Anna Taitslin
The evolution of the concept of ownership in the Russian law from the Svod Zakonov to the 1994
Civil Code
The paper seeks to bring attention to the historical evolution of concept of ownership within the civil law
tradition: from unitary concept in the classical Roman Law, to ‘split’ or ‘divided’ ownership in the
medieval ius commune, and finally, to the modern concept of unitary ownership. It argues that the
modern Russian law trend to re-integrate a number of perpetual proprietary rights (inherited from the
Soviet civil law) goes against the pre-revolutionary Russian civil law tradition which embraced the
modern concept of unitary ownership. The paper advances several theses. Firstly, pre-revolutionary
Russian civil law was hostile to the notion of split or divided ownership and consistently declined to
absorb perpetual proprietary rights, such as the chinch possession, within the body of civil law.
Secondly, the Soviet civil law, based upon the notion of the state ownership of land, brought about
divided ownership of land and buildings. Next, the recognition of state enterprises as legal persons
together with the dogma of unitary state ownership led to emergence of a novel specimen of proprietary
rights: right of operative management. Finally, the post-Soviet civil law not only inevitably faces the
Soviet legacy of state ownership of land (existence of perpetual land-use rights and separation of
ownership of land and of buildings) but it also unnecessarily embraces the two new species of the right
of operative managements.
From the history of the notion of ownership
The understanding of ownership as a right of use and disposal might be traced back to post-glossator
Bartolus’ definition of ownership.1
In Roman Law ownership was not defined, but one who had ownership also had the civil law
possession. The civil law possession implied ‘factual’ control over the thing as well as ‘animus’ or
intention to possess.2 So a person, who hold the thing in the name of owner, as a rule, had no ‘civil’
1
Bartolus (Commentaria), ad D. 41,2,17,1,nr. 4: ‘Quid ergo est dominium? Responde: est ius in re corporali perfecte
disponendi, nisi lege prohibeatur’ (what is ownership? Answer: it is right to disposal corporeal things in most absolute
manner unless prohibited by law). Later ius commune writers expanded Bartolus’ definition of dominium to include ius
utendi et abutendi: ‘dominium est ius ac potestas, re quapiam tum utendi, tum abutendi, quatenus iure civili permittitur’: F.
Hotman (1524-1590), Commentarius de verbis iuris antiquitatum romanarum elementis amplificatus, 569; (R. Feenstra,
‘Historische aspecten van de private eigendom als rechtsinstituut’, RM Themis 1976, p. 249-54). Interestingly, in the 19
century a similar definition of ownership (dominium est ius utendi et abutendi re sua, quatenus iuris ratio patitur) was
promulgated by Proudhon (but he wrongly attributed it to ‘Roman Law’). See also, D.V Dozhdev, Rimskoe chastnoe pravo,
3rd ed, M, 2008, 388). Dozhdev listed the two Roman Law sources (D 5.3.25.11: in relation to bona fide possessors who
‘dum re sua se abuti putant’ and C 4.35.21: where dominus negotii was called ‘suae quisque rei moderator et arbiter’)
which were misinterpreted by the medieval commentators, with the Roman Law ‘abuti’ being taken to mean to ‘misuse’ in
general sense.
2
Possideri autem possunt, quae sunt corporalia… quod autem diximus et corpole et animo adquirere nos debere
possessionem (Paulus, Dig. 41.2.3).
possession.3 Thus, generally, a person who had only ius in re aliena would not ‘possess’.4 The
exception to this rule was emphyteusis,5 perpetual inherited lease (which arose out leasing of the waste
imperial land for cultivation for a small rent). In one instance (C 11.62.12) emphyteucarius was even
referred as dominus. This perpetual use (notwithstanding being ius in re alena) had been protected by
actio rei vindicatio utilis.6
In the fourteen century the post-glossators, such as Bartolus, defined those (such as emphyteucarius)
who had this actio as dominii utile.7 The post-glossators developed the theory of split or divided
ownership to account for the feudal reality of ius commune, with a vassal having dominium utile, while
his lord had dominium directum.8
This medieval notion of split ownership was attacked by the humanists as a corruption of the classical
Roman law.9 But the matter at stake was not merely to re-classify anomalous perpetual rights like
empheutesis as ius in re aliena: the real issue was to ‘banish’ perpetual rights as such. The modern
notion of absolute and unitary ownership was a result of the disintegration of the medieval feudalism.
The age of Enlightenment brought about the era of codification. Among the ‘natural law’ civil codes,
the French Code of 1804 (art 544) reproduced the ius commune ‘generic’ definition of ownership as
right to use and dispose in the most absolute manner unless prohibited by law. Likewise , the Austrian
Civil Code (ABGB) of 1811 described right of ownership as right to dispose the substance and the fruits
of the thing at discretion and to exclusion of others (ABGB art 354).10 The Prussian code (ALR) of 1794
3
‘…nec idem est possidere et alieno nomine possidere: nam possidet, cuius nomine possidetur’ (Celsus, D.41.2.18).
…usufructuarius vero usucapere non potest, primum quia non possidet, sed habet ius utendi et fruendi…(Gai Inst, ii, 93)…
Possidere autem videmur non solum si ipsi possideamus, sed etiam si nostro nomine aliquis in possessionem sit…(Gai Inst,
iv, 153). Esse in possessione (to be in possession) thus was contrasted with possidere (to possess).
5
…novum emphyteusis in possessionem suscipire (Cod. J. 4.66.3.3). Emphyteusis was defined by emperor Zenon as ‘ius
tertium’ (Cod. J. 4.66.1).
6
In some instances, though, emphyteuticarii were defined as … ‘fundorum sunt domini’ (Cod J. 11, 62.12), at odds with the
Roman Law norm (D.13.6.5.15) that duorum quidem in solidum dominium vel possessionem esse non posse.
