include, in particular, guarantees established by the state in the event that property owned by citizens and legal entities becomes state property (nationalization). Obligatory payment the value of property is also provided for by law when it is seized in the interests of society by decision of state bodies in cases natural Disasters, accidents, epidemics, epizootics and in other circumstances, wearing extraordinary character(requisition); when confiscated from the owner by means of redemption by the state or sale at a public auction with mismanaged contents cultural property(Article 240 of the Civil Code of the Russian Federation); when seizing a land plot for state or municipal needs(Articles 279 - 283 of the Civil Code of the Russian Federation) and in some other cases.

Based on the foregoing, it should be concluded that civil protection of property rights is understood as a set of special means provided for by civil law that can be used in connection with violations committed against the rights of the owner and which are aimed at restoring and protecting the property interests of the owner of the property. At the same time, civil law methods of protecting property rights should be used along with other methods (criminal law, administrative law, etc.).

2.3 Problems of the implementation of the powers of the owner in the Russian Federation at the present stage of development of civil law

The right of ownership is a legally secured possibility of the owner's economic domination over a thing. In this case, we are talking about economic domination over a thing, which does not at all require that the owner be in direct contact with it. For example, leaving on a long business trip, the owner continues to be the owner of the things in his apartment. Possession of an item can be legal or illegal.

One of the problems of the implementation of ownership rights is the protection of the owner of the ownership of property. The negative attitude towards the institution of proprietary protection remained in the civil doctrine throughout the entire existence of the Soviet state. In the work of domestic jurists, a negative attitude to the model of possessor defense often bore an ideological connotation, as can be seen from the researcher A.A. Podoprigora, who believed that proprietary protection gave the economically and politically strongest classes and groups the opportunity to protect the seizure of his weakest property by the strongest A.A. Podoprigora. Property-legal ways of protecting slave property in Roman law. - M., 1996 .-- S. 42. In this he was not alone. So, traditional for the Soviet era the provisions expressed by the legal scholar M.V. Malinkovich, namely: "The protection of actual ownership does not follow from the needs of our life and does not correspond to the leading trends in the development of civil legislation ... The introduction of possessory protection is incompatible with the principle of revealing objective truth by the court ...". Malinkovich M.V. Protection of the rights of the title owner - non-owner: Scientific notes. - 1971. - Issue. 19. - P. 45.

Unfortunately, we have to admit that the current legal doctrine for the regulation of modern ownership relations does not use the basic principles of protecting the right of ownership, formulated by Roman law and approved by pre-revolutionary legislation, but the old Soviet ones, provided for by the Civil Code of the RSFSR in 1964. Despite this, lawyers of the present time think modern system, namely, petitional judicial procedure for the protection of ownership rights, the only possible way of protection due to the fact that it is the most democratic and fully meets all the necessary requirements that provide comprehensive protection V.V. Bezbakh, V.K. Puchnikhin. Fundamentals of Russian civil law - M .: TEIS, 1995. - S. 32 ..

Meanwhile, an in-depth analysis of the protection of title ownership under the legislation of the Russian Federation shows that the protection of the rights to own property does not correspond not only to the proclaimed constitutional principle of protecting the rights of every citizen, but also to the principle of justice, since, without taking into account the natural legal status of the actual owner, it provides the greatest right protection of the already protected full title holders.

Thus, there is a need to improve the protection of the right of ownership. The protection of ownership fulfills the general social essence, since it protects the interests of all people without exception and is established for the sake of public order, where it ensures the achievement of two most important interrelated goals of a public law nature: the preservation of civil peace in society and the state's observance of its prerogative to resolve property disputes, and suppress any arbitrariness.

A way that allows you to combine the natural, private and public principles is to implement civil circulation along with the petitioning system for protecting the rights of the possessory process, which really guarantees the protection of the rights of ownership of each person, as a higher quality comprehensive protection. In our opinion, only the possessory system of protection of rights will ensure the universal protection of the property interests of citizens in accordance with the general principles of the Constitution of the Russian Federation, enshrining just universal principles. Moreover, if you look from a practical point of view, in conditions of congestion of courts of all levels, only such protection will promptly restore the violated subjective right of ownership through jurisdictional measures in a simplified manner.

Literature

Main:

1. Kapelyushnikov R.I. Economic theory of property rights. M., 1990.

2. Milgrom P., Roberts J. Economics, organization and management. SPb., 1999.Vol. 1. S. 67-72, 412-455.

3. Oleinik AN Institutional economics: Teaching aid. // Economic Issues. 1999. No. 5. Pp. 139-152.

4. Shastitko AE Neo-institutional economic theory. M., 1999.S. 228-275.

5. Volchik V.V. A course of lectures on institutional economics. Rostov-on-Don: Publishing house of the Russian State University, 2000. Lecture 3.

6. Williamson O. Economic institutions of capitalism. SPb., 1996.

7. Eggertsson T. Economic behavior and institutions. M .: Delo, 2001.

Additional:

1. Menard K. Economics of organizations. - M .: INFRA-M, 1996.

2. Benam A., Benam L. Property rights in a transitional economy: comments on what economists know // Economic science of modern Russia. 1999. No. 3.

