of December 23, 2015 No. 12
About practice of consideration by courts of civil cases about recognition of property ownerless
Having discussed results of studying and generalization of court practice, for the purpose of uniform application of the legislation by courts by hearing of cases about recognition of property ownerless the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that the correct and timely hearing of cases about recognition of property ownerless is one of guarantees of ensuring protection of the rights and legitimate interests of owners of property and it is designed to promote involvement of ownerless property in civil circulation that is important for increase in rationality and efficiency of use of material resources, establishing order on the earth.
Only those things which have no owner can be recognized as ownerless or the owner of which is unknown, or things to which the owner refused the property right (Item 1 of Article 226 of the Civil code of the Republic of Belarus). Features of recognition ownerless separate types of property are established by legal acts.
2. Treat the regulatory legal acts regulating hearing of cases about recognition of property ownerless, in particular, the Civil code of the Republic of Belarus (further - group of companies), the Code of civil procedure of the Republic of Belarus (further - GPK), the Presidential decree of the Republic of Belarus of August 9, 2011 No. 348 "About measures for the organization of collection, storage of unexploited vehicles and their subsequent utilization" (The national register of legal acts of the Republic of Belarus, 2011, No. 91, 1/12749), the Presidential decree of the Republic of Belarus of February 23, 2012 No. 100 "About measures for enhancement of accounting and reducing number of the empty and shabby houses in the rural zone" (The national register of legal acts of the Republic of Belarus, 2012, No. 25, 1/13345).
3. Courts should mean that put about recognition of property ownerless are subject to consideration according to the procedure of special proceeding (§6 and §6-1 Chapters 30 GPK). Cases on the statement concern to them: about recognition of movable thing ownerless; about recognition of the right of municipal property to ownerless immovable thing; about recognition of materials from which unauthorized construction, ownerless and recognition of the right of municipal property is built to them; about recognition of the unexploited vehicle ownerless and its transfer to property of the corresponding administrative and territorial unit.
Also according to the procedure of special proceeding (in relation to articles 379 and 380 GPK) taking into account subject of legal regulation of the Presidential decree of the Republic of Belarus of February 23, 2012 No. 100 is subject to consideration the statement for recognition of the empty house, and in the established cases - and the personal estate which is in it ownerless and its transfer to property of the corresponding administrative and territorial unit (further - the statement for recognition of the empty house ownerless).
Unlike the statement for recognition of the unexploited vehicle ownerless the requirement about compensation to law-enforcement body or the organization which possess egresses or the supervised parking of costs for movement and the subsequent storage of this vehicle is subject to consideration according to the procedure of claim production as it is connected with the dispute resolution about the right.
4. The question of the address to the income of the state of the property which is subject of administrative offense of the things withdrawn from circulation, the property acquired owing to making of administrative offense, objects which are directly connected with administrative offense in cases when the made administrative offense person is not identified is allowed according to the procedure, provided by Chapter 11 of the Procedural and executive code of the Republic of Belarus about administrative offenses.
At the same time in case of pronouncement of the resolution on refusal in the address of such property to the income of the state (part 4 of article 11.10 of the Procedural and executive code of the Republic of Belarus about administrative offenses) the possibility of determination of its destiny according to the procedure of civil legal proceedings by recognition ownerless is not excluded.
5. It is necessary to consider that to ownerless persons which are directly specified in the regulatory legal acts regulating hearing of cases of this category (for example, articles 379 and 380-1 GPK), or their representatives who are specially authorized on that by the power of attorney have address rights with the statement for recognition of property. Owing to Article of 81 GPK the prosecutor has the right to file petition for recognition of property ownerless.
In case of filing of application by persons who do not have the appropriate rights, the court refuses initiation of proceedings. If this circumstance is established during preliminary judicial session or legal proceedings, proceeedings are subject to the termination (Article part three 362 GPK).
6. Resolving question of initiation of proceedings of recognition of the empty house ownerless, courts should consider that the Presidential decree of the Republic of Belarus of February 23, 2012 No. 100 the right to appeal to the court allocates executive committees of basic territorial level, and according to their order - executive committees of primary territorial level. According to article 2 of the Law of the Republic of Belarus of January 4, 2010 "About local authority and self-government in the Republic of Belarus" (The national register of legal acts of the Republic of Belarus, 2010, No. 17, 2/1660) belong to executive committees of basic territorial level city (the cities of regional subordination), district executive committees, to executive committees of primary territorial level - city (the cities of district subordination), settlement, rural executive committees.
Powers of executive committee of primary territorial level on appeal to the court with the statement for recognition of the empty house ownerless are confirmed by the decision (the statement from the decision) executive committee of basic territorial level.
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