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Source: Electronic catalog of the branch department in the direction of "Jurisprudence"
(Faculty of Law Libraries) M. Gorky St. Petersburg State University
Animals as objects of civil rights:
ARZ382 Zakharov D.E. (Dmitry Evgenievich).
Animals as objects of civil rights: abstract
dissertation for the degree of candidate
legal sciences. Specialty 12.00.03 - civil
right; business law; family law;
international private law / D. E. Zakharov; Sci. hands. L.
O. Krasavchikova. -Yekaterinburg, 2010. -22 pp.-Bibliography. : With.
22.3. links Material (s):
- Animals as objects of civil rights.
Zakharov, D.E.Zakharov, D.E.
INTRODUCTION
Relevance of the research topic. The norms of civil law establish the rules of conduct for the participants in legal relations concerning the corresponding material and intangible benefits. Features of civil regulation of relations regarding a particular object of civil rights are formed on the basis of its legal characteristics, determining the specifics of the implementation, acquisition, change and termination of the corresponding civil rights and obligations.
Close attention to the issues of the civil law regime of animals is explained by the specifics of the objects under consideration. On the one hand, animals are objects of civil rights, therefore, the relations that develop about animals are regulated by civil law on the basis of its inherent principle of dispositiveness, moreover, animals are living beings, which could not but be reflected in the peculiarities of the regulation of the corresponding property relations. On the other hand, the great importance of “living nature” as a natural resource predetermines the special attitude of the state towards the issues of ownership, protection and use of wild animals that are in a state of natural freedom.
The relevance of the chosen topic of dissertation research is manifested, in particular, in the following aspects.
Socio-economic aspect. The expansion of the private-law sphere of regulation of relations that are important from an economic point of view, predetermined the involvement of public relations in the orbit of civil law in relation to animals. The attention of the state to this issue can be explained by the fact that animals, falling into the sphere of human activity, are involved in civil circulation, and this requires legal regulation of the corresponding relations. In addition, the expansion of the legal regulation of relations involving animals is due to an increase in the number of transactions with them and the need to protect them from improper treatment.
As the relations resulting in the emergence and termination of real rights to animals, and relations on their content and the exercise of real rights to them, the circulation of animals cannot be indifferent to civil mediation and deserve detailed legal regulation.
Wild animals in a state of natural freedom are part of natural resources, the importance of which for the socio-economic development of the state can hardly be overestimated. In the context of the increasing role of private law means in regulating relations regarding the ownership, use and protection of natural objects, the issues of the legal essence of registration of ownership on the right of state ownership of wild animals in a state of natural freedom acquire special importance. This dictates the need for a clear conceptual approach to the development and optimization of legal instruments capable of ensuring the conservation, effective protection and rational use natural resources of the animal world, which serves as a guarantee of the stability of the socio-economic situation in the state.
Regulatory aspect, In recent years, a number of rules on animals have appeared in Russian civil legislation. Moreover, these are not only the fundamental norms of Art. 137 of the Civil Code Russian Federation(hereinafter - the Civil Code of the Russian Federation, the Civil Code), establishing that general rules on property are applied to animals and cruelty to them is not allowed, but also the rules governing the acquisition of property rights in relation to animals that are generally available things (Article 221 of the Civil Code of the Russian Federation) , acquisition of ownership of stray animals (Articles 230, 231, 232 of the Civil Code of the Russian Federation). Along with this, among the methods of terminating the right of ownership, the legislator has provided for such a special method as buying out domestic animals in case of improper treatment of them (Article 241 of the Civil Code of the Russian Federation).
Attempts have been made to legalize relations regarding wild animals in a state of natural freedom at the level of federal legislation. So, the Federal Law of April 241995 No. 52-FZ "On the Animal World" (hereinafter - the Law on the Animal World) as an object of state property rights defines the animal world of the Russian
Federation (Art. 4), and the regulation of property relations in the field of protection and use of the animal world refers to civil law (Art. 3).
In addition, the constituent entities of the Russian Federation and local self-government bodies develop and adopt regulations governing the maintenance, use and disposal of animals.
This gives grounds to speak of a new stage in the development of legislation regulating relations with regard to animals. However, it is hardly possible to recognize it as uniform, and not always clear modern legislative formulations and gaps in legislation do not allow achieving certainty in understanding issues related to animals as objects of civil rights, in connection with which, in this dissertation research, recommendations are formulated for its change and addition. ... The implementation of these proposals, it seems, will contribute to a more effective legal regulation of relations related to animals.
Law enforcement aspect. Numerous questions concerning this area appear at the practical level. An analysis of judicial practice indicates a lack of uniformity in the application of legislation when resolving disputes arising over animals as objects of civil rights, in particular when considering cases on recognizing rights to animals, terminating ownership of animals, causing harm to animals, etc. this requires an understanding of the relevant legislative provisions and the development of recommendations, the implementation of which would contribute to their uniform application.
Doctrinal aspect. In Russian civil science, a comprehensive theoretical study of such objects of civil rights as animals has not been carried out. And at present, only a few scientists and practicing lawyers deal with the problems of the civil law regime of animals, therefore, many theoretical and practical questions remain unanswered, giving rise to various discussions. Moreover, in most of the works affecting certain aspects of the legal regulation of relations in this area, different opinions are expressed regarding their understanding.
essence and character, and a number of issues have been studied very little or not at all.
The foregoing allows us to conclude that the study of issues related to such objects of civil rights as animals is relevant from the point of view of theory, positive law and law enforcement practice.
The degree of scientific elaboration of the topic. The authors of some pre-revolutionary textbooks and civil law courses conducted fragmentary research on property rights to animals and the acquisition of ownership of them. However, in general, these issues have not become the subject of independent research by Russian legal scholars.
During the Soviet period, scientists paid special attention to the right of state ownership of wild animals in a state of natural freedom. In those years, the problems of sources of increased danger were seriously developed, to which it was proposed to include some animals. M. M. Agarkov, B. S. Antimonov, A. M. Belyakova, S. N. Bratus, D. I. Genkin, O. S. Ioffe, O. A. Krasavchikov, N. S. Malein, B. B. Cherepakhin, E. A. Fleishits.
Fundamental changes in the state and economic system of recent years have led to a special interest in the problem of ownership of various natural resources, including the animal world. With the adoption of the first part of the Civil Code, methods of acquiring and terminating property rights have become the subject of analysis for many scientists, but special methods for the emergence and termination of property rights exclusively to animals usually remained outside the field of scientific research. The modern scientific basis for the study of relevant issues is the work of V. K. Andreev, M. I. Braginsky, A. P. Sergeev, E. A. Sukhanov, T. M. Malaya, V. D. Mazaev, D. V. Shornikov.
At the same time, almost all works on this topic cover a wide range of issues, which does not allow us to form a unified approach to the study of animals as objects of civil rights. A comprehensive analysis of the problems associated with such objects of civil rights as animals has not been carried out.
The purpose and objectives of the study.The purpose work was a comprehensive study of theoretical and practical issues of the civil law regime of animals as objects of civil rights.
To achieve this goal, the following were set and resolved. tasks:
to give a general legal description of animals as objects of civil rights;
determine the place of animals in the system of objects of civil rights;
to conduct a legal classification of animals, reflecting the specifics and features of their civil law turnover;
identify the features of the acquisition and termination of ownership of animals;
to comprehensively study the features of the maintenance and implementation of property rights in relation to animals;
analyze the specifics of contractual obligations regarding animals;
to argue for the need to recognize animals as sources of increased danger, and their maintenance - as activities that create an increased danger to others;
to develop proposals for the development and improvement of civil legislation in the field of regulation of relations related to animals.