3. The economics of property rights. Ed. by Furudoth E. G., Pejovich S., Cambridge, 1974.

1. The emergence and main problems of the theory of property rights

One of the most important theoretical areas of research that exists within the framework of the new institutional economics (or neoinstitutionalism) is the theory of property rights.

Property rights theory is one of the clearest examples of so-called "economic imperialism," a phenomenon that has been extremely characteristic of the evolution of neoclassical analysis in recent decades.

The ultimate goal of "economic imperialism" is the unification of the entire scattered family of social sciences based on the neoclassical approach. In practice, this is expressed in the consistent transfer of microeconomic analytical tools to such spheres of non-market human activities as racial discrimination, education, health care, marriage, crime, family planning, etc. In the theory of property rights, the object of such a transfer is various institutions of society, including various legal regimes.

The constructive methodological principles of the theory of property rights are simple: it is not the organization itself that is now the object of analysis, but the individual agent who seeks to maximize his utility function within the organizational structure. If the impact of various structures of property rights on the agent's incentive system is known, then a comprehensive analysis of interactions between agents within the framework of alternative socio-economic institutions will be embodied in a complex system of feedbacks. The strength of the theory of property rights, which is strongly committed to methodological individualism, is revealed not only in comparison with competing approaches that adhere to the methodology of collectivism, be it functional sociology or modern neo-Marxism.

Comparison with other approaches helps to reveal the methodological specifics of the theory of property rights, to outline the boundaries of its subject matter.

1. Due to the fact that the standard neoclassical model of exchange and production is enriched by considering the interaction of property rights with the incentive system and economic behavior, the relationship of the theory of property rights to neoclassical orthodoxy turns out to be ambiguous. On the one hand, the generally accepted technique of microeconomic analysis is fully preserved. On the other hand, the specifics of a specific institutional environment, from which traditional marginalism was abstracted, are taken into account as much as possible. Hence the assertion that, in contrast, the theory of property rights explains real events in real societies. Her approach is characterized as realistic; according to R. Coase, it is designed to study a person as he is, acting in the constraints imposed on him by real institutions. In this sense, it can be regarded as a more consistent, extended version of the neoclassical theory of prices.

There are two kinds of constraints in standard neoclassical models. First, "physical", generated by limited resources. Secondly, "cognitive", reflecting the achieved level of knowledge and practical skills (ie the degree of "skill" with which the transformation of resources into finished products is carried out). The theory of property rights and related concepts introduce into the analysis, moreover, in an explicit, explicit form, another class of restrictions due to the institutional structure of society. In this sense, the characterization of transactional economics as a "generalized neoclassical theory" is quite natural.

2. This approach makes it possible to explain not only the differences in economic behavior within the framework of alternative legal structures(static aspect), but also the mechanisms of development of the structures themselves (dynamic aspect), as well as formulate the principles of a rational, from the point of view of society, choice between them (normative aspect).

3. The "methodological individualism" of the theory of property rights is manifested in the fact that organizational structures such as a firm or a corporation are not given any independent behavioral significance. They are regarded as legal fictions. An individual is always recognized as an actor and never an organization ... An organization cannot have any goals of its own, it has nothing more than a sum of restrictions within which its individual members carry out purposeful actions: Organizations are not living objects; they are pure conceptual artifacts, even when given the legal status of individuals. Ultimately, we can only do anything in relation to To or for individuals, although, of course, sometimes the impact experienced by each individual in the group will be the same (at least qualitatively). Claims about groups in this sense, however, should not be confused with the purely mystical practice of attributing human characteristics to organizations or groups.

In particular, discussions about the target function of a firm or the social responsibility of corporations are, strictly speaking, pointless: a firm is not an individual. It is a legal fiction that serves to denote a complex process in which conflicting goals of individuals (and some of them may represent for other organizations) are brought into balance within the framework of contractual arrangements. In this respect, the behavior of the firm is similar to the behavior of the market, i.e. is the result of a complex balancing process... We seldom make the mistake of describing the grain market or the stock market as individuals, but we often make the mistake of thinking about organizations as if they were people with intent and motivation.

4. Thanks to this interpretation, the dichotomous division of microeconomic analysis into the theory of the firm (the principle of profit maximization) and the theory of consumer demand (the principle of utility maximization) is eliminated. The analytical framework is simplified: the principle of utility maximization gains universal significance. The objective function turns out to be independent of where a person's activity takes place: in a company or family, at a stock exchange or a polling station. This lays the general methodological foundation for the study of economic organizations, the structure and functioning of which are derived from the interaction of their members pursuing their personal interests.

5. The attitude of theorists of property rights to the ideas of Karl Marx is ambiguous. They recognize its unconditional priority in posing the question of the interaction of the economic and legal systems of society. Moreover, when analyzing the historical evolution of property relations, they often use formulations that practically coincide with those of Marx. It is not without reason that some authors even call the theory of property rights a revised and improved historical materialism. At the same time, in many respects this approach is directly opposite to that of Marx. If the Marxist theory proclaims the primacy of production, then in the theory of property rights common denominator, under which the analysis of both production and distribution relations is brought, turns out to be the sphere of circulation... In a sense, this is a return to the pre-Marxist tradition in the understanding of society as a consistent chain of mutual exchanges (in A. Smith, for example). The contractual view of society leaves no room for such supra-individual communities as classes and social groups. It breaks down into a multitude of utility-maximizing individuals interacting with each other through mutually beneficial, voluntary, and mostly bilateral contracts.

