of June 23, 2015 No. 25
About application of some provisions of the Section I of part one of the Civil code of the Russian Federation by courts
For the purpose of ensuring unity of practice of application by courts of the Section I of part one of the Civil code of the Russian Federation the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. Provisions of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), the laws and other acts containing regulations of the civil law (article 3 Civil Code of the Russian Federation) are subject to interpretation in system interrelation with the main beginnings of the civil legislation enshrined in article 1 Civil Code of the Russian Federation.
According to Item 3 of article 1 Civil Code of the Russian Federation in case of establishment, implementation and protection of the civil laws and in case of execution of civil obligations participants of civil legal relationship shall act honesty. Owing to item 4 of article 1 Civil Code of the Russian Federation nobody has the right to take benefit from the illegal or unfair behavior.
Estimating actions of the parties as fair or unfair, it is necessary to proceed from the behavior expected from any participant of the civil circulation considering the rights and legitimate interests of other party, helping it including in receipt of necessary information. By the general rule of Item 5 of article 10 Civil Code of the Russian Federation conscientiousness of participants of civil legal relationship and rationality of their actions are assumed, other is not proved yet.
The behavior of one of the parties can be acknowledged unfair not only in the presence of the reasonable statement of other party, but also at the initiative of court if the obvious variation of actions of the participant of civil circulation from fair behavior is seen. In this case the court when considering the case submits for discussion of circumstance, obviously testimonial of such unfair behavior even if the parties did not refer to them (article 56 of the Civil Procedure Code of the Russian Federation (further - the CCP of the Russian Federation), Article 65 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation).
If the unfair behavior of one of the parties, court depending on the facts of the case and taking into account nature is established and effects of such behavior refuses protection of the right belonging to it fully or partially, and also applies other measures providing protection of interests of the fair party or the third parties from unfair behavior of other party (Item 2 of article 10 Civil Code of the Russian Federation), for example, recognizes condition which was prevented or helped from bad faith by this party according to come or not come (Item 3 of article 157 Civil Code of the Russian Federation); specifies that the statement of such party for invalidity of the transaction has no legal value (Item 5 of article 166 Civil Code of the Russian Federation).
2. It is necessary to understand as custom which owing to article 5 Civil Code of the Russian Federation can be applied by court in case of permission of civil dispute not stipulated by the legislation, but developed, that is rather certain in the content, widely applied rule of conduct in case of establishment and implementation of the civil laws and execution of civil obligations not only in entrepreneurial, but also other activities, for example, determination by citizens of procedure for use of common property, execution of these or those obligations.
The custom as fixed in any document (published in seal, stated in the judgment on the specific case containing similar circumstances, certified by Chamber of Commerce and Industry of the Russian Federation), and existing irrespective of such fixing is subject to application. The party which refers to it (article 56 CCP of the Russian Federation, article of 65 AIC of the Russian Federation) shall prove existence of custom.
According to Item 2 of article 5 Civil Code of the Russian Federation the customs contradicting the main beginnings of the civil legislation and also to provisions of the laws, other legal acts or the agreement, obligatory for participants of the corresponding relation, are not applied.
3. Article 8.1 Civil Code of the Russian Federation contains the fundamental rules of state registration of the rights to property which are subject to application regardless of the fact that is subject to registration (the rights to real estate, share in the authorized capital of limited liability company, etc.). This regulation extends to registration in different registers: The Unified State Register of Rights on real estate and transactions with it, the Unified State Register of Legal Entities, etc.
For persons which are not the parties of the transaction and not participating in case, it is considered that the rights to property which are subject to state registration arise, change and stop from the moment of entering of the corresponding record into the state register, but not at the time of making or the actual execution of the transaction or the introduction in legal force of the judgment based on which arise, such rights change or stop (Item 2 of Article 8. 1, Item 2 of article 551 Civil Code of the Russian Federation). At the same time from the moment of emergence of the corresponding basis for state registration of the right side of such transaction or person, participating in case as a result of which consideration the called judgment having no right in the relations among themselves from bad faith is made to refer to absence in the state register of record about this right.
Other moment of origin, change or termination of the rights to the specified property can be established only by the law. For example, regardless of implementation of the corresponding state registration the right passes in cases of universal succession (Article 58, 1110 Civil Codes of the Russian Federation), in case of complete introduction by the member of the relevant cooperative of its share for the apartment, the dacha, garage, other room provided by cooperative to this person (item 4 of article 218 Civil Code of the Russian Federation).