Research object became regulated by civil law social relations arising about animals.
Subject of study- a set of issues related to the concept of animals as objects of civil rights, the place occupied by animals in the system of objects of civil rights, property rights to animals and some features of obligations regarding animals.
Methodological basis of dissertation research made up both general scientific and specific scientific methods. The work uses logical and dialectical methods of cognition, methods of induction, deduction, synthesis and analysis. Along with this, the historical, systemic methods and the method of comparative jurisprudence were applied to the norms of the legislation of countries both near and far abroad.
Normative and empirical research base were the norms of Russian and foreign law and judicial practice.
The theoretical basis of the research were the works of M.M. Agarkov, S.S.Alekseev, B.S.Antimonov, A.M.Belyakova,
M. I. Braginsky, S. N. Bratusya, V. V. Vitryansky, D. I. Genkina O.S. Ioffe, O. A. Krasavchikova, I. B. Novitsky, N. S. Maleina, A. A . Sobchak, V. T. Smirnova, E. A. Sukhanova, Yu. K. Tolstoy, V. A. Lapach, V. V. Rovny, B. B. Cherepakhina, E. A. Fleishits, R. O. Khalfina , B. L. Haskelberg, L. V. Shchennikova and others.
When writing the dissertation, the works of such pre-revolutionary civilists as K. N. Annenkov, N. L. Duvernois, D. I. Meyer, S. A. Muromtsev, V. I. Sinaisky, G. F. Shershenevich, I. A. Pokrovsky, K.V. Pobedonostsev and others, as well as works in the field of environmental law by S. A. Bogolyubov, N. N. Vedenin, O. S. Kolbasov, V. V. Petrov and others.
Scientific novelty of the research. The dissertation is the first comprehensive study of such objects of civil rights as animals.
The following provisions are brought to the defenseand conclusions.
1. The definition of an animal as an object of civil rights is formulated.
An animal is a movable, indivisible, non-consumable thing, which in civil circulation has the quality of marketability, characterized by the ability to experience negative pain sensations from external stimuli, as well as the ability, as a result of "material transformation", to pass from one qualitative state to another (biological death leads to the destruction of the animate and the appearance of an inanimate thing) and, unlike all other things in civil law, has needs, the satisfaction of which ensures its very existence.
2. The conclusion about the impossibility of applying to wild animals in a state of natural freedom, the norms of civil law concerning property, is substantiated.
It should be recognized that the identification of a wild animal in a state of natural freedom with an object of civil rights is unmotivated. In the course of the study, it was found that such wild animals do not correspond to the characteristics of an object of civil rights, cannot be recognized as things and should not be included in the sphere of civil law regulation. At the same time, the possibility of using civil legal means of regulation is not disputed.
ration of social relations in the provision of these animals for use and in their direct use.
It is argued that the condition for the involvement of a wild animal in a state of natural freedom in civilian circulation is the termination of its direct ecological connection with the natural environment, which means its extraction from this environment or isolation from it.
It is proved that the civil legal regulation covers only relations arising from domestic, farm animals, as well as wild animals in captivity or in semi-free conditions.
3. Wild animals in a state of natural freedom (objects of the animal world) cannot be an object of property rights. The right of ownership of the Russian Federation for wild animals in their natural habitat, enshrined by the legislator, only de jure denotes that they belong to the state.
The Russian Federation (its subjects) is not the owner of wild animals that are on its territory in a state of natural freedom. Such wild animals should be recognized as belonging to no one in the sense that they do not have an owner.
4. The exclusive property of animals is the ability to experience complex emotions (feelings of affection). It determines the special nature of the behavior of the animal, which indicates attachment to its former owner. Taking into account the fact that from the standpoint of law, the behavior of an animal cannot be recognized as legally significant, since an animal is not a subject of law, it is necessary to recognize as a special exception the situation when, in the presence of special conditions provided for by law, the behavior of the animal itself (an animated thing) is a necessary condition for changes in the subject composition of the legal relationship of ownership to this thing.
5. For the owner of the animal, special limits have been established for the implementation of subjective civil law, the prevention of inhuman, cruel treatment with him. The commission by the owner of an animal of a special type of unlawful act of abuse of his right - entails the application of a special sanction to him.
tion stipulated by Art. 241 of the Civil Code of the Russian Federation, which does not apply to measures of civil liability.
Termination of ownership of an animal upon its seizure is a special mechanism for determining the legal fate of an animal with the help of state-compulsory influence. The seizure of an animal is a statutory sanction applied by a court in case of violation by its owner of special legal requirements, which are based on moral prohibitions and moral guidelines. Its purpose is S both to suppress the abuse of rights in the present, and to prevent it in the future.
6. The increased harmfulness of certain wild animals is due to the fact that they have specific physical qualities (large size, predatory instincts), certain natural properties (sharp fangs, claws, ferocity), adapted to protection (the ability to shock, use poison). At the same time, the behavior of a wild animal cannot be completely controlled by a person, since its existence as a complex biological object is completely subject to the natural laws of biology, and its behavior is conditioned by a variety of natural reflexes and instincts. It must be recognized that potentially dangerous wild animals removed from their natural habitat are sources of increased danger, and their maintenance is an activity that creates an increased danger to others.
It is substantiated that the maintenance of excessively dangerous dogs of fighting, guard, service breeds, potentially dangerous large ferocious farm animals meets the criteria, the presence of which determines the increased danger of a particular activity. The specific (harmful) qualities of dogs of certain breeds are due to their natural characteristics - a high degree of aggressiveness, physical strength, endurance, low pain threshold, etc. behavior is corrected in such a way as to most effectively (from the point of view of the owner) use their natural (genetic) characteristics.
7. Problems in law enforcement practice arising from the lack of an appropriate regulatory framework necessitate the development and adoption of a legislative act (federal law) regulating the acquisition, alienation, keeping, breeding and use of animals involved in civil circulation. In this act, it is also necessary to consolidate the list of excessively dangerous wild animals, dog breeds requiring special responsibility of the owners, potentially dangerous large ferocious farm animals, the maintenance of which is an activity that creates an increased danger to others.
On the basis of theoretical conclusions and analysis of the practice of applying the legislation, a number of proposals for amendments and additions to the Civil Code of the Russian Federation are substantiated (Articles 230, 231, 241, 1079).
Theoretical and practical significance of the research. The conclusions and recommendations formulated in the work can be used in law enforcement practice and in the process of improving legislation, in the further study of issues related to its topic. The scientific and practical significance of the research results also lies in the expansion of theoretical ideas about such objects of civil rights as animals. The theoretical conclusions made by the author can be used when writing monographs, textbooks and other works.
Approbation of research results. The thesis was prepared at the Department of Civil Law of the Ural State Law Academy, where it was discussed and reviewed. The main provisions are reflected in articles published in various legal publications. The materials of the dissertation are used in practical training in civil law at the Ural State Law Academy.
The structure of the dissertation research due to the tasks set in it. The work consists of an introduction, three chapters, including six paragraphs, conclusion, bibliography.
In the introduction substantiates the relevance of the selected topic, gives a characteristic of the state of its scientific development, determines the object, subject, goals and objectives of the study, reveals its methodological and theoretical foundations, provides the main provisions reflecting the scientific novelty of the research carried out and submitted for defense, notes the theoretical and practical significance of the work.
Chapter first "General characteristics of animals as objects of civil rights" includes two paragraphs. It examines the concept of an animal as an object of civil rights, defines the legal regime of animals and gives a legal classification of animals, reflecting the specifics and features of their civil law turnover.