7
So Bartolus (Gl ad D. 41.2.16 Nr 5.6.) claimed with reference to Cod. J. 11.62.12.1 that the owner and emphytecarius both
the ‘owners’: ‘et si duo sunt domini, diversa domina sunt, quia non idem dominium potest esse apud duos’ (Venediktov,
http://download.nchti.ru/libr/books/Right/ClassicOfRussianCivilistic/Elib/1660.html)
8
R Feenstra, “Dominium and ius in re aliena: The Origins of a Civil Law Distinction”, in New Perspectives in the Roman
Law of Property, ed. P.Birks, Oxford, 1989,112-3.
9
Contribution of the 16 century humanist Hugo Donellus was particular important: he rejected ‘divisio vulgaris qua
dominium dividunt in directum et utile’ (lib IX, cap XIV, p 453-4). He also stated (lib IX, cap XIII, p. 443) “ Haec iura
numero sunt quinque: ius emphyteuticum, seu ius agri vectigalis, ius superficiarium; ius bonae fidei possessoris; pignus seu
hypotheca; servitutes. Ex quibus duo priora sunt dominio proxima, et qui ea habent, quasi domini sunt. Cetera a dominio
longe recedunt.” Although Donellus conceded that emphyteuta was ‘quasi dominus’ he also re- classified ius
emphyteuticum as specimen of iura in re aliena (Lib IX, cap XX1, p 472) Donellus also provided the extensive list of rights
of ownership (Commentarii de iure civili, 1590), vol. V, lib. IX, cap. IX, p. 295: …ut qui dominus sit rei, idem dominii iure
omnes habeat. Prima, ius tenendae et possidendae rei. Secunda, licere incolumen tueri. Tertia utendi fruendique ius. Quarta,
ius ab eius usu arcendi quos libet. Postrema, ius alienandi deminuendive.’ (Feenstra, 1989, 112-3). So, while Donellus
already understood that iure in re aliena were to be contrasted with dominium, he however continued to define ownership
through rights. This was the ius commune lasting legacy!
10
However, the Austrian Civil Code distinguished full and ‘incomplete’ (divided) ownership (ABGB art. 357).
4
defined the full ownership through the right of possession, use and disposal. 11 The inclusion of the right
of possession as one of the right of ownership might be explained by the presence in the ALR also a
concept of ‘split’ ownership understood as a separated ‘given away’ right.12
Pre-revolutionary Russian civil law:
Emergence of notion of ownership
The word sobstvennost’(ownership) emerged in the Russian language only in the eighteenth century.13
The expression ‘pravo sobstvennosti’ (right of ownership) first was used the 1882 Manifest which
granted to the gentry the private property rights in the gentry estates (pomest’ya). Prior to this time (or
more specifically, prior to the Petr III emancipation of the gentry from the compulsory service), the
gentry held the estates on condition of the performance of the service. In a sense, the both social orders,
peasantry and gentry, were in ‘servitude’ to the state. The by-product of the 1885 Decree was a formal
legal negation of serves’ rights in their customary land. As a result, the concept of ‘split’ ownership in
land (between landowners and peasants) had no legal recognition in Russia on the turn of 19 century.14
In the reign of Alexandr I, the 1803 Decree on Free Land-tillers (Ukaz o Svobodnykh khlebopashtsakh)
envisioned mainly the emancipation of individual peasants through redemption of their plots
(immediate or over period of time) but also included an option of setting up of perpetual hereditary use
of land (in exchange for some dues). 15 Probably, in a view of this potential legal existence of hereditary
possession, the outline for the draft of Civil Code, prepared in 1804, contained the section on obrochnoe
vladenie.16 But the second book of the draft Civil Law comprising the property law, published in 1814,
11
Allgemeines Landrecht fuer die Preussisches Staaten book 1 , title 8, §. 9: Zum vollen Eigenthume gehört das Recht, die
Sache zu besitzen, zu gebrauchen, undsich derselben zu begeben. http://www.smixx.de/ra/Links_F-R/PrALR/pralr.html
12
Venediktov noted that the expression ‘Nutz und Gewerh’ (use and possession) was used in the old German
Rechtsbuecher to denote dominium utile, and he linked this [early] understanding of split ownership with later [post ius
commune] interpretation of split ownership as a separate right (A.V. Venediktov, Gosudarstvennaya sotsialisticheskaya
sobstvennost’, 1948; http://download.nchti.ru/libr/books/Right/ClassicOfRussianCivilistic/Elib/1661.html).
13
The term ‘sobstvennost’ was used in Ekaterina the Great Nakaz to gubernator in 1765; the expression ‘pravo
sobstvennosti’ first appeared in the 1882 Manifest (K.A. Nevolin, Istoria rossiiskikh grazhdanskikh zakonov, part II, Polnoe
sobranie sochinenii, vol 4, 1857, 117-21; A.V. Venediktov, Gosudarstvennaya sotsialisticheskaya sobstvennost’,
http://download.nchti.ru/libr/books/Right/ClassicOfRussianCivilistic/Elib/1659.html). Babaev traced the first usage
‘sobstvennost’ to the 1710 treaty (A.B. Babaev, Sistema veshchnykh prav,2006, 50).
14
This legal reality was reflected in chapter V of vol IX ‘Ob obyazannykh krest’yannakh, vodvorennykh na pomeshchichikh
zemlykh’: [951] (in the numeration of the 1855 ed. of the Svod) declared that the landowners [pomeshchiki] retained the full
right of ownership [votchinnoi sobstvennosti] in land (cf. Skrebitskii, vol 1, 303). As K.P. Pobedonostsev noted [feudal
relationship] in Russia, were regulated by public, not private, law (Course of Civil Law, part 1, ed. 5. 1896, 133-5).
15
The 1803 Ukaz did not envisioned specific peasant communal ownership or possession (in market contrast with Nikolai I’s
Ukaz ob Obyazannykh krest’yanakh (Decree on Obligatory Peasants) from 2 April 1842 which provided for a reciprocal
agreement between the landowner and a peasant commune to allot it the land for use in exchange for certain dues). Also in
the reign of Aleksandr I, in 1804, in two Baltic gubernias, Livland and Estland, serfdom was reformed through the
introduction of perpetual inherited possession. Further, in 1816-1819, in all three Baltic gubernias (Livland, Estland, Kurland)
the peasants were emancipated without land, overriding the provisions of 1804 reforms. The Baltic gubernias were, however,
subject to its own local land law (which was codified in 1864).