The originality of the approach of the theory of property rights is revealed already in the detailed definition of its central concept: “Property rights are understood as sanctioned behavioral relations between people that arise in connection with the existence of goods and relate to their use. These relationships determine the norms of behavior regarding the benefits that any person must observe in his interactions with other people or incur the costs due to non-compliance. The term "good" is used in this case to refer to everything that brings a person usefulness or satisfaction. Thus, and this point is important, the concept of property rights in the context of the new approach extends to all rare goods. It covers the powers of both material objects, ... and over "human rights" (the right to vote, print, etc.). The system of property rights prevailing in society is in this case the sum of economic and social relations about rare resources, joining which individual members of society oppose each other. "

The theory of property rights arose in close interaction with legal theories and approaches to the analysis of property. Therefore, it is necessary to take into account the legal context in which the formation of economic theory property rights. There is no doubt the influence exerted on her by the Anglo-Saxon legal tradition.

The fact is that this tradition is significantly different from legal systems. continental Europe... The demarcation between them in the interpretation of the concept of property dates back to the period of bourgeois revolutions. During the bourgeois revolutions and then immediately after them in the countries of continental Europe, the dominant idea became the "absolute" right of private property, which found its classic embodiment in the Napoleon Code. The right to private property was proclaimed "sacred and inviolable," "unlimited and indivisible." The cases of dispersal of powers among several persons were perceived as remnants of feudalism; the prevailing tendency was for the concentration of all property rights to an object in the hands of one owner.

In contrast, the English legal system retained many of the institutions of feudal law. For example, she continued to consider both material things and values of an obligatory nature (incorporeal property) as objects of property, allowed the possibility of splitting the ownership of an object into partial powers of several persons.

Thus, we can distinguish two opposite legal traditions, of which one represents the right of ownership as a kind of indivisible monolith, and the other as a set of partial powers. Of these, the second is currently winning: it gradually penetrates the legal systems of continental European countries, it is she who is taken as the basis for the codification of law at the international level. Its inherent flexibility and plasticity, of course, more in line with the complex economic, social and political realities of a highly developed capitalist society.

Quite in the spirit of the Anglo-Saxon tradition, modern authors understand property as "a complex bundle of relationships that differ significantly in their nature and consequences." However, when any concept is defined as "sum", "aggregate", "aggregate", there is always a danger of dissolving its content in the list of components. With all the variety of forms, there must be a semantic core around which they are organized.

Such a core of meaning is the exceptional nature of property relations. In its most general form, property relations could be defined as a system of exclusions from access to material and non-material resources actually operating in society. In this case, access means the entire set of possible decisions about a resource, not necessarily related only to physical impact on it.

The concept of "exclusivity" acts as a semantic center that organizes an endless string of various specific proprietary powers into a certain system. The complete definition of property rights, which by now has become a textbook, was proposed by the English lawyer A. Honore. It includes:

1. Ownership, i.e. exclusive physical control over the thing.

2. The right to use, that is, the personal use of a thing.

3. The right to control, that is, to decide how and by whom a thing can be used.

4. The right to income, i.e. for the benefits arising from the previous personal use of the thing or from the permission for others to use it (in other words, the right of appropriation).

5. The right to the capital value of a thing, which implies the right to alienate, consume, squander, change or destroy the thing.

6. The right to security, ie. immunity from expropriation.

7. The right to transfer a thing by inheritance or by will.

8. Right to Perpetuity.

9. Prohibition of harmful use, i. E. the obligation to refrain from using the thing in a way harmful to others.

10. The right to liability in the form of a penalty, ie. the possibility of withdrawing a thing in payment of a debt.

11. The right to residual character, ie. the expectation of the “natural return of the delegated powers upon the expiration of the transfer period or in the event of its being invalidated for any other reason.

Ownership is a continuous series, not a fixed point ... According to A. Alchian and G. Demsets, the extent to which this or that right to a thing belongs to the owner can be judged by the extent to which his decision predetermines its actual use. If there is a probability equal to one that the decision of the owner, expressing the realization by him of any authority, and in fact, without the slightest deviations, will be carried out in the process of using the resource, then we can say that the owner has absolute authority to this resource.

In the economic theory of property rights, much attention is paid to both the process of differentiation and the process of limiting rights. But they are evaluated differently: the first is definitely positive, the second - as a source of numerous negative phenomena.

The wider the set of rights associated with a given resource, the higher its usefulness. Thus, an own thing and a rented thing have different utility for the consumer, even if physically they are completely identical.Economic agents cannot transfer more powers in exchange than they have. Therefore, the expansion or contraction of their property rights will also lead to a change in the conditions and scale of exchange (an increase or decrease in the number of transactions in the economy).