In paragraph one "The concept, meaning and place of animals in the system of objects of civil rights" a classification of animals is carried out (in a state of natural freedom; pets, farm animals and wild animals in a state of captivity), which is important for determining the sectoral affiliation of relations developing about animals, the civil law characteristics of animals are presented, their place among other objects of civil circulation is determined ...
Any legal phenomenon requires a definition. However, the current legislation does not provide a definition of an animal as an object of civil rights. Moreover, in Art. 137 of the Civil Code of the Russian Federation, the general concept of "animal" is used without any clarifications. The federal law "On the animal world" establishes that the norms of civil law are applied to wild animals in a state of natural freedom, that relations on the possession, use and disposal of these animals are regulated by civil law (Article 4).
Based on the analysis of scientific concepts and legislation, a number of legal features (state of natural freedom, territorial feature, commodity-monetary value) were identified, which made it possible to carry out a legal classification of animals, which makes it possible to determine the nature of legal regulation (public law, private law) of the relevant relations.
Comparison of the signs of objects of animal life and animals, which are not related to such objects, with the signs of an object of civil rights indicates that only domestic, agricultural and wild animals in a state of captivity can be recognized as an object of civil rights.
In the scientific literature, various approaches to understanding the place of animals in the system of objects of civil rights have been formulated. The paper concludes that wild animals in a state of natural freedom are physical bodies, but cannot be recognized as things from the standpoint of civil law and, accordingly, objects of civil rights, but at the same time the relations associated with them can be the subject of regulation, for example, administrative or environmental law. Thus, exclusively domestic animals, farm animals and wild animals that are not in a state of natural freedom are things as objects of civil rights.
The analysis of scientific literature and civil law made it possible to formulate the concept of an animal as an object of civil rights. It is noted that the main feature of animals is their ability to meet the spiritual and material needs of people and the possession of the quality of marketability. In addition, their most important features are the possibility of sensory perception. environment and the presence of needs (only an animal as a “living thing” among other things can have such), which determine the features of the acquisition and termination of real rights to animals, the specifics of the exercise of real rights to them, the limits of their implementation, which, undoubtedly, distinguishes animals among all other things in civil law.
In paragraph two "Classification of animals as objects of civil rights" animals, taking into account their individual characteristics and intended use, as well as differences in the legal regime, are classified for a number of reasons.
Based on the results of the legal classification of animals as things, it was concluded that they belong to animate, movable, indivisible things. Most animals are completely negotiable things, but some of them, due to their special properties and purpose, are limited in
company and things withdrawn from circulation, which determines the peculiarities of their legal regime.
A collection of animals can form a complex thing, and such a thing must have a general purpose (economic, cultural, aesthetic, scientific and educational, teaching and educational) and can be either formed due to biological reasons (herd), or arise artificially at the will of the owner. (zoo collection).
Animals can be defined as things that have a natural origin. However, in modern conditions of the development of science, some of them should be attributed to things of a derivative, artificial origin, since their appearance is associated with the use of the method of genetic engineering, and such a result of human labor, requiring significant intellectual and material costs, is protected by legislation on the protection of intellectual property.
The work suggests dividing the fruits obtained from animals (as opposed to all other things) into animate and inanimate.
Chapter two "Real rights to animals" includes two paragraphs. It reveals issues related to the acquisition and termination of property rights to animals, examines the specifics of the maintenance and implementation of property rights to animals.
In paragraph one "Acquisition and termination of real rights to animals" the issues of acquiring the right of ownership to public things and neglected animals are analyzed; in addition, the issue of terminating the ownership of animals by means of their redemption and seizure deserves special attention.
The acquisition of property rights on the basis of taking possession occurs through a unilateral act of the acquirer to occupy the animal. In accordance with modern civil law, the method of acquiring rights when turning animals into ownership is occupation, both of which do not belong to anyone or that are owned by anyone.
Taking possession is a legal fact, namely an action aimed at taking possession of an animal. The action of a person as a method for the emergence of ownership of an animal must
characterized by the ability of a person to regulate his behavior (will) and the external expression of the person's intentions outside (expression of will). The physical nature of the actions performed during the takeover makes it possible to express the volitional intention of the person to acquire the thing in ownership, that is, the external expression of the will during the takeover determines the availability of its perception outside. Thus, the expression of the will is manifested, objectifying this will for all other persons. Taking possession as an action aimed at establishing civil rights and obligations (within the framework of an absolute legal property relationship) should be recognized as a unilateral transaction.
When taking possession of an animal that is in a state of natural freedom, the law in some cases (hunting, fishing) stipulates the need to obtain a license. The license itself does not give rise to any legal consequences in relation to a civil legal relationship, it is only a necessary prerequisite for its occurrence. The meaning of the circumstance affecting the acquisition of ownership of the animal, the license acquires after the actual actions aimed at taking possession of the animal. A license as an administrative act does not confer ownership of the animal; on its basis, it is only possible to carry out its withdrawal.
Consideration of the issue of acquiring ownership of stray animals made it possible to identify a number of important points. For a person who has discovered a neglected animal, an incentive for non-communication (the consequence of which is the finding of an animal in a neglected state is indefinite for a long time) about this, an unwillingness to keep it (especially in the absence of such an opportunity) or the need to bear additional costs in the event of the death of an animal, within the limits of its cost, may appear in the relevant authorities. In this regard, it is proposed to indicate in the Civil Code of the Russian Federation that if the person who discovered the animal refuses to keep it and there are no people willing to take care of it, the local government is obliged to accept such an animal for its maintenance.
The person who detained the animal (the person to whom it was handed over) is entrusted with the responsibility for its maintenance, and in accordance with the requirement of the Civil Code, the fulfillment of these duties and the use of the animal should not be
yarn with cruel treatment. The consequences of abuse by the owner of the animal of his right to in this case are not provided, since the ransom of animals under Art. 241 of the Civil Code of the Russian Federation is the basis for the termination of ownership of them, and the person who detained the animal is not yet the owner. To resolve this issue, the Code must state that if a person who has detained a neglected animal commits cruel treatment against him, contrary to the principles of humanity, then such an animal must be removed from him and transferred to another person who has for this purpose. the necessary conditions.
The seizure of a pet in the event of improper handling is not a measure of civil liability, since no encumbrances are imposed on the owner when the animal is redeemed. In addition, the very mechanism for implementing the consequences of the termination of property rights is not typical for civil law. In this case, we can talk about the "equivalence" of the sanction and the consequences occurring in the property sphere of the offender. The onset of the consequences of the improper exercise of the right is also made dependent on the actions of third parties, which means that it directly depends on subjective conditions, which indicates a certain “conventionality” of the legal consequences of the ransom - the seizure of the animal. For imposing measures of civil liability on a person, a set of conditions is necessary, however, in case of cruel, inhuman treatment of animals, a number of them may be absent altogether, and the civil liability itself performs a preventive, educational and preventive function. However, the modern mechanism for implementing the ransom of an animal makes it impossible to perform this function.
In paragraph two "The maintenance and implementation of real rights to animals" issues of legal regulation of real relations are considered, proposals and recommendations are made for improving the current legislation.
The paragraph is divided into two semantic parts: property rights to wild animals in a state of natural freedom, and property rights to animals in captivity or semi-free conditions.
The legislation of the pre-revolutionary period did not establish any property rights for wild animals in a state of natural freedom. The lack of a unified approach to resolving the issue of legal registration of property rights to such animals has become fertile ground for the formation of different, sometimes mutually exclusive, views on this problem. With the advent of Soviet power, wild animals in a state of natural freedom were declared a national treasure and became state property.