16
Trudy
Komissii
sostavleniya
zakonov,
2
ed,
1832,
vol
1,
58
;
Venediktov,
http://download.nchti.ru/libr/books/Right/ClassicOfRussianCivilistic/Elib/1661.html.
already contained no concept of split or divided ownership (such as were codified in the Prussian and
Austrian civil codes).17 Speranskii’s 1814 draft of ‘civil code’, however, never became the Code.18
The 1832 Svod Zakonov (the foremost achievement of Speranskii) was a product of the different reign
and the different epoch, which saw the demise of Natural Law ideas and the rise of the German
Historical School leaded by Savigny (who was a vocal critic of the ‘Natural Law’ codes). The Svod
Zakonov was intended to be not a ‘code’ but rather a systematic catalogue (‘svod’) of the existing laws
of the Russian Empire.19
Speranskii’s definition of ownership in the Svod Zakonov Grazhdanskikh
The Svod, however, inevitably, went beyond of simple inventory of the existing law: it deal with
abstract concept, such as ownership (sobstvennost’). The 1832 Svod (just as in Speranskii’s early draft
of civil code) contained ‘absolute’ and ‘unitary’ concept of ownership which was transplanted into
Russian during the reign of Ekaterina the Great.
According to art 420, 20 [a person], who, being a first acquirer of the property by means of a lawful settlement of
it into private belongings, had acquired a power, in the manner established by the civil laws, exclusively and
independently from another person, to possess, to use and to disposal this property perpetually and hereditarily,
until [he/she] would not transfer this power to somebody else, as well as [a person], who received this power
from its first acquirer either directly or through the subsequent lawful transfers and settlements, have the right of
ownership in this property.
Speranskii thus defined not ‘ownership’ but ‘right of ownership’, probably following the terminology of
the 1882 Manifest (instead of defining ownership as a right, as in the French code). This right he
understood as a trifold power (vlast’) to possess, use and dispose, without interference from others,
perpetually and hereditarily. 21 This right was also for him a power, either first acquired ‘in the manner
established by the civil laws’ or through lawful settlement. The pre-revolutionary civilists saw that this
condition of licit or lawful power to be a limitation on ‘independent’ and ‘exclusive’ character of a right
17
Trudy
Komissii,
vol
2,
chapters
III-V;
Venediktov,
http://download.nchti.ru/libr/books/Right/ClassicOfRussianCivilistic/Elib/1661.html.
18
The liberal expectations (and plans of constitutional reforms) of the early part of Alexandr I’s reign were soon over:
Speranskii himself fell out of favour with Alexandr I and was sent to the exile. See also A.B.Babaev, Sistema veshchnykh
prav, Wolters Kluwer, 2006, 36-9.
19
In the Svod, the civil laws were listed in the part 1 of the volume X.
20
References are to the Svod provisions are to the 1908 ed. of the Svod.
21
Note 1 to art 420, art 513. Interestingly, the Svod also referred to the common meaning of ownership as a right of
perpetual hereditary possession [votchinoe possession]. This shows that possession was understood as an intrinsic attribute of
ownership. Hence, defining ownership through ‘rights’ of possession, use and disposal, in a view that all such rights could be
separated from ‘ownership’, has its pitfalls. It seems in the pre-revolutionary civil law, aside of case of life possession
(usufruct), no separate possession were possible; in a case of contractual relationship, the possession remained with the owner
(E. V. Vas’kovskii, Uchebnik grazhdanskogo prava, 1896, http://civil.consultant.ru/elib/books/24/page_26.html#44;
M.Raff, A.Taitslin, Socialist Civil Law in Comparative Perspective: Looking Back to the Twentieth Century, Paper presented
at the VIIIth International Congress for Central and Eastern European Studies [ICCEES] in Stockholm on 30 th July 2010).
AV Babaev also noted the originality of the Svod ‘s triad (Sistema veshchnykh prav, M, 2006, 51-3), which he saw as
Speranskii’s personal invention. Babaev rightly pointed out the distinction of Speranskii’s triad from the French Code’s
definition of ownership. However, Babaev did not notice the similar definition of ownership through ‘categories’ of
possession, use and disposal in the Prussian Code.
of ownership.22 The reference to the lawful settlement was interpreted by Venediktov as denoting ‘title’
[titulus], meaning something beyond of merely bundle of rights. In Venediktov’s case, such
interpretation served to strengthen Venediktov’s own interest in the history of the concept of split or
divided ownership (so to explain the notion of ‘bare’ owner). 23
Thus, probably Speranskii definition was modelled upon the ALR (although in the Svod, such definition
had not been used to underpin the concept of split ownership). The Svod’ provision on usufruct - art
514 (also a life possession the widowed spouse: art 533) - as ‘separate possession’ being specie of
‘right of possession separate from the right of ownership’ might be further seen as a sign of the
influence of the ALR approach .
‘Not full’ ownership in the Svod
The Svod, as Venediktov convincingly argued, contained no concept of split or divided ownership. In
his opinion, in the Svod, ‘not full’ right of ownership (art 432) meant either lawful restriction on the
right (art 433 - right of participation, public and private, – land servitudes) or contracting out of
certain rights (art 541 – separate right of disposal24: lease, loan and other contracts; or art 514- separate
possession – usufruct 25) or compulsory alienation of rights ( art 542 - prohibition of mortgage of
property or sequestration of property).26 The Svod also allowed for ‘separate use’ (art 535-536: personal
servitude). All these rights were merely limited proprietary rights.