As a starting point for analysis, Western theorists usually turn to the regime of private property. The right to private property is understood by them not just as an arithmetic sum of powers, but as a complex structure. Its individual components mutually condition each other. The degree of their interconnection is manifested in the extent to which the restriction of any authority (up to its complete elimination) affects the implementation by the owner of the remaining powers.

The high degree of exclusivity inherent in private property has two behavioral consequences:

1) the exclusivity of the right (usus fructus) assumes that all positive and negative results activities carried out by him. Therefore, he is interested in taking them into account as fully as possible when making decisions;

2) the exclusivity of the right of alienation means that in the process of exchange the thing will be transferred to the economic agent who will offer the highest price for it, and thus an efficient allocation of resources in the economy will be achieved.

Western economists' defense of the private property system rests precisely on these efficiency arguments. They consider the precise definition of the content of property rights to be the most important condition for the effective functioning of the economy.

To exclude others from free access to the resource means specify ownership of it.

Contributes to the creation of a sustainable economic environment by reducing uncertainty and forming stable expectations among individuals about what they can get as a result of their actions and what they can count on in relations with other economic agents. Specify ownership means to accurately determine not only the subject of property, but also its object, as well as the method of endowing it.

Incompleteness of the specification is interpreted as erosion( attenuation ) property rights. The meaning of this phenomenon can be expressed by the phrase: "no one will sow if the harvest goes to another."

Erosion of property rights can occur either because they are inaccurately established and poorly protected, or because they are subject to various kinds of restrictions, mainly from the state.

Since any restrictions rebuild the expectations of the economic agent, reduce the value of the resource for him, change the conditions of exchange, so the actions of the state are a priori suspicious of the theoreticians of property rights.

It is necessary to distinguish between processes of differentiation (splitting) and erosion of property rights. The voluntary and bilateral nature of the splitting of powers guarantees, in their eyes, that it will be carried out in accordance with the criterion of effectiveness. The main benefit from the dispersal of powers is seen in the fact that economic agents get the opportunity to specialize in the implementation of a particular partial power, which increases the efficiency of their use (for example, in the right of management or in the right to dispose of the capital cost of a resource).

In contrast, one-sided and compulsory character restrictions on property rights by the state do not provide any guarantees of its compliance with the performance criteria. Indeed, such restrictions are often imposed in the selfish interests of various lobbying groups.

In reality, it is very difficult to separate the processes of splitting from the processes of erosion of property rights, therefore, an economic analysis of the problem of the erosion of property rights does not mean a call for an exact definition of all entitlements to all resources at any cost.

Property rights specification , from the point of view of economic theory, should go to the limit where the further gain from overcoming them blur will no longer recoup the associated costs.

The problem of specifying property rights and the influence of transaction costs on this process is considered in the Coase Theorem.

The problem of specification / erosion of property rights has taken up so much space in the works of Western economists (according to S. Pejovich and E. Furudot, it is the core of the modern theory of the firm), because it is through it that complex feedbacks between property and the economic organization of production. As emphasized in the theory of property rights, the content and distribution of these rights affect both the allocation of resources, and the volume and conditions of exchange, and the distribution and level of income, and pricing processes. The so-called "Coase's theorem" is devoted to the formal proof of this proposition.

3. Coase's theorem

Coase's theorem has many interpretations in modern scientific literature, with half of which R. Coase himself would hardly agree.

First, let us briefly dwell on the range of problems and concepts that figure in Coase's theorem.

External effects (externalities) - additional costs or benefits that are not reflected in prices.

Positive external Effects arise when the activity of some economic entities leads to the emergence of additional benefits for other entities, and this is not reflected in the prices of the goods produced.

Negative external effects arise when the activity of some economic agents causes additional costs for others.

Traditionally, in neoclassical theory, the problem of externalities was associated with “market failures”, which justified government intervention, and was solved with the help of the “Pigou tax”.

"Pigou tax" must be equal to MEC then MSB = MSC.

Coase proposed an original hypothesis that negative externalities can be internalized by exchanging ownership of objects that generate externalities, provided that these rights are clearly defined and the costs of exchange are negligible. And as a result of such an exchange, the market mechanism will lead the parties to an effective agreement, which is characterized by equality of private and social costs.

Difficulties in the implementation of the provisions of this theorem are: 1) in a clear definition of property rights; 2) high transaction costs.

The most common is the formulation of the Coase theorem given by George Stigler: “in conditions of perfect competition (at zero transaction costs, since in this case monopolies will be forced to act as competitive firms - V.V.) private and social costs will be equal. "

Coase's wording is somewhat different: the delineation of rights (property - V.V.) is an essential prerequisite for market transactions ... the end result (which maximizes the value of production) does not depend on the legal decision (only V.V.) assuming zero transaction costs.

Coase emphasized that Stigler did not take into account when formulating the theorem that with equal private and social costs, the value of production would be maximized. This is obvious if we accept the following interpretation of social costs given by Coase.

Coase uses an original interpretation of social costs. "Social costs" represent the highest value that factors of production can bring when they are used alternatively. " But any entrepreneur will start production in the case when his private costs are less than the value of the product produced with the help of attracted factors. Consequently, the equality of social and private costs implies the maximization of the value of production.