Currently, property rights to natural resources (which include wild animals in a state of natural freedom) are regulated by the Constitution of the Russian Federation (Article 9), the Civil Code of the Russian Federation (Articles 129, 214) and special natural resource legislation. The fauna (a set of wild animals in a state of natural freedom) is referred to by the legislator as natural resources Of the Russian Federation and stipulates that it is subject to the legal regime of state property (Art. 4 of the Fauna Law).
A natural resource becomes property (acquiring the economic form of a commodity) only as a result of human influence on it, which removes the relationship between nature and its individual component. Without appropriate labor costs for its extraction from the appropriate environment, a natural resource cannot become an object of relations regulated by civil law. Ownership is possible only for "natural wealth" in the form of natural resources, which a person consumes and uses in order to satisfy his needs by creating various material goods. Wild animals in a state of natural freedom as natural resources can be classified as objects of property rights only if human labor has been applied to their development. Human activity, aimed at such development, presupposes the termination of the interaction of natural objects with the natural environment, the individualization of "natural resources" and the acquisition of consumer value by them.
Consideration of the possibility of recognizing wild animals in a state of natural freedom as state property required a study of the possibility of possession, use and disposal of such property objects.
nosti. The paper concludes that it is limited, and often the impossibility of exercising the powers of the owner in relation to wild animals in a state of natural freedom, due to their physical properties.
Based on the analysis of the current regulatory framework, judicial practice and scientific theories, the dissertation candidate comes to the conclusion that the ownership of the Russian Federation to the animal world means only the “abstract belonging” of the latter to the state. Wild animals in a state of natural freedom cannot be considered within the framework of the civil law institution of ownership. The state does not have real rights to wild animals that are in a state of natural freedom.
The second part of this section deals with the ownership, use and disposal of these animals. Attention is drawn to the numerous problems arising in the exercise of property rights to animals by citizens, and ways of their solution are proposed.
In chapter three "The place of animals in a relationship of obligation" the issues of legal regulation of obligations arising in connection with the performance of various civil transactions with animals are highlighted, the features of tort relations in which animals are the object of encroachment are considered, and the possibility of classifying animals as sources of increased danger is analyzed.
In the first paragraph "Features of civil law regulation of animal trafficking" the contract for the sale of animals, the contract for the lease of animals, the insurance contract for animals, as well as obligations based on the will are characterized.
In particular, the paper analyzes the possibility of recognizing the contract of sale of an animal as invalid if it was acquired for the purpose of inhuman, cruel treatment of it. It is proved that such a transaction cannot be recognized as invalid due to the absence of a legal basis for this. In this regard, it is concluded that it is necessary to make appropriate additions to the rules for trade in animals.
An animal transferred to a lessee under a lease agreement must be individualized and its purpose clearly defined,
in order to avoid reducing the functionality of the animal when used for other than "intended". It seems that the requirement for the proper condition of the leased property in relation to animals should be interpreted as the physical condition of the animal, allowing it to be used for the purpose specified in the contract, taking into account the species and natural characteristics. In particular, it is indicated that in relation to a lease agreement for an animal, its shortcomings are determined based on the objective possibilities to use the animal in accordance with the terms of the agreement. In some cases, the disadvantage will be the unsatisfactory physical condition of the animal (trauma, injury), in others - the lack of special skills in the animal (inability to search for various objects, lack of training).
In addition, this section provides a brief description of the most specific features of an animal insurance contract. The specificity of insurance risks and insured events, especially the obligations of the insured both during the period of the contract and upon the occurrence of an insured event, are noted.
With regard to the special case of bequest (keeping of animals), the work indicates that the law unjustifiably imposes on the heirs the duties of keeping, supervising and caring only for domestic animals, while completely excluding wild animals.
Second paragraph "Animals as an object of encroachment v tort obligations and compensation for harm caused by animals " is devoted to the analysis of obligations arising from harm to an animal, and obligations arising from harm to the animals themselves.
It is pointed out that such methods of compensation for damage in case of damage (death) of an animal as transferring a similar item of appropriate quality to the owner or repairing a damaged item are indicated as being limited and often impracticable.
When considering the issue of causing harm to a wild animal in a state of natural freedom, it is emphasized that the specific economic and ecological nature of the harm caused determines the application of the rates and methods for calculating the amount of damage to wildlife against the violator. Unlike civil compensation
harm the amount of compensation for harm caused to the animal world is predetermined in the form of a specific amount of money, and does not consist of the value of the damaged, destroyed property. It seems unreasonable to recognize the rates as one of the ways to compensate for civil damage.
It is proved that the position cannot be accepted according to which the destroyed objects of the animal world can be attributed to losses in the form of lost profits. In addition, the harm caused to the animal world is conditional, and therefore it seems unreasonable to identify the harm caused to the environment with civil harm, since environmental objects (wild animals in a state of natural freedom) are not objects of civil legal protection. ...
Destruction (damage) of objects of the animal world leads to the emergence of an environmental offense, and material liability for compensation for harm to the animal world allows to sufficiently unify relations in case of adverse environmental consequences and increase the efficiency of the mechanism of compensation for damage caused to the animal world (from the standpoint of its replenishment).
Recognition of an animal as a source of increased danger is possible if it matches the signs of a source of increased danger (impossibility of complete control, harmfulness). Man possesses limited opportunity influence the behavior of animals. Animal behavior, by definition, cannot be under the absolute control of humans. The behavior of domestic (farm) animals, due to their historical coexistence with humans, is to some extent controlled by the will of people. With regard to wild animals, man has a limited ability to influence their behavior. Even with a high level of subordination of the behavior of a wild animal to the will of man (circus animal), it is not completely under the control of man, which determines the high probability of causing significant harm, since even the maximum possible degree of care on the part of the owner does not provide full control over the behavior of the animal.
The harmfulness of an animal is determined by the fact that it, as a representative of living nature, has natural characteristics, and its behavior is subject to the laws of biology, which in total creates an objective increased risk of harm to others.
The lack of use (operation) of a source of increased danger (state of rest) also excludes activities that create an increased danger to others. It is noted that such interdependence of activity and source is not of fundamental importance in the case of animals, and this is explained precisely by the specificity of the animal as a living being.
It is worth taking a critical attitude to the position that keeping any dangerous animals for personal purposes cannot be considered an activity that creates an increased danger to others. It is concluded that the recognition of a particular animal as a source of increased danger cannot be determined by the purposefulness of its use. Regardless of the purpose for which a dangerous animal is used, its very maintenance is an activity that creates an increased danger to others.
In connection with the possibility of recognizing individual animals as a source of increased danger, and their maintenance as an activity that creates an increased risk of harm, a number of special measures are proposed (registration of an animal, compulsory property insurance of civil liability of the owner, etc.), which, on the one hand, are aimed to reduce the likelihood of causing harm by them, and on the other - will help protect the rights and interests of victims of these animals.
When analyzing relations related to compensation for harm caused to animals as a source of increased danger, the issue of the possibility of liability under the rules of Art. 1079 of the Civil Code of the Russian Federation in the event of harm to wild animals in a state of natural freedom. It is noted that in the event of harm to such animals, liability cannot be qualified as liability for harm caused by a source of increased danger for the following reasons. First, based on the understanding of the source as an object of civil rights, a wild animal in a state of natural freedom does not act as an object of civil rights (only
"Potential" source of increased danger). Secondly, the presence of an animal in a state of natural freedom excludes any human activity that creates an increased danger to others. Thirdly, the ownership of a wild animal in a state of natural freedom cannot be legally formalized, and accordingly there is no subject of law on whom civil liability can be imposed.
V conclusion summarizes and formulates the main conclusions of the dissertation research.
1.Zakharov D.E. On the issue of ownership of the animal world // Russian legal journal. - 2010. - No. 3. - P. 130 - 137 (0.7 p. L.).