This Svod concept of ownership reflected the notion of absolute ownership which had been transplanted
to Russia during the reign of Ekaterina the Great, when the [Enlightenment] concept of private property
rights first took hold in Russia. Unsurprisingly, neither perpetual proprietary rights (such as
emphyteusis) nor peasant customary land use ‘rights’ could be find anywhere in the Svod Zakonov
22
K. Annekov, Sistema Russkogo grazhdanskogo prava, vol 2, S-P, 1900, 13-4.
As Cherepakhin argued, the Svod implicitly recognised the right of ownership as acquired in res nullius. So probably, one
cannot read too much into the reference to the lawful settlement. Cherepakhin noted that in spite of the lack of explicit
recognition of acquisition by occupation of ownership of a thing in nobody’s possession, the Svod Zakonov [539 note 1]
provided that a wild beast that moved from one estate to another came under different ownership, implicitly recognised this
way of acquiring ownership (B.B Cherepakhin,‘The initial ways of acquiring ownership under the current law’ (1924) [republished in B.B. Cherepakhin, Trudy po grazhdanskomu pravu, M, Statut, 2001). He also noted that the 1922 Code also
explicitly recognised the acquisition of property without a certain owner in § 68 regarding lost cattle. This provision also
reappeared in the 1964 Code. The acquisition of ownership in things without a certain owner was acknowledged in art 225
of the 1994 Civil Code (see also M.Raff, A.Taitslin, Socialist Civil Law in Comparative Perspective: Looking Back to the
Twentieth Century, Paper presented at the VIIIth International Congress for Central and Eastern European Studies [ICCEES]
in Stockholm on 30 th July 2010).
24
The assumption of art 541 & 542 of separation of the right of disposal from the right of ownership was justly criticised by
the pre-revolutionary civilists (Annenskii, 84).
25
According the Senate’s opinion, there could not be perpetual separate possession under art 514 (decisions 92/72, 1903/60,
1904/41 [in this decision, however, the exception was made with regards of perpetual holding/maintenance of public and
urban lands: art 55, part 1 of vol VIII of the Svod. But under the Law from 10/11/1871 the towns received the right of
ownership on the land in their possession (Commentary to art 515,Senate decision 79/195, Tyutryumov, 324). According to
art 1011 the property could be bequeathed only in full ownership or in temporal possession and use.
26
The position of the Editorial Commission preparing the Draft of the Civil Code was that the right of disposal was restricted
but not separated: the 1902 Draft, book three Votchinnoie pravo (Tyutryumov, 1908, 361).
23
Grazhdanskikh. Peasant de facto land use rights, nevertheless, presented the biggest challenge to this
vision, particularly, in a view of the paternalist attitude to the peasantry on the part the imperial
bureaucracy.27 During the preparation to the peasant emancipation of 1861, the contradiction of any
perpetual rights or divided ownership to the concept of ownership of the Russian civil law was
convincingly argued by the gentry deputes. 28 The commentaries to art 543 (right of common
ownership) though referred to family (household) ownership.29
Unwanted perpetual right ‘on the ground’ - chinsh possession
Following the decree from 21 August 1840, the Svod Zakonov came in force in the Western gubernias
which became part of the Russian Empire in the late 18 century and were, historically, under the
Lithuanian Statute. The Lithuanian law, however, in contrast to the Svod, recognised emphyteusis - as
so called ‘chinsh’ possession: perpetual possession with payment of certain fixed natural or monetary
rent to the land owner. The 1840 law did not explicitly abolished the existed chinsh possession
(although, it was less clear could chinsh possession to be established after 1840). In any case, the chinch
possession became ‘the fact on the ground’, even though it was not codified in the Svod.
But to say that the Russian legal system was forced to deal with the chinsh possession is not the same as
to say that the Russian law embraced it. Under the Decree from 9 June 1886 chinsh possession
(including any chinch possession which came into being after 21 August 1840 but prior 9 June 1876)
was to be terminated [within three years: art 10] by means of voluntary agreement either by the
owner’s redemption of the chinch right or the chinch possessor’s acquisition of the chinch allotment
into ownership or replacement of the chinch possession by lease.30
27
This attitude prevailed among the imperial bureaucracy the from the time of Kiselev’s reforms in relation to the crown
peasants of 1830-1840s: the reform embraced the communal land use as a model for peasant land relationships), and was only
dissipated aftermath of the peasant disturbances of 1905.
28
http://download.nchti.ru/libr/books/Right/ClassicOfRussianCivilistic/Elib/1661.html. Venediktov also noted the proposal of
the Editorial Commissions ( drafting the 1861 peasant emancipation law) to recognise the right of ‘not full’ ownership for
peasants. This proposal produced the strong negative reaction from the deputes of the gentry committees of the second
summon (A.I. Skrebtiskii, Krest’yanskoe delo v tsarstvovanie imperatora Aleksandra II. Materialy dlya istorii ocvobozhdenia
krest’yan, 1862, Bonn, vol 1, 233-6). The deputes, in my view, convincingly argued that the Editorial Commissions’ notion of
‘not full and indivisible’ ownership was effectively a new type of ownership, at odds with the definition of either not full
ownership or indivisible ownership (such as ‘maiorat’) contained in the Svod. The Editorial Commission attempted to apply
the notion of separate temporary land possession (such as usufruct), as co-existed with the right of ownership of landowner
[votchennik]), to [separate] perpetual peasant land use (Skrebitskii, 227-8). In some sense the norm of the 1861 law on
‘temporary dependent’ peasants (which had ‘temporarily’ guaranteed possession) could be seen as a ‘residual’ of this notion
of inalienable peasant possession : in the central Russia the ‘temporary dependent’ peasant status (with peasants having
inalienable possession of the land in exchange for either continuing barshchina at landlord’s fields or obrok monetary
payment) came to the end only in 1883 afterwards of the 28/12/1881 Rules for compulsory redemption.
29
Senate’s decisions 1900/23; 93/91; Tyutryumov, 363-4. The reference to the peasant land as a special kind of
possession, distinguished from the right of (full) ownership, was also I the commentaries to art 420 (ownership).
Besides, the commentaries to art 698 contained references to the Law from 14 December 1893 prohibited the disposal of
peasant land (except by inheritance) to non-peasants (Tyutryumov, 549-50).