Sometimes it is erroneous to conclude on the basis of this theorem that the "Cossian world" is a world with zero transaction costs. In reality, this is not the case.

Coase, on the contrary, by his theorem shows the importance of transaction costs for the economic analysis of "real events".

"In a world with zero transaction costs, the value of production will be maximized under any liability rules." In other words, at zero transaction costs legal regulations don't matter to maximize.

“With non-zero transaction costs, the law plays a key role in determining how resources are used ... Making all or part of the changes (leading to maximization of production - V.V.) in contracts turns out to be a matter of overhead. The incentives to take some steps that would maximize production are disappearing. The law determines which incentives will be lacking, since it determines how contracts need to be changed in order to carry out those actions that maximize the value of production. "

It turns out a paradoxical situation: in cases of "market failure" we de facto recognize the presence of positive transaction costs, otherwise the market would automatically lead to a state of optimality, ensuring the maximization of the value of production.

4. Systems of property rights

As already noted, in standard neoclassical models, transaction costs are not present, that is, they are tacitly assumed to be zero. Theorists of property rights see their main merit in rejecting this premise as unrealistic and introducing into scientific circulation the idea of positive transaction costs. According to Coase's theorem, it is because of positive transaction costs that property rights matter. Once established, property rights begin to determine the relative attractiveness of possible behaviors, making some activities more costly than others. Since property rights can no longer be redistributed easily, without any costs (as with zero transaction costs), the exchange of property rights will proceed within the boundaries in which the benefits from their transfer outweigh the associated costs. Alternative ownership systems imply different levels of transaction costs for the same type of economic activity. This leads to unequal consolidation of powers into clusters, to the choice of different contract forms. In addition, alternative legal regimes require different costs for their maintenance and protection. The cheaper it is to protect property rights, the more efficiently it will be.

In conditions private property systems the owner is an individual whose word in resolving issues on the use of the resource is recognized by society as final. Thus, individual individuals are in privileged positions in terms of access to certain resources: access is open only to the owner or to persons to whom he has transferred or delegated his powers.

At system state (collective) property problem is solved by the introduction of rules according to which access to rare resources is regulated by references to the collective interests of society as a whole. This presupposes, firstly, the establishment of certain rules that determine what exactly is the collective interest (welfare), and secondly, the development of procedures that translate this general principle into specific ways of making decisions on the use of each individual resource (i.e. whether it is decided by a vote, delegation of rights to professional experts, sole order of the supreme ruler, etc.). No one in these conditions is in a privileged position in the sense that, as individuals, everyone is excluded from access to resources, since no one's reference to self-interest is considered sufficient for their use. Co-owners of state property do not have sole exclusive, marketable rights to use the resource.

At system of common (communal) property also no one is in a privileged position, but here, on the contrary, access is open to everyone without exception. When the amount of resources is limited, the “first-in, first-out” principle becomes the regulator.

According to Western authors, these three systems of property are not found anywhere in their pure form, in all societies they are "mixed" in different proportions. At the same time, the same form of ownership applies to some types of resources in all societies. So, almost everywhere items of clothing are in individual property, city parks- overall, defense- in the state, etc. In addition, under the system of private property, thanks to the freedom to spin off and recombine partial powers, forms that "imitate" state or communal property (joint-stock ownership, for example) can emerge.

According to the methodology of the transactional approach, a system of common property develops where the costs of specifying and protecting individual property rights are prohibitively high. The benefits of establishing such rights are either insufficient to outweigh the costs involved, or none at all if the resource is abundant.

At the same time, the costs associated with the operation of the common property system are large and increase with the number of users. Shared property inevitably gives rise to significant externalities, since the persons who own communal rights practically do not bear any costs associated with the consequences of their actions. Hence the well-known phenomenon- merciless exploitation and rapid depletion of common property resources.

A. Alchian and G. Demsets explain this provision by a conventional example. If a tribe lives by hunting and all its members have the right to freely hunt in the forest, which is considered a common property, then at a certain moment the hunting can reach such intensity that the game stock will begin to deplete, and animal populations will be unable to reproduce themselves. This will entail higher costs and lower hunting productivity.

As A. Alchian and G. Demsets point out, the system of common property with its principle of “first to borrow, first to use” is internally contradictory and unstable. The ex post conditions do not coincide with the ex ante conditions: “Communal rights presuppose that the existing regulations on the use of resources are such that neither the state nor individual citizens can exclude others from using the resources, unless there is an earlier and continuing use of the resource by another person. " Everyone has an individual right to use the resource after its capture, but only common law to use it prior to capture.

In the example given, each member of the tribe has a general right to animals that have not been killed, but an individual right to those killed. In order to assert this individual right, everyone seeks to appropriate (i.e., kill) as many animals as possible. Shared resource is overused... No one is interested in taking into account the consequences of the depletion of the resource base, because if, in order to prevent the complete extermination of animals, someone decides to reduce the intensity of hunting, then this will benefit not himself, but other members of the tribe, who will continue to continue to implement their general rights to animals living in the forest, only in more favorable conditions of reduced competition.