2. Zakharov D.E. Animals as an object of civil rights // Adaptation of Russian law to the conditions of the global crisis: Materials of the regional scientific-practical conference (May 13, 2009). - Yekaterinburg: Ural Humanitarian Institute, 2009. - T. 1. -S. 40 - 43 (0.2 pp.).
3. Zakharov D.E. Animals as a source of increased danger // Russian law: education, practice, science. - 2009. - No. 9. - P. 98 - 101 (0.4 p. L.).
Information updated:14.02.2011
Related materials:| Defense of dissertations
ANIMALS AS AN OBJECT OF RIGHT
A. BYCHKOV
Law as the main regulator of social relations affects all spheres of public life. The treatment of animals is no exception. Citizens are obliged to treat them humanely and carefully (Article 58 of the Constitution of the Russian Federation).
Living property
The general rules on property apply to animals, since the law or other legal acts do not provide otherwise (Article 137 of the Civil Code of the Russian Federation). In the exercise of rights, no cruel treatment is allowed, which is contrary to the principles of humanity. Regulates relations related to the use and protection of animals, Federal Law of 24.04.1995 N 52-FZ "On the animal world".
The scope of this Law is the definition of the powers of the authorities, the duties of users, the conditions for hunting, fishing, etc. their content in accordance with the Law of the Russian Federation N 52-FZ and the Law of the Russian Federation of 14.05.1993 N 4979-1 "On Veterinary Medicine". Article 3 of the Law of the Russian Federation N 4979-1 establishes that property relations for the use of animals are regulated by the civil legislation of the Russian Federation.
The subject must be individualized
Administrative liability for violation of mandatory rules and regulations for the treatment of animals is provided for by Art. Art. 7.11, 8.29, 8.33, 8.35 - 8.37, 10.6 - 10.8, 10.11 of the Administrative Code of the Russian Federation, criminal - Art. 245 of the Criminal Code of the Russian Federation. Property and moral damage caused to the owner of the animal is subject to compensation (Chapter 59 of the Civil Code of the Russian Federation). Animals are not property (Article 137 of the Civil Code of the Russian Federation), but they are subject to the legal regime of property. Subjects of civil turnover can acquire ownership and other property rights to them.
Being an object of civil turnover (Article 128 of the Civil Code of the Russian Federation), animals can be alienated under various transactions. They can be used as security for the fulfillment of obligations (pledge), as well as their termination (compensation, novation). The fruits, products and income associated with the use of animals belong to their owner or to another person who uses animals legally (tenant, borrower, etc.) in accordance with Art. 136 of the Civil Code of the Russian Federation. For transactions in which the item must be individualized, animals must be individualized with all their characteristics indicated.
The court did not satisfy the claim
The absence of individual signs of animals in the contract is the basis for recognizing it as not concluded (Article 432 of the Civil Code of the Russian Federation).
So, in one case, in order to secure obligations under the wheat sale and purchase agreement, a pledge agreement was concluded for young animals for fattening. As the subject of the pledge agreement, the parties identified a herd of young cattle with a live weight of 100 thousand kg at a price of 22 rubles. per kg for a total amount of 2,175,000 rubles. From the inventories presented in the case materials, it followed that the pledgee's herd of cattle was not exhausted by young live weight of 100 thousand kg. There was also no evidence of the segregation of the pledged animals from the rest of the livestock population. The court did not accept the plaintiff's reference to the sufficiency of the indication of the individualizing characteristics of the herd (young animals with a total weight of 100 thousand kg), since the subject of the pledge can be precisely certain things, and not a set of things that has certain properties (Resolution of the FAS SKO dated 03.16.2006 N F08- 875/2006).
Unjust enrichment
Since the general rules on property apply to animals, unless otherwise provided by law or other legal acts, they may constitute unjust enrichment. If one person unjustifiably acquired or saved animals at the expense of another person, he has the right to demand the recovery of unjust enrichment (Chapter 60 of the Civil Code of the Russian Federation). The subject of proof in such a case includes the acquisition or saving of animals:
- without grounds established by law or transaction;
- at the expense of another person.
Thus, the plaintiff handed over the cattle to the defendant for the subsequent conclusion of a lease agreement with him. Since the defendant evaded his imprisonment and actually returned fewer animals than he received, the court charged him with unjust enrichment. After evaluating the act of acceptance and transfer of livestock, a certificate of the veterinary service, testimony of witnesses and an audit act submitted in the case, the court concluded that the defendant's unjustified acquisition of animals at the expense of the plaintiff was proved (Resolution of the Federal Antimonopoly Service of the UO of 12.01.2011 in case N A71-3605 / 2010) ...
Return in kind
It must be borne in mind that the object of unjust enrichment must be returned in kind. In the event that this is not possible, the actual value of the unjust enrichment at the time of its acquisition, as well as losses caused by the subsequent change in the value of the property, shall be reimbursed.
In one case, the defendant did not return the livestock received for maintenance to the plaintiff, which served as the basis for the plaintiff's appeal to the court for the recovery of unjust enrichment. Based on the natural properties of the transferred animals, from the moment of transfer and by the time of consideration of the dispute (more than 2 years), they acquired signs that allow them to be attributed to property of a different kind and quality, possessing different useful properties(from the point of view of the possibility of their use in economic activity). In particular, if 5-10-month-old heifers were transferred to the defendant, then at the time of the consideration of the dispute in court they became adult animals. Consequently, the defendant did not have the same property and he was obliged to reimburse the cost of unjust enrichment in money (Resolution of the Federal Antimonopoly Service of the UO of 14.07.2004 N F09-2113 / 04-GK).
Do no harm
Damage caused to the property or personality of a citizen or to the property of a legal entity is subject to compensation in full by the person who caused the damage (Article 1064 of the Civil Code of the Russian Federation). The harm caused by animals to the property or the identity of other persons is subject to compensation by the owner of these animals, since he bears the burden of their maintenance, including not only the costs of keeping animals, but also the obligation to compensate for the harm caused by them. Likewise, the owner of the animals is obliged to compensate the victim for moral damage.
In one case, two of the defendant's dogs bit the plaintiff's children. According to the act of forensic medical examination, bruises and abrasions and various wounds were formed in children as a result of bites. The defendant's guilt was confirmed by a decision to bring him to administrative responsibility. As a result of the harm caused, the children had to undergo treatment. After evaluating all the evidence presented in the case, the court concluded that the defendant was charged with the obligation to compensate for the damage caused (Definition of the Moscow Regional Court of 04/21/2011 in case N 33-6393).
Protection methods
The procedure for keeping pets is established by regulatory legal acts of the constituent entities of the Russian Federation. In Moscow, such an act is the Decree of the Government of Moscow dated 08.02.1994 N 101 "On the approval of the" Temporary rules for keeping dogs and cats in Moscow "and" Temporary regulations for the capture and keeping of stray dogs and cats in Moscow ".
In case of improper maintenance of animals, the injured person has the right to demand the elimination of such violations, but cannot demand their removal from the owner: this method of protection violates the rights of the owner himself and cannot be recognized as adequate to the violation.
So, in the current legislation of the Russian Federation, animals are considered an object of law. The civil legislation of the Russian Federation extends to them the legal regime of property. Any transactions that do not contradict the law are allowed to be made with them. In case of violation of the rights of the owner of the animal, he can restore them by any means provided for by the legislation of the Russian Federation, taking into account the nature of the dispute. When handling animals, citizens and legal entities are obliged to be guided by the principle of humanity and not to allow rough treatment with them, to comply with sanitary rules and norms, rules of public order.