30
The wide scope of the 1886 Law as applying to all rural chinsh possessors was confirmed by the opinion of the State
Council (which received the Imperial Approval) (Tyutrumov, 323). However, the urban chinsh possessors, as well as
chinsheviki in Novorossia (Senate decision 41/1904) were outside of the 1886 law ( A.V. Kopylov, Veshchnye prava na
zemlyu, M. Statut, 2000, 101).
The pre-revolutionary Russian civil law, thus, was consistently hostile to emphyteusis. Notwithstanding
this apparent legal trend, the 1905 Draft of the Civil Code attempted to codify the inherited perpetual
possession.
‘Obrok’ possession in the 1905 Draft of the Civil Code31
The 1905 Draft of the Civil Code attempted to codify chinch possession as a hereditary obrok
possession in §§ 927-936.32
Under § 927 a person in possession of land by virtue of the right of hereditary obrok possession acquires
perpetual or long term periodic hereditary possession of the land of another with an obligation to pay annual rent
[in money or in kind] to the owner. The period of obrok possession may not be less than 36 years. Under § 930 a
person in obrok possession may alienate or bequeath his right of possession in whole or in part; a person in
perpetual possession or for a term over 99 years may also mortgage the right and grant servitudes. After a period
of 36 years, a person in obrok possession may acquire ownership of the land by repaying the whole of the rentcharge [mortgage] sum. Under § 932 the parties may contract not to allow redemption of the land within 60
years. Under § 936 the owner of the land may require termination of the obrok possession if the rent is not paid
for three years or if the person in obrok possession breached one of the main terms of the contract.
This was a noted legal development, which might be was a sign of entrenching of chinch possession.
But, on the surface such codification was in a direct contradiction of the 1886 law. Besides, it did not
correctly define the Russian civil law trend regarding perpetual proprietary rights, as the 1912 law on
building rights demonstrated.
The ‘obrok’ possession was not the only legal innovation in the 1905 Draft.
The peasant ownership in the 1905 Draft of Civil Code33
Another legal innovation of the draft was the attempt to codify the peasant communal ownership as well
as another form of peasant ownership – farmstead ownership.
Despite of the refusal of the Svod to recognise of the civil law existence of peasant land-use rights, they
were de facto recognised by the 1861 Law with emancipated the peasants with their customary land.
The communal ownership was a novel legal product of the 1861 Law, which, in most of Russia,
emancipated peasants with land given not to individual peasants households but to the commune, which
was made responsible for the redemption payments.
31
This section is based on: M.Raff, A.Taitslin, Socialist Civil Law in Comparative Perspective: Looking Back to the
Twentieth Century, Paper presented at the VIIIth International Congress for Central and Eastern European Studies
[ICCEES] in Stockholm on 30 th July 2010.
32
This description of obrok possession is from: M.Raff, A.Taitslin, Socialist Civil Law in Comparative Perspective: Looking
Back to the Twentieth Century, Paper presented at the VIIIth International Congress for Central and Eastern European Studies
[ICCEES] in Stockholm on 30th July 2010.
33
The description of peasant ownership is from: M.Raff, A.Taitslin, Socialist Civil Law in Comparative Perspective:
Looking Back to the Twentieth Century, Paper presented at the VIIIth International Congress for Central and Eastern
European Studies [ICCEES] in Stockholm on 30 th July 2010.
The 1905 Draft set out to codify peasant ownership either as ‘communal right’ or ‘household right’
(podvornoe pravo). Under§1219 peasants hold their land by way of either a household right or a
communal right.
According to § 1220, under the household right the fields as well as homestead was in the ownership of an
individual peasant family; under the communal right the homestead plots belong to individual peasant families
but the fields are in the ownership of the peasant commune, although the field allotments might be in possession
of peasant family.
According § 1221 common lands belonged to the peasant commune and consisted of: 1. the land within the
settlement that is not in possession of individual peasant families, such as streets, squares, the land between
homesteads and so on; 2. surrendered [escheated] homesteads and farmsteads; 3. common pastures and other
land held in the common and undivided use of all members of the commune; 4. plots of land leased by the
community.
With respect to communities [described in §§ 1219-1221] under peasant communal right the peasant meeting
will decide, among other things: repartitioning of the lands; assignment of tax burdens; allocation of communal
land into the ownership of individual peasant families; distribution of homestead and field lands between family
members under family partitions; disposal of surrendered [escheated] allotments; conversion of land from
communal right to household right; alienation of communal land. With respect to communities under peasant
household right, the communal meeting will decide on the disposal of surrendered [escheated] allotments.
According to § 1222, with respect to communities under peasant communal right and those under household
right, the peasant meeting will decide the disposition of common lands and leased public property. According to
§ 1227 farmstead plots and household/homestead plots may be alienated only to persons of peasant class.
According to § 1229, neither peasant communes nor individual heads of families may mortgage the land to
private persons or private establishments.
The 1905 Draft was unique in its inclusion of the communal peasant ownership which came into being
after 1861. Traditional communal land use was not part of the Russian civil law (vol X, part 1 of the
Svod).
Under communal ownership, as codified in the Draft, ‘commune’ as a legal entity had
‘ownership’ and individual peasant families had ‘possession’, although the family allotments could be
subject of repartitions - §1246-1247 (but no often than once in 12 years - § 1248), every family had
‘guaranteed’ possession of some allotment. It was, in essence, a form of ‘split’ or ‘divided’ ownership,
which the Svod had so completely omitted. Communal land-use was codified in the 1922 Land Code.
Yet another specifically ‘peasant’ legal concept, codified in the 1905 Draft was ‘household’ (dvor)
ownership. ‘Household’ emerged as a tenacious concept – it was codified in 1922 Land Code, reappeared in the 1964 Civil Code (and the 1970 Land Code), and (!) in 1994 Civil Code.