To eliminate the external effects of resource overuse, individuals must be encouraged to change the existing structure of property rights. As A. Alchian and G. Demsets note, being internally unstable, communal property evolves towards either private or state property. In the first case, the common resource is split into individual parts (the forest is divided into sections, animals, if possible, are branded, etc.), and the incentive to overuse disappears. In the second case, the change concerns not the ex ante law, but the ex post law: for example, all killed animals are considered to be the common property of the tribe, and not the prey of individual hunters, and are divided among all members of the tribe "in fairness."

So the problem of overuse of a resource is cured by its underutilization due to a drop in motivation: each member of the tribe becomes interested in the fact that not he, but others are engaged in hunting.

An extensive empirical literature is devoted to the comparative analysis of systems of common and private property. L. de Alessi emphasizes that since the co-owners of common property are deprived of exclusive rights to receive fruits from investing their time and funds in a common resource, they have practically no incentives to preserve it. Communal pastures, hunting grounds, forests, rivers are exploited more intensively and are depleted faster than private ones.

As follows from numerous empirical studies, common property, other things being equal, implies a decrease in investment, a predominance of more labor-intensive technologies, lower labor productivity, high costs of opportunistic behavior, a more limited time horizon in decision-making, a predisposition to harvest crops before their deadlines. maturation, preference for earlier varieties of these crops. Common property is characterized by numerous non-price regulations that serve as a surrogate for those self-restrictions that would be imposed by owners in the conditions of individual ownership (restrictions on the size of the plow, the size of the cells in fishing nets, the establishment of hunting seasons, a ban on shooting animals until they reach a certain age, etc.). etc.). As a result of this kind of regulation, common property is technically interconnected and intertwined with the state, because usually it is the state that introduces these restrictions and monitors their observance.

Western economists distinguish several important differences between state and private property in terms of the structure of the respective bundles of powers. And the point is not in the number of co-owners: the railway station, which is "owned" by 1000 taxpayers of the city, and the corporation, which is jointly owned by 1000 shareholders, are different systems of ownership with different behavioral consequences.

1. The main factor is the inability of the co-owner of state property to sell or transfer his share of participation in it. Moreover, no one can avoid owning it: “Owning state property is not voluntary; it is obligatory as long as one remains a member of society. " You can evade co-ownership of a railway station only by moving to another place, while the holder of a share can sell it without leaving the city.

2. Equally important is the absence of a close correlation between the behavior of individual co-owners of state property and the results of its use: "Under state ownership, the costs of any decision or choice fall less on the voter than on the owner under private ownership." Members of society, therefore, are less interested in monitoring the results of the use of state property.

3. In this regard, they have less incentive to control the behavior of hired managers (bureaucrats), to whom the rights of use are delegated (more specifically- there is less incentive for those members of society who have comparative advantages in this type of activity to specialize in performing control functions). As a result of less effective, than in private forms, control over the behavior of managers, those have more opportunities to abuse their position in their personal interests.

4. Additional problems are associated with the fact that the collective interest is more difficult to define and measure than the private one: the bureaucrat has more incentive to produce what he thinks society needs, and less incentive to produce what society demands. The bureaucrat's opinion of what society should have is usually called the public interest.

5. The problem of economic isolation and contracts

It became possible to turn to the analysis of the problem of economic isolation only after the question was raised: why do we need a company if there is a market? R. Coase's initial answer boiled down to the fact that the firm is a hierarchical structure, which, unlike market transactions, is governed not by bilateral contracts, but by direct directives, since this provides savings in transaction costs. But if the concept of transaction costs was retained and developed in subsequent studies, then the idea of the non-contractual (authoritarian) origin of the firm was actually rejected.

For this (for what?) It was necessary to expand the content of the concept of a contract (transaction) far beyond the scope of a single purchase and sale agreement. Thus, it became possible to interpret the problem of the firm as the problem of choosing the optimal form of the contract. The variety of contractual arrangements began to be derived from the variety of transaction costs, and, as O. Williamson emphasizes, for explaining specific forms of economic organizations, it is not the absolute level of transaction costs that matters, but their qualitative differentiation according to various contractual forms.

The concept of contractual behavior is given a very special meaning in the theory of property rights, because the fundamental right of the owner to transfer (alienate) property is realized in the contract. The means through which property rights affect economic behavior are contracts... Any exchange of benefits involves the transfer of some certain rights property, that is, it assumes a contractual relationship. It is the contract that clearly fixes what exactly is subject to exchange: “The function of the contract,- notes S. Pejovich,- consists in the specification of the bundle of rights to be exchanged. Legal contracts are expensive to negotiate and often expensive to defend. ”

Contracts reflect the structure of incentives and disincentives, rooted in the structure of property rights and mechanisms for their enforcement. Thus, the set of alternatives that open up to the players and the forms of organization they create when they conclude specific contracts stem from the structure of property rights.

Business practice has developed three main types of contracts, each of which has its own primary field of application.