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“The seizure of animals for debts is acquiring the character of an epidemic. Near Saratov, horses were taken from the owner of the equestrian club for personal debts, in Petrozavodsk the debtor lost a cow, horse and calf, in the Perm Territory 53 geese were taken from the owner of the poultry house, ”the deputy emphasizes. Also, according to Mikheev, there were cases of arrest for debts of the owners of a thoroughbred dog (in St. Petersburg), two pugs and a bulldog (in Irkutsk), a kitten (in Kemerovo), a domestic parrot (in Altai).
Tailed prisoners
The remaining amount of debt is to be paid by the farmer as he earns money. In December, Russia adopted a regulatory act introducing the institution of bankruptcy of individuals into legislation (Federal Law of December 29, 2014 No. 476-FZ "On Amendments to the Federal Law" On Insolvency (Bankruptcy) "and certain legislative acts of the Russian Federation in part of the regulation of rehabilitation procedures applied to the debtor citizen "). But it will only come into force on July 1, 2015.
For the debt of a resident of the Kaliningrad region in the amount of 19 thousand rubles., bailiffs seized his dog - a Pomeranian spitz. The regional office of the Federal Bailiff Service reports that such actions were taken due to the fact that the owner of the dog could not find the money to pay off the debts during the visit of the officers of the law to his apartment. The pet was left by the owner for safekeeping.
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Animals under arrest
Not every pet owner at least once in his life thought about what legal status his pet has and whether it has it at all. Someone first learned about this from friends and acquaintances, someone from an ensuing family dispute in the process of divorce in court, and bailiffs came to someone with an executive document, in which it is spelled out legal status animal.
Are pets the property of the debtors?
First, you need to decide: whether the dog falls under the concept of "property". I think yes, it does. Since time immemorial, animals have been considered the property of their owners and current regulations do not exclude this. But whether or not there is corpus delicti under Art. 167 of the Criminal Code of the Russian Federation - another question. It depends on whether the actions of the perpetrator caused significant damage to the victim, since this feature is qualifying in the act of the perpetrator. And it depends on the price of the dog.
Who should get the cat
- property received by each of the spouses before marriage or in marriage, but under a gratuitous transaction (inheritance, gift, privatization);
- property acquired during separation, when the marriage has actually already disintegrated;
- individual things of spouses (clothes, shoes, etc.), with the exception of luxury items;
- works of authorship;
- things that are necessary exclusively to meet the needs of minor children (toys, books, clothes);
- deposits in the name of minor children.
Pets are not responsible for the debts of the owners
“From the point of view of a lawyer, the same dog is a non-consumable, individually determined, animate and indivisible thing, an object of various transactions, including contracts: purchase and sale, donation, lease, gratuitous use, paid provision of services for the maintenance of an animal and others. To put it simply, the animal is recognized as a thing, like any other property of the owner, for example, a car or apartment, "- comments "Economy today" lawyer at the consulting company "Law and Law" Oksana Safronova.
JUST CHOOSE
Recently, reports have often appeared on the Internet that bailiffs are arresting and taking away for debts on loans of pets, cats and others. Is it legal? And what can be done. to avoid it? We have three cats and it’s scary to imagine that they can be taken away and sold to someone or poorly maintained, but now there is no way to pay the entire amount of debts at once.
Are pets the property of the debtors?
However, the articles establishing the procedure for entering the ownership of stray animals cannot apply to all property relations, the objects of which are stray animals. In particular, it is hardly advisable to apply the articles regulating the procedure for acquiring the ownership of stray animals if, for example, the owner of a stray dog was found, but renounced the ownership of the animal. In this case, it seems that the articles of the Civil Code of the Russian Federation concerning the emergence of ownership of an ownerless thing (Articles 225 and 226 of the Civil Code of the Russian Federation) can be used.
What can bailiffs take for credit debts
There is also Federal Law No. 229 of October 2, 2007 “On Enforcement Proceedings”. The law regulates the powers, rights and obligations of representatives of this executive authority, which does not prevent the debtors themselves from getting acquainted. In this case, they will be able to learn about all the nuances of the collection procedure, about the authorized and unauthorized actions of the bailiff, they will be able to defend themselves in the event of unpleasant or disputable situations.
I'm sorry for the husky
The woman was asked to provide an apartment for examining and vaccinating the animals and to reduce their number to two dogs and a pair of cats. But she never opened the door, and the specialists had to break it open. The unfortunate dogs were seized and placed in regional shelters.
Property seizure: what bailiffs can and cannot take away
In some cases, the seizure of the debtor's property bailiffs carried out illegally. FSSP employees do not take into account who owns certain items, do not pay attention to the life circumstances of a person and arrest all valuable things (even those that cannot be arrested) indiscriminately. In such situations, a citizen whose rights have been violated must go to court, setting out his claims in a statement. The representatives of the court will check and find out whether the actions of the bailiffs were illegal. Every person will succeed in achieving justice, the main thing is to be able and willing to do so.
What specific property is not subject to arrest by Russian bailiffs
- simple home furnishings. The refrigerator and stove in the kitchen will not be touched. The washing machine will be left if there are small children in the family. Only a professional programmer, designer, accountant can defend a computer. The bailiffs have the right to take all the furniture. The old one is usually left. FSSP has the right to pick up all small household appliances, dishes, except for the very minimum;
- personal items.
Illegal retention of someone else's property - article and responsibility
- The measures will be legal if the thing happened to be with the person holding it on legal grounds (in accordance with the contract or by virtue of the rule of law).
- For the recognition of actions to hold legal, it is necessary that the owner of the thing owes it to the person holding it.
Introduction
1. Animals as a special subject of civil relations
2. General legal regime of animals as objects of civil rights
3. The legal regime of animals listed in the Red Book of Ukraine as objects of civil rights
4. The fauna of Ukraine and the right of ownership of animals in a state of natural will.
Introduction
Most often, a civil legal relationship is defined as a legal relationship based on the norms of civil law, which is formed about material and intangible benefits, the participants of which, having legal autonomy and property isolation, act as legally equal carriers of rights and obligations.
The object of a civil legal relationship is that good about which a civil relationship arises and in relation to which there is a subjective right and a corresponding obligation.
The objects of civil legal relations can be divided into four groups: 1) property; 2) actions (works and services); 3) the results of intellectual (creative) activity; 4) intangible goods.
Under the term “ property”In civil law means: a thing or a set of things in the possession of the owner; association of both things and property rights that have a monetary value; property rights and obligations of the testator, which are transferred to the heirs.
In all cases, the right to property applies not only to things, but also to income owed and other rights.
Under things material objects are understood outside world... They are treated as objects of material and spiritual culture, i.e. products of human labor, as well as objects created by nature itself and used by people in their life - earth, minerals, plants, animals, etc.
The state sets the rules for the behavior of people when using this or that thing. In this regard, the term "legal regime of things" appears. It is conditional and does not denote the properties of a thing, but determines what should be the behavior of people in relation to the thing.
The legal regime of things serves as one of the main grounds for their classifications, necessary in determining the scope and content of the rights and obligations of participants in civil relations.
A special object of civil legal relations are animals.
1. Animals as a special subject of civil relations
In connection with the increase in the number of domestic animals owned by citizens, as well as possible transactions, the objects of which are animals, it became necessary to introduce into the new Civil Code an article on animals as an object of civil rights, which was not in the old Civil Code.
In accordance with part 1 of article 180 of the Civil Code of Ukraine, animals are a special object of civil rights and they are subject to the legal regime of things, except in cases established by law. The law provides for the establishment of the necessary special rules for the treatment of animals.