The 1905 Draft, thus, attempted to codify the specific legal form of ownership which applied to the
peasantry exclusively, thus, entrenching the civil right inequality of peasants, which was a result of the
1861 Law, which effectively created unknown to the Russian civil law – peasant communal ownership.
At whole, the 1905 Draft sought to reflect the law and peasant practices on the eve of the Ukaz of 9
November 1906. The 1906 Law, in contrast, attempted to dismantle communal ownership by promoting
‘mainstream’ private property in land among peasants. In the light of the subsequent Stolypin’s
reforms, the Draft attempts of specifically ‘peasant’ ownership forms could be seen as a merely
historical ‘episode’, if not for the post-revolutionary codification of these concepts, although in the
form of ‘use’ rather than ‘ownership’.
Definition of ownership in the 1905 Draft Civil Code
The 1905 Draft of Civil Code (§ 755) set out to define the right of ownership as a right of total and
exclusive dominion (gospodstvo) of a person over the property, insofar as this right is not limited by law
or by rights of other persons.
Inclusion of the second part of definition of ownership in the Draft might be seen as following the
German Civil Code34 rather than the Svod, with its definition of absolute ownership as ‘independent’ of
others. However, the Draft still defined ownership as a total and exclusive power.
Besides, the Draft also retained the Svod definition of right of ownership through possession, use and
disposal, although re-defining ‘power’ as ‘right’. Under § 756 the owner would enjoy the right to
possess the property free from interference. Under § 757 the owner would have had the right to use the
property, receive income from the property, and use the property at his or her own discretion. Under §
758 the owner would have had the right to dispose of the property.
Thus, the Draft contained two definitions of right of ownership : Speranskii’ definition of ownership as
exclusive power over property as well as a lawful power (i.e. right) to possess, use and dispose was
preserved in the Draft.
Superficies in the Russian pre-revolutionary law
Superficies, alongside of emphyteusis, was another ‘anomalous’ ius in re aliena of the Roman Law
(originated first on public land) which amounted to perpetual use of buildings on the owner’s land in
exchange for a certain rent, without explicit breach of the principle superficies solo cedit (Gai. 2.73). 35
In the reign of Ekaterina the Great, when the concept of private property rights was taking roots in
Russia, the Mezhevaya Instruction from 25 May 1766 envisioned the abolition of superficies, with the
supeficiarius (!) repaying the value of land to the owner.36
Superficies, however, found a new legal leave of life in the law on building rights from 1912. However,
in contrast to Roman law superficies, the 1912 law limited the life-time of superficies established by
contract and for valuable compensation (art 1) by period from 36 to 99 years (art 3).37 The majority of
members of Special commission of the State Council (which presented their recommendation to the
State Council) considered that the perpetual superficies, which, effectively, would make superficarius
34
Buergerliche Gesetzbuch was influenced by the [Germanist fraction of] German Historical school’s notion of ‘responsible’
ownership.
35
A superficarius could dispose a superficies by testament, could pledge it or alienate by other means (W. Smith, A
dictionary of Greek and Smith Antiquities, L, 1875; see also Dozhdev, 477-9).
36
The anomaly of this arrangement was noted by Kopylov (id, 136-7)
37
The building right could be acquired by person who had right to acquire immovable property in the locality (except in the
case of ‘nadel’naya’ land, where it could be acquired by person of any estate/class (art 6).
an owner, thus, creating split/divided ownership (just as perpetual chinch possession), was an institution
alien to the Russian civil law.38
The 1912 law on building rights’ historical importance came from the fact that the limited building right
(reminiscent to the 1912 law) was one of only two proprietary rights (the second being pledge) codified
in the 1922 Civil Code.
In sum, the pre-revolutionary civil law, did adhere faithfully to the idea of the unitary ownership, with
the legal practice resisting the embedding the perpetual proprietary rights (such as chinch possession or
perpetual superficies) as leading to split ownership. As to the legal innovations of the 1905 Draft, they,
besides never passing the ‘draft’ stage, were also counterweighted by a new legal reality on the ground,
as a result of Stolypin’s reforms, which aimed to dismantle the specifically ‘peasant’ form of ownership,
such as communal possession.39
Post-revolutionary civil law
Definition of ownership in the 1922 Civil Code
The Civil Code of 1922 (RSFSR) recognised for the owner the right of possession, use and disposal of
property, within the limits imposed by law: art 58.
Thus, the pre-revolutionary vision of a right of ownership through the ‘right’ (in place of ‘lawful
power’) of possession, use and disposal had survive even the cataclysms of the revolution
(notwithstanding the infamous Decree No1, which, practically, assigned to the past the 48 volumes of
the Laws of the Russian Empire).
On the methodological level, the specific feature of the 1922 Civil Code was the [tautological] use of
‘ownership’ in the place of the Svod’s usage of ‘property’ (imushchestvo) in the law of things (even
though it was still used in the section on ‘objects of rights’).40 Probably, the withering away of the
concept of ‘property’ was also influenced by the abolition of legal distinction between immovable and
movable property (note 1 art 21). Abolition of this distinction was a by-product of the exclusive state
ownership in land (art 21).
The main conceptualisation of ‘limitation’ on the notion of ownership in the 1922 Civil Code was in
restriction on the objects in private ownership(art 20-24, 53, 55, 56) . Art 20 & 53 declared land to be
exclusive state ownership).
38
Kopylov, 142. Kopylov also noted the contrast of this Russian legal position (against perpetual proprietary right) with the
German Civil Code (which allowed for perpetual superficies) (ibid).
39
The specific ‘peasant’ forms of ownership were also against the spirit of the 17 October 1906 Manifest which proclaimed
equal civil rights for all subjects of the empire.
40
The conflation of ‘property’ and ‘ownership’ as a feature of the Soviet law was first brought to my attention by Prof Raff
(see also Raff M, Taitslin A, “Contradictions in Privatisation in Eastern Europe as Reflection of Contradictions in the
Socialist Concept of Ownership”, Transcultural Studies: A Series in Interdisciplinary Research, vol. 2-3, 2006-2007).