1. Classic contract. The classic contract is impersonal, and its distinguishing feature is the presence of clearly specified clauses ("if, ... then"). Therefore, all possible future events are reduced in it to the present moment. In a classic contract, the identity of the counterparty does not matter - anyone can be its participant. The classic contract tends towards standardization. The written terms of the transaction have an advantage over the oral ones, the main emphasis is on formal documents. With the completion of the transaction, it ceases to exist. The contract is of a bilateral nature: the sanctions for violation of the sanctions of the contract are clearly stipulated and all disputes over it are resolved in court.

2. Neoclassical contract. This is a long-term contract in the face of uncertainty. Not all future events can be negotiated as conditions when signing it. Optimal adaptation to some events cannot be foreseen until they occur. Therefore, the parties to such a contract agree to involve an arbitrator, whose decision they undertake to fulfill in the event of the occurrence of events not specified in the contract, therefore the contract becomes tripartite. Disputes on it are decided not by the court, but by the arbitration bodies.

3. Relationship (or binding) contract. Such contracts are formed in the conditions of long-term, complex, mutually beneficial relations between the parties. Mutual interest in continuing the relationship plays a decisive role here. Discreteness of relations inherent in the two previous forms of contracts here completely disappears - relations become continuous. Informal conditions prevail over formal clauses, sometimes the contract is not drawn up in the form of a document at all. The personality of the participants is crucial here. Therefore, disputes are resolved not by resorting to formal law or the authority of an arbitrator, but in the course of informal negotiations, bilateral bargaining. The norm to which the parties refer is therefore not the original contract, but the relationship as a whole.

Each contract form, according to O. Williamson, corresponds to a specific mechanism for managing contractual relations.

1) An impersonal market management mechanism. It is leading in relation to one-off and recurring transactions for standard (non-specific) goods.

2) Arbitration. This tripartite management structure with the involvement of an additional person extends to irregular transactions for goods of medium to high specificity.

3) Bilateral governance structure. This type is characteristic of relational contracts in which the interaction between the parties continues to be mediated by prices. But their role is declining. Adaptation to new conditions is achieved not so much by revising prices, but by changing the physical volumes of the goods that are the subject of the transaction. This is because, with price adjustment, the risk of opportunistic behavior is much higher. Scope of this control mechanism- regular deals for goods of medium specificity.

4) Unitary management, i.e. hierarchy. Such a system is being formed for the continuously ongoing exchanges of highly specific goods and activities. Vertical integration as a subspecies of a relational contract means that adaptation to new conditions can be carried out unilaterally, without prior agreement with the opposite side. The relationship between the parties to the agreement is governed by direct commands and orders, not market signals.

At the same time, one of the parties does not fully transfer all the rights of use to the resource it has, but delegates them to the other party on certain conditions. When the ultimate rights remain with the original owner, the contract turns into a complexly structured document: in exchange for income, one of the parties gives up a limited set of rights with the obligation to obey the directives of the other party and thus refuses to independently build their behavior, constantly focusing on market prices for the services it can provide.

This broad interpretation of bilateral voluntary contract allows property rights theorists to define firm as a network of contracts... A. Alchyan and G. Demsets were the first to give such a definition of a firm. The firm is understood as a spontaneous institution that solves the problem of minimizing transaction costs... To the extent that an organization solves this problem more successfully than a decentralized market mechanism, it supplants it. At the same time, in full agreement with the principles of methodological individualism, if economic organizations do matter, then they have behavioral independence, because it is not organizations that act, but individuals within organizations. In this sense, the firm Alchian A. A. Some exonomics of property rights // Il Politico, 1985, v. 30, No. 4.P. 827.

Alchian A. A., Demsetz H. Production, information costs, and economic organization // American Economic Review, 1972, v. 62, No. 6.

GNU (a recursive acronym for GNU's Not UNIX - "GNU is not Unix!") Is a project to create a free UNIX-like operating system, pioneered in 1983 by Richard Stallman.

I. Declaration-application for the certification of the quality system II. Initial data for a preliminary assessment of the state of production

The main characteristics of the Romano-Germanic and general legal systems directly affect the principles of management, proclaimed as basic in each of them. And although in theory both systems proclaim that everything is allowed that is not prohibited In practice, only the common law system adheres to this principle. Romano-Germanic legislators, on the other hand, tend to prohibit what is not allowed.

By allowing that which is not prohibited, the common law tradition allows free competition for both the goods and services produced in the country and the production process itself. This leads to the fact that consumers are provided with a huge selection of technological innovations, and not obsolete, obsolete things. Countries adhering to a different legal principle, on the contrary, impose restrictions on the innovative capabilities of manufacturers, and, consequently, on the needs of citizens.

As a result of such actions in the domestic markets, the following situation arises. Countries with a common law system, "making a selection" of the most effective new technologies, give a powerful impetus to the development of their economies. The Romanesque countries perceive this as an attitude towards action, allowing local producers to use only those methods that have already been able to prove their viability, being applied in common law countries.

This alignment of forces directly affects the pace economic development countries and establishes patterns of behavior for countries that have adopted a particular legal principle, and with it the corresponding legal system.