At the moment, there are a number of laws in the legislation dedicated to the animal and the surrounding world, which contain articles that establish their legal regime, i.e. a special procedure for the acquisition of ownership and disposal of animals as objects of civil rights.
According to the Law of Ukraine "On the Protection of Animals from Cruelty", the term "animals" has the following meaning:
animals- biological objects belonging to the fauna: agricultural, domestic, wild, including poultry and wild birds, fur, laboratory, zoo, circus.
The Law of Ukraine "On the Protection of Animals from Cruelty" was adopted in 2006. This Law is aimed at protecting animals from suffering and death as a result of cruelty to them, protecting their natural rights and strengthening the morality and humanity of society and establishes the features of ownership and other material rights to animals as a special object of civil rights.
A special procedure for the acquisition of private ownership, use and disposal is established for animals included in the Red Book of Ukraine and is regulated by the Law of Ukraine "On the Red Book of Ukraine". Animals included in the Red Book of Ukraine may be subject to civil circulation only in cases and in the manner prescribed by law.
The legal regime of wild animals in a state of natural will, as well as animals raised in captivity, in artificially recreated conditions and in other ways not prohibited by law, are established by the Law of Ukraine "On the animal world".
2. General legal regime of animals as objects of civil rights
According to article 12 it is provided that:
1. The right of ownership or other material rights of the person keeping the animal is limited by the obligation to comply with the norms and requirements of this Law;
2. Ownership and other material rights to animals in the event of cruelty to them may be terminated by a court decision by means of their paid seizure or confiscation;
3. Agreements entered into by a person under the age of 18, on the acquisition or transfer of ownership or other material rights to animals, may be invalidated by a court decision if such agreements are concluded without the consent of the parents of this person or persons replacing them;
4. Harm caused to a person or property of an individual, as well as harm caused to the property of a legal entity by animals, is fully refundable by the person containing it.
Article 13. Of the Law of Ukraine "On the Protection of Animals from Cruelty" regulates the terms of some contracts, the subject of which are animals: when buying and selling an animal, the seller of the animal is obliged to provide the buyer with reliable information about the type, breed, state of health and other qualities of the animal, as well as the conditions of its keeping.
If a wild animal is sold from among the species listed in the Red Book of Ukraine or subject to protection in accordance with the current international treaties of Ukraine, another wild animal, the seller of the animal is also obliged to provide the buyer with a document certifying the legality of the acquisition of such an animal in ownership.
It was also found that donation of animals is allowed after previous agreement with the future owner.
Article 14. Of the Law of Ukraine "On the Protection of Animals from Cruelty" establishes the types of economic activities related to the use and maintenance of domestic animals, subject to licensing.
Licensing in accordance with the law is subject to:
breeding of domestic animals (dogs, cats, exotic and decorative animals) in breeding nurseries;
dog training;
training of specialists in the above-mentioned areas.
It also aims to protect animals article 154 Of the Code of Administrative Offenses:
violation of the Rules for keeping dogs and cats entails a warning or the imposition of a fine on citizens and officials in the amount stipulated by the current legislation.
3. The legal regime of animals listed in the Red Book of Ukraine as objects of civil rights
Special rules for handling exist in relation to animals included in Red Book of Ukraines... The Law on the Red Data Book of Ukraine is adopted every 10 years.
The Red Book of Ukraine is an official state document that contains an annotated list of the rarest and endangered species of fauna and flora within the boundaries of the territory of Ukraine, its continental shelf and the marine economic zone, as well as generalized information on the distribution, state of the art of these species, the reasons for the decline in numbers, and measures for their conservation and reproduction.
Plant and animal species included in the Red Book of Ukraine are subject to special protection throughout the territory of Ukraine. Today, 541 species of plants and 382 species of animals are included in the Red Book of Ukraine.
In accordance with Article 7 of the Law of Ukraine "On the Red Book of Ukraine", permission for the right of private property of individuals or legal entities to animals that are objects of the Red Book of Ukraine is issued by specially authorized central executive bodies on issues of ecology and natural resources in accordance with the law. The legality of such an acquisition of ownership must be confirmed by the relevant documents
The basic requirements for the use of animal objects of the Red Book of Ukraine are determined in accordance with Article 18 of the Law of Ukraine "On the Red Book of Ukraine", Law of Ukraine "On the protection of the natural environment" (1264-12), "On the animal world" (2894-14), "On the Natural Reserve Fund of Ukraine" (2456-12) and other regulatory legal acts.
In accordance with article 19 of the Law, "Conditions for the special use of objects in the Red Book of Ukraine",
special use (extraction, collection) of objects of the Red Book of Ukraine is carried out in exceptional cases only for scientific and breeding purposes, including for reproduction and breeding in artificially created conditions, with the permission of specially authorized central executive bodies for ecology and natural resources on the basis of decisions of the National Commission on the Red Data Book of Ukraine, adopted in accordance with its powers.
4. The fauna of Ukraine and the right of ownership of animals in a state of natural will.
Ownership of objects of the animal world is determined by article 5 of the Law of Ukraine "On the animal world" (Vі
The general rules on property apply to animals insofar as the law or other legal acts do not provide otherwise.
In the exercise of rights, cruelty to animals, contrary to the principles of humanity, is not allowed.
Commentary on Art. 137 of the Civil Code of the Russian Federation
1. In accordance with the commented article, animals are objects of civil rights and cannot be subjects. The norm on the testamentary assignment to one or more heirs of the obligation to maintain the pets belonging to the testator, as well as to exercise the necessary supervision and care for them (Article 1139 of the Civil Code of the Russian Federation) does not change this state of affairs.
2. The legal regime of animals is determined by federal laws of March 14, 1995 N 33-FZ "On specially protected natural areas", of April 24, 1995 N 52-FZ "On the animal world", of August 3, 1995 N 123 -FZ "On livestock breeding", dated January 10, 2002 N 7-FZ "On environmental protection" and other regulatory legal acts. According to Art. 1 of the Federal Law “On the Animal World”, animals are understood as the totality of living organisms of all types of wild animals permanently or temporarily inhabiting the territory of Russia and in a state of natural freedom, as well as those belonging to the natural resources of the continental shelf and the exclusive economic zone of Russia. The object of the animal world is mammals, birds, reptiles, amphibians, fish, molluscs, insects, etc., which are subject to the requirements of the law on their use and protection. Pets are not subject to the above Act. At the same time, the norms of the commented article apply to all types of animals.
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Collection of legislation of the Russian Federation. 1995. N 12. Art. 1024.
Collection of legislation of the Russian Federation. 1995. N 32. Art. 3199.
Collection of legislation of the Russian Federation. 2002. N 2. Art. 133.
3. The first sentence of the commented article provides for the application to animals general rules on property, for example, the rules that determine the specifics of the transfer of ownership of movable things, on certain types of contractual relations, in particular, sale and purchase, lease, etc. sales, the FAS of the East Siberian District confirmed that the provisions of Art. Art. 136, 218, 223, 454 and other articles of the Civil Code of the Russian Federation. According to paragraph 1 of Art. 223 of the Civil Code of the Russian Federation, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or contract, and in accordance with Art. 136 of the Civil Code of the Russian Federation, the proceeds received as a result of the use of property (in this case, the offspring) belong to the person using this property on a legal basis, unless otherwise provided by law, other legal acts or an agreement on the use of this property.
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Resolution of the Federal Antimonopoly Service of the East Siberian District of August 1, 2005 N A33-2074 / 05-F02-3473 / 05-C2 // SPS "ConsultantPlus".