Building rights in the 1922 Civil Code of RSFSR & ownership rights in building in 1948 Decree of
presidium of Supreme Council of the USSR
The building rights existed in the Soviet law from 1922 to 1949 and were codified in ss. 71-84 of the
1922 Civil Code. In contrast to the 1912 law, the 1922 Civil Code envisioned the shorter life span for
the building rights (which arose by contract of the municipal department with cooperative unions or
other legal persons as well as individual citizens): up to 49 years for stone buildings and up to 20 years
for all other buildings (art 71).
The existence of this limited proprietary right in the 1922 Civil Code was a testimony of intention of the
drafters to keep the concept of ownership at least as far as possible in accordance with the principle
‘superfecies solo cedit’. This principle, of course, was fundamentally undermined by withdrawal of land
from private ownership (art 21). Theoretically, in the hypothetical case of all buildings and other
former immovable being nationalised (art 22 contained the extensive list of former immovable which
could not be in private ownership), the state ownership of land would not formally affect this principle
(at least with respect to urban land). The reality on the ground (particularly of the period of the NEP)
probably would never conform to such hypothetical legal fiction. So, unsurprisingly, art 54 allowed for
private ownership of non –municipal buildings, trade enterprises and industrial enterprises (with the
number of worker being within the limits prescribed by special laws).
In 1949 the building rights were abolished, replaced with the ownership right as defined by the Decree
from 26 August 1948. The Decree, aimed to alleviate the desperate situation with housing aftermath of
unprecedented devastation left by the second World War, allowed (art 1) to every citizen to buy or to
build a house in one or two flows with number of rooms from one to five, with land granted into
perpetual use (art 2).
With respect to rural land, perpetual land use was codified by the 1922 Land Code.
Communal use in the 1922 Land Code 41
The 1922 Land Code provided for effectively perpetual peasant land use (under de jure state ownership
of land).42 It also codified the communal peasant use.
§ 51. The general meetings of the members of the land communities decide all questions relating to the
community as a whole, such as. the manner of use of land, acceptance of new members and allocating
land to members, repartition of land; crop rotations, common pasture, and so on.
41
See M.Raff, A.Taitslin, Socialist Civil Law in Comparative Perspective: Looking Back to the Twentieth Century, Paper
presented at the VIIIth International Congress for Central and Eastern European Studies [ICCEES] in Stockholm on 30 th July
2010.
42
Under art 18 the right on land for labour use was only terminated: a. by voluntary disclaimer of land by all members of
the household; b. by complete cessation of independent agricultural activity by the household; c. with passing away of
[all members of] household; d. with complete resettlement of household to another place; with forfeiture of right of land
use by criminal offence; requisition of land for public or state needs.
The 1922 Land Code allowed for a different type of land community, employing khutor, otrub or strip
farming.43 Provisions on the right to leave the commune,44 as well as inclusion of khutor and otrub
types of land communities reflected the provisions of Stolypin’s reforms, which modified the conception
of peasant ownership found in the 1905 Draft Civil Code. The inclusion of partnership and artel
community, as well as ‘joint cultivation’, embodied the revolutionary expectations of the shift toward
collective agricultural production. The limit of 12 years for the repartitioning of land provided in the
1905 Draft became six years in the 1922 Land Code.45 But otherwise, the mechanisms for the
functioning of the commune resemble those envisioned by the 1905 Draft. The code also recognised
household use.46
Another important feature of the 1922 Land Code, was explicit recognition of split ownership of land
and fixtures or building on land.47
The 1922 Land Code remained in force until the onslaught of collectivisation from 1927 onwards.
Proprietary rights of state enterprises
Probably the most difficult question which was faced by the Soviet civil law was to define the nature of
[proprietary?] rights held by state enterprises which were recognised as legal persons in the [state]
property which was held by them.48 Under art 19 of the 1922 Civil Code a state enterprise had a right
of free disposition (
) of ‘its’ property (i.e. the property which was not
withdrawn from the civil law transactions). Besides, the note to art 58 (defined the right of owner)
referred to the disposal of the state enterprise’ property [being limited by art 22 and other regulations].
In his 1928 book The Legal Nature of the State Enterprises49 Venediktov insisted that the trust was a
‘legal person’ in the civil law and as such had an ownership rights [in his ‘listed’ property],
notwithstanding being an economic organ of the state, which hold ‘unitary’ ownership of all means of
43
Art 90: land use could be: a. communal (with equitable re-partition of land); b. apportioned ( with household’s right on
the land of certain size: either ‘strip’ parcells of land or otrub allotments or farmstead); c. partnership (with joint use of
land by members constituting agricultural collective or artel’). Art 92: under communal way of labour land use every
household had a right on a share of the communal [field/allotment] land, with the share could be changed for the purpose of
equitable distribution of land.
44
Art 53 & art 54 provides that for valid general meeting two/thirds of representatives of the households and half of all
members were to be present, the decision regarding land use were to be approved by the two/thirds of the present members.
45
Art 122.
46
Art 67: Right on the land in labour use of the household as well as the buildings and agricultural tools belonged to all
members of the household irrespective of gender and age. Art 68: The head of household was a representative of the
household in all its economic matters.
47
Under art 25 all buildings, fixtures, seeds and plants and anything connected with the allotment in use, belonged to the
land-user.
48
The SNK [Council of People Commissars] & VCIK [All Russia Central Executive Commission] decree on Trust from
10/4/1923, art 1 defined the state trust as a state enterprise which was granted by the state an independence in its operations
in accord with the enterprise’s charter, and, which was acting on a self-financing basis in pursuit of profit. Art 7 stated that
the trust used, possessed and disposed the property handed to it by the state. As to the trust ‘listed’ property (Art 15 of the
Decree, the note), it could not include land, mineral reserves, forests and water ways [which all were withdrawn from civil
law transaction]. Trusts merely had the right of land use in accord with the Civil Code Art 21 (Art 6 of the Decree on Trust).
From the date of its registration the trust received a status of legal person according to Art 13 & Art 19, part 1, of the Civil
Code (Art 2 of the Decree on Trust ).