4. The mark entered in the state register about objection of person which appropriate right was registered earlier or mark about lawsuit availability concerning the registered right does not interfere with implementation of registration of the rights to property (Item 7 of article 8.1 Civil Code of the Russian Federation). Availability of the specified marks also does not interfere with acceptance of interim measures by court concerning this property.
Legal consequence of introduction of the specified marks is that person who addressed for registration of the right to property while concerning this property the state register contained mark, is considered knowing about the corresponding claim in case of dispute with person, on demand or to the statement of which this mark (paragraph two of Item 6 of article 8.1 Civil Code of the Russian Federation) was brought.
If person according to whose statement the mark about objection is brought did not dispute further the registered right in court at the scheduled time or was refused the corresponding claim, the obligation can be assigned to it to pay the damages (article 15 Civil Code of the Russian Federation) caused by availability of such mark.
5. The body performing state registration of the rights to property, having no right to give legal treatment to the court resolution which took legal effect which substantive provisions contain conclusion about property accessory to certain person on the corporeal right, about availability of encumbrance or restriction of the right (paragraph one of Item 5 of article 8.1 Civil Code of the Russian Federation, article 13 CCP of the Russian Federation, article of 16 AIC of the Russian Federation).
By consideration of dispute on the right to property registered in the state register in case in quality of the defendant person behind whom the right to this property is registered shall be recruited.
In substantive provisions of the judgment which is the basis for entering of record into the state register it is specified absence or the termination of the right of the defendant, data on which were entered in the state register.
6. If powers on state registration of the rights to property are assigned to the public institution, losses caused by illegal refusal in state registration of the rights to property, evasion from state registration, entering into the state register of illegal or doubtful data on the right or violation of the procedure for state registration of the rights to property provided by the law are subject to compensation for the account of treasury of the Russian Federation (Item 9 of Article 8. 1, article 1069 Civil Code of the Russian Federation).
7. If transaction breaks prohibition, stipulated in Item 1 article 10 Civil Code of the Russian Federation, depending on the facts of the case such transaction can be acknowledged as court invalid (Items 1 or 2 of article 168 Civil Code of the Russian Federation).
8. To the transaction made in circumvention of the law with the illegal purpose are subject to application of regulation of the civil legislation bypassing which it was made. In particular, such transaction can be acknowledged invalid based on provisions of Article 10 and Items 1 or 2 of article 168 Civil Code of the Russian Federation. In the presence such transaction is recognized invalid on this basis the law of the special basis of invalidity (for example, by rules of article 170 Civil Code of the Russian Federation).
9. Article 12 Civil Code of the Russian Federation provides the list of methods of protection of the civil laws. Different ways of protection of the civil laws can be established by the law.
If in case of adoption of the action for declaration the court comes to conclusion that the method of protection of the right elected by the claimant cannot provide its recovery, this circumstance is not the basis for refusal in adoption of the action for declaration, its return or leaving without movement. According to article 148 CCP of the Russian Federation or article of 133 AIC of the Russian Federation at stage of preparation of case for legal proceedings the court submits for discussion question of legal qualification of legal relationship for determination of what rules of law are subject to application in case of the dispute resolution.
The court determines by sense of part 1 of article 196 CCP of the Russian Federation or part of 1 Article of 168 AIC of the Russian Federation what rules of law should be applied to the established circumstances. The court also specifies motives for which did not apply rules of law to which persons participating in case referred. With respect thereto the reference of the claimant in the action for declaration on the rules of law which are not subject to application in this case in itself is not the basis for refusal in satisfaction of the declared requirement.
According to the paragraph to the thirteenth article 12 Civil Code of the Russian Federation by consideration of the disputes connected with protection of the civil laws, the court does not apply the act of state body or local government body contradicting the law irrespective of recognition of this act invalid.
10. Person whose right is violated can resort to its self-defense corresponding to method and nature of violation (article 14 Civil Code of the Russian Federation). The possibility of self-defense does not exclude the right of such person to use different ways of protection, the stipulated in Article 12 Civil Codes of the Russian Federation, including judicially.
In sense of articles 1 and 14 Civil Codes of the Russian Federation self-defense of the civil laws can be expressed, including, in impact of person on the own or being in its legal ownership property. Self-defense can consist also in impact on property of the offender, in that case if it has signs of justifiable defense (article 1066 Civil Code of the Russian Federation) or is made in condition of emergency (article 1067 Civil Code of the Russian Federation).
11. Applying article 15 Civil Code of the Russian Federation, it is necessary to consider that by the general rule person whose right is violated can require full recovery of the losses caused to it. Indemnification in smaller size is possible in the cases provided by the law or the agreement in the limits set by the civil legislation.
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