4. Animals belong to the category of animate things, which predetermines some of the features of their legal regime. For example, keeping animals requires expenses for their life support, which is advisable to take into account in contracts. So, on the basis of the contract (the legal nature of which is not precisely defined in the Decree of the Federal Arbitration Court, but, based on the interpretation, it is a lease agreement), the defendant returned at the end of the contract a part of the animals, in connection with which the losses caused to the plaintiff were recovered from him ... Since the agreement does not contain conditions for the transfer of property into the ownership of the defendant, but presupposes the temporary keeping of livestock, the arbitration court came to the correct conclusion that upon the expiration of the term of this agreement, the defendant had an obligation to return to the plaintiff all the livestock received under the agreement.
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Resolution of the FAS of the Far Eastern District of August 15, 2006, of August 22, 2006 N F03-A59 / 06-1 / 2525 in case N A59-6355 / 05-C16.
In another court order, animals were recognized as objects that are part of the circus program, along with circus props, technical documentation for the operation of props, costumes in good condition and animals. In this case, the case was sent for a new consideration, including due to the uncertainty of the subject of the contract.
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Resolution of the Federal Antimonopoly Service of the Moscow District of June 16, 2008 N KG-A40 / 10634-07-2 in case N A40-2531 / 07-105-26.
The signs of animals as animate things are important for the acquisition and exercise of property rights, as well as other rights to an animal. So, Art. 230 of the Civil Code of the Russian Federation provides for the obligation of a person who has detained neglected or wild cattle or other neglected domestic animals, to return them to the owner, and if the owner of the animals or his place of stay is unknown, no later than three days from the moment of arrest, report the discovered animals to the police or to the local government who take measures to find the owner.
A special procedure for the treatment of animals is provided until the owner is established. During the search for the owner of the animals, they can be left by the person who detained them at his own maintenance and use, or handed over for maintenance and use to another person who has the necessary conditions for this. At the request of the person who has detained the stray animals, the police or local self-government body is responsible for the search for a person who has the necessary conditions for their maintenance and the transfer of the animals to him.
A special obligation to keep animals is assigned to the person who detained the neglected animals and the person to whom they were transferred for maintenance and use. Moreover, in the presence of guilt, they are responsible for the death and damage of animals within the limits of their value.
When a person acquires the right of ownership of neglected animals, who had the neglected animals for maintenance and use, in the event of the appearance of the previous owner, the latter has the right in the presence of circumstances indicating that these animals remain attached to him or about cruel or other improper treatment of them. the new owner, to demand their return on terms determined by agreement with the new owner, and in case of failure to reach an agreement - by the court.
5. The second sentence of this article prohibits cruelty to animals, contrary to the principles of humanity, in the exercise of rights. The consequences of cruelty to animals are determined by both the Civil Code of the Russian Federation and the Criminal Code of the Russian Federation. So, according to Art. 10 of the Civil Code of the Russian Federation, actions of citizens and legal entities are not allowed, carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms. In case of non-observance of these requirements, the court, the arbitration court or the arbitration court may refuse to protect the person's right. In accordance with Art. 241 of the Civil Code of the Russian Federation in cases where the owner of pets treats them in clear contradiction with the rules established on the basis of the law and the norms of humane treatment of animals adopted in society, these animals can be removed from the owner by means of their ransom by a person who has submitted a corresponding claim to the court. The redemption price is determined by agreement of the parties, and in the event of a dispute - by the court.
Establishes criminal liability for cruel treatment of animals, resulting in their death or injury, if this act is committed from hooligan motives, or from selfish motives, or using sadistic methods, or in the presence of minors.
6. At the same time, in practice, there are problems of a different nature associated with harm to life, health of people from animals, including those with an owner - first of all individual, and ownerless animals living in settlements, including those that the owner refused.
In this regard, many disputes arise regarding the possibility of solving these problems using the mechanisms proposed by civil law, namely Art. 1079 of the Civil Code of the Russian Federation, according to which legal entities and citizens whose activities are associated with increased danger to others (the use of vehicles, mechanisms, high voltage electrical energy, atomic energy, explosives, strong poisons, etc .; implementation of construction and other related activities, etc.) are obliged to compensate for the harm caused by a source of increased danger, unless they prove that the harm arose as a result of force majeure or the intent of the victim.
The obligation to compensate for harm is imposed on a legal entity or citizen who owns a source of increased danger on the basis of ownership, the right of economic management or operational management, or on another legal basis (on the basis of the right of lease, by power of attorney for the right to manage vehicle, by virtue of the order of the relevant authority on the transfer of a source of increased danger to it, etc.).
The question of the concept of a source of increased danger has long been controversial among civilians. The positions that have taken shape on this score can be reduced to three main ones. According to the first position, a source of increased danger is understood as an activity that, being associated with the use of certain things, does not lend itself to continuous and comprehensive human control, as a result of which it causes a high degree of probability of causing harm.
According to the second position, the source of increased danger is understood as the properties of things or forces of nature, which, at the achieved level of development of technology, cannot be fully controlled by humans and, not fully subjecting to control, create a high degree of probability of causing harm to human life or health or material goods.
According to the third position, a source of increased danger is understood as objects, things, equipment that are in the process of operation and thus create an increased danger to others.
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ConsultantPlus: note.
The textbook "Civil law: In 4 volumes. Law of Obligations" (volume 4) (edited by EA Sukhanov) is included in the information bank according to the publication - Walters Kluver, 2008 (3rd edition, revised and enlarged).
See: Civil Law: Textbook: In 2 volumes / Ed. E.A. Sukhanov. 2nd ed., Rev. and add. M .: Walters Kluver, 2005.Vol. 2. Polutom 2.
Animals that have an owner as an object of civil rights cannot be fully controlled by humans, and therefore it is advisable to apply the rules on the source of increased danger in relation to animals. This conclusion follows from the provisions of Art. 1079 of the Civil Code of the Russian Federation and does not require any changes to this article... At the same time, in some countries, the legislator directly specifies certain types of animals as sources of increased danger. So, the Civil Code of Ukraine among the sources of increased danger provided for some breeds of dogs (part 1 of Art. 1187 of the Civil Code of Ukraine).
7. For some species of animals, the legislation establishes the features of civil law turnover, for example, in relation to animals listed in the Red Book, which should be classified as objects restricted in civil turnover. The Federal Service for Supervision of Natural Resource Use has been granted the right to issue permits (regulatory licenses) for the circulation of wild animals belonging to the species included in the Red Book of the Russian Federation, in accordance with paragraph 3 of the Decree of the Government of the Russian Federation of February 19, 1996 N 156 "On the procedure for issuing permits (regulatory licenses) for the circulation of wild animals belonging to the species included in the Red Data Book of the Russian Federation ”.
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Collection of legislation of the Russian Federation. 1996. N 9. Art. 807.
A special regime is set Federal law"On pedigree livestock breeding" in relation to pedigree animals, which include farm animals with documented origin, used for the reproduction of a certain breed and registered in the prescribed manner. Pedigree products (material), which include pedigree animals, may be owned by the Russian Federation (federal property), owned by subjects of the Federation (owned by subjects of the Federation), owned by municipalities (municipal property), owned by citizens (peasant (farmer) ) farms) and legal entities engaged in the breeding and use of pedigree animals. The assignment of state-owned pedigree products (material) to federal property and property of the constituent entities of the Russian Federation is carried out in the manner prescribed by the legislation of the Russian Federation. Pedigree products (material) can only belong to participants in the turnover - citizens and legal entities that breed and use pedigree animals. The sale of breeding products (material) is possible only for citizens and legal entities engaged in agricultural production. Alienation or other transfer of ownership of breeding products (material) is permitted if there is a certificate (certificate) issued in accordance with the provisions of the above-mentioned Federal Law.