On the other hand, the economies of countries with a Romano-Germanic legal system, which usually develop at an average pace, receive a significant impetus for their further development, being "fueled" by new opportunities of local producers. However, in practice, the opposite process most often occurs - stagnation of the economy due to the fact that the legislation of the Romanesque countries does not always allow the use of certain technologies, making the goods and services produced in these countries uncompetitive in the world market.

Economic growth in countries with a Romano-Germanic legal system is often referred to as "bursts of economic mobilization" to emphasize their difference from the systematic economic development characteristic of most common law countries.

Thus, the types of economic development of the countries of the Anglo-Saxon and Romano-Germanic law differ due to the fact that the legislation of these countries directly affects the amount of time lag required for the economy to adapt to innovations in the production of goods and services.

The interpretation of "property rights" is different in different legal systems.

When considering property rights in Romano-Germanic system the following prerequisites were used:

1.consideration of property as a thing;

2.formal indivisibility of property rights

Property rights are understood here as a single whole, unlimited and indivisible, as a kind of "indivisible monolith". This assumes that only one person can own a resource. This person is endowed with three main powers - the right of ownership (abusus), the right to use (usus fructus) and the right to dispose (usus).

Moreover, "possession" and "use" are economic categories, while "disposal" is a legal category.

In the countries of Romano-Germanic law, the basic powers are defined in different ways. So, in France they boil down to two: The owner uses and disposes of things in the most absolute way. In Russian law, similarly, it is established that the owner has the rights to own, use and dispose of his property.

For understanding Anglo-Saxon tradition the benefit has many dimensions that can be classified by:

5. time;

6. location;

In addition, to the physical dimensions of a thing, its legal characteristics are added, reflecting the relationship between people. The variety of characteristics and useful properties of a thing determines the versatility of legal relations to it of other people, who take the form of powers. Thus, common law proceeds from the concept of property as a complex bundle of powers that differ significantly in their nature and consequences, and the powers for the same resource may belong to different people.

The specification of property rights implies the assignment of a clearly defined owner to each right, and not the definition of a single and absolute owner of the resource. In other words, a property right is fully specified when each power has its own exclusive owner and other objects have limited access to it.

The most complete definition of property rights ("bundle of powers"), recognized at the present time as classic within the Anglo-Saxon system, was proposed in 1961 by the English lawyer A. Honore. It includes eleven elements:

2. ownership, consisting in "physical control over property and the intention to exercise exclusive control, including through representatives of the owner, agents";

3. the right to use, that is, personal use of the thing;

4. authority or control- a decision on how and by whom the thing can be used;

5. the right of appropriation, or the right to income, i.e. for the benefits arising from the previous personal use of the thing or from the permission to other persons to use it;

6. residual value of a thing, implying the right to alienate, consume, "squander", change or destroy a thing;

7. the right to security;

8. the right to transfer a thing by inheritance or by will;

9. indefinite term - unlimited possession of powers in time, unless otherwise specified in the contract;

10. the right to prohibit harmful use - the right to prohibit the use of a thing if it is associated with the production of negative external effects;

11. liability in the form of collection, that is, the possibility of taking things away to pay off the debt;

12. residual character, consisting in the expectation of a "natural" return of the powers transferred to someone upon the expiration of the transfer period or in the event of its expiration for any other reason.

These eleven elements provide a huge number of combinations. However, not all of their combinations deserve the title of property rights, that is, not all holders of these powers can be called owners. They are usually recognized as those who own a combination that includes one or more basic powers (first five).

Differences in the treatment of ownership should not be exaggerated. In fact, the three main powers of Romano-Germanic law are presented in the classification of A. Honore only in a more detailed and detailed way.

The wider the set of powers assigned to the resource, the more precisely they are defined and the more reliably protected, the higher its usefulness. Thus, an own thing and a rented thing have different utility for the consumer, even if they are physically completely identical.

The bundles of powers related to various resources determine the consequences that the owner will have to bear for the decisions he makes. Thus, they influence the choice and use of resources.

Question 19. Private property and economic efficiency

The famous American philosopher R. Nozick summed up the advantages of the private property system as follows:

1) it increases the well-being of society by placing resources in the hands of those who can dispose of them better than others;

2) it encourages experimentation and innovation, because when a resource belongs to one person, he does not need to convince others or any government bodies in the value of your new idea;

3) it contributes to the effective distribution of risk, since the probable costs associated with a particular activity fall on those who are directly involved in it, and therefore they are interested in specializing and becoming experts in assessing risks of this particular type;

4) it protects the interests of future generations, prompting some agents to switch resources from current consumption to achieve long-term goals that often lie beyond the horizon of their own existence;

5) it protects the most despised categories of the population due to the fact that competition arises on the labor market among many private employers

Thus, the term “ own»Not some tangible or intangible objects - machines, land plots, scientific discoveries, literary works, etc., are designated, but certain sets of rights, not the resource itself is the property; a bundle or share of rights to use a resource is what constitutes property

The concept of property rights is directly related to the central problem of economics, the problem of scarcity, since their establishment makes sense only in relation to limited (rare) resources

Property (economic content)

it is the relationship between people about the appropriation of economic goods.

Ownership (legal content)

these are property relations enshrined in the rule of law.

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Coursework property law in various legal systems. Lectures Property rights in various legal systems

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