49
Venediktov, Pravovaya priroda gosudarstvennykh predpriyatii, Leningrad, 1928.
production (id, 70-2). 50 According to Venidiktov (in accord with Pashukanis’ theory of exchange,
which was the dominant legal doctrine in the 1920s), while in the sphere of commodity exchange state
enterprise had the ownership rights defined by civil law, in its internal relations with central state organs
the trust acted as an organ of the state and was under [non-legal] organisational-technical relationship
(id, 80). To explain the nature of state enterprise’s ownership, Venediktov’ put forth a concept of
‘formal’ ownership as a kind of ‘trust management’.51Venidiktov saw the Soviet trust as ‘formal’
owner with full ownership rights on its listed property, although, ‘formal’ ownership was confined to
the civil-law exchange (with the trust ‘impersonating’ the ‘commodity’ form of state ownership (id,
132)). In Venediktov view, the trust theory implied the ‘double’ and full ownership, whereas the feudal
theory of split ownership presumed that every participant was non-full owner (unvollstandiger
Eigentumer) with certain proprietary right, so that the ‘split’ owners had separate proprietary interests
and opposed each other as legal subjects (id, 122-4) Venediktov’ trust theory was one of the several
variants of ‘divided’ ownership theory which was advanced by the Soviet civilists in attempts to define
the elusive nature of proprietary rights of the state enterprises in the late 1920.
However, by 1938 (owing to the 1936 Constitution (Art 8) and Vyshinskii’ speech before Soviet legal
academics in July 1938) the doctrine of the unitary state ownership became the Soviet legal orthodoxy
making apparent that state enterprises could not be co-owners of state property owned by ‘the whole
people’.
As a result, in his 1948 book on the State Socialist Ownership Venediktov attempted to develop an
alternative theory of the proprietary rights of the state enterprises. Here Venediktov put forth his
celebrated theory of operative management. He distinguished between the state organs with planregulation function under administrative law and the state organs with economic-operative function. The
state organs with economic-operative function, aside of engaging in acts under administrative law (such
as determining of internal plans or wage limits), also entered in transactions under civil law, such as
contracts of sale, delivery, subcontract, borrowing and so on, necessary for realisation of state plan,
expanding socialist reproduction (SSO, 5.42, 327-8). Such civil law transactions were undertaken
through operative management (SSO, 5.42, 328). So the state, realising its right of ownership, endowed
its economic organs with rights to possess, use and dispose the assets through operative management
(5.43, 332).52 For Vendektov, the bearer of the rights was the workers’ collective.
50
Venedictov distinguished state enterprise as state economic organ from state agency as state administrative organ (id, 72,
note 4)
51
Venediktov traced the roots of this theory to the Roman Law fidei fiduciae causa, when something could be given as a
pledge until repayment of debt (fiducia cum creditore) or for safe keeping until the recall of the thing (fiducia cum amico).
In Venediktov’s view Roman Law fiducia resembled the Common Law notion of ‘trust’ and German Civil law notion of
Treuhaband in so far as all three legal instruments based on the trust of the trustier for the trustee and the distinction
between ‘material’ and ‘formal’ ownership (Venediktov, 1928, 88, note 2).
52
The Decree on state industrial enterprises from 10.4.1923, art 6 stated that the trust possess, uses and disposes the assets
handed to it, but also contrasted those rights to the right of use land, its soil, water and forests (SU, n 29, 332; ibid, 333).
Article 15 of the Decree prohibited inclusion the land, its soil, water and forests as the state enterprise’s assets. The law on
the state industrial trust from 29.4.1927, art 5 also stated that the trust possessed, used and disposed but omitted the reference
to use of land, its soil, water and forests . (SZ, n 29, 392; ibid, 5.43, 333). Art 10 of the law kept the prohibition to include
The purpose of the right of operative management was to provide for necessary civil law capacity of the
state enterprises as economic agents in the system which ousted ‘normal’ private owned enterprises. In
original Venediktov’s vision, the right did not apply to the state organs without ‘economic’ function.
Venediktov’s (presumably perpetual) rights of operative management represented essentially another
specimen of ‘divided’ ownership (it is notable that the state enterprises ‘partook’ in the whole triad of
owner, not just in some of the rights). The post-Soviet privatisation confirmed this impression, with the
workers’ collectives being recognised as stake-holders in the enterprise’s assets.
Ownership in the 1964 Civil Code of the RSFSR
According to the Civil Code of 1964 (RSFSR) the owner held rights of possession, use and disposal of
the object of property within the limits defined by law: art 92.
Under art 94 the state was the unitary owner of all state property: the state property, settled on state
organisations, was in operative management of these organisations, which had rights of possession,
use and disposal, in the limits prescribed by law, and, in accord with the purpose of their activity,
planning tasks and the designation of the property.
Art 94, which codified the rights of operative management of the state enterprises was the principle legal
innovation (regarding the notion of ownership) of the 1964 Civil Code. Another innovation was
codification of common ownership of ‘kolkhoz household’ under art 126. 53
Aside of the right of operative management (which somehow co-existed with the unitary state
ownership) the 1964 Code contained no recognised proprietary rights lesser than ownership (with
pledge being moved under law of obligation).
Ownership in the 1994 Civil Code
Just as the 1922 Civil Code and the 1964 Civil Code, the 1994 Code defined the right of owner (rather
than ownership). According to art. 209
1. Owner has rights of possession, use and disposal of his property. 2. In relation to his property, the owner has a
right, by his discretion, to perform any acts (which were not contrary to law and do not infringe the interests of
other persons protected by law) including transferring ownership of his property, assigning the rights of
possession, use and disposal, pledging the property and encumbering or disposing the property by other means.
3 Owner can possess, use and disposal land and other natural resources freely within the limits defined by law
the land, it soil, water and forests (SSO, 334). Art 58 of civil code of RSFSR stated that owner has, in the limits defined by
the law, the rights of possession, use and disposition of the property. On account of this article of the SC and the articles 5 &
10 of the law on the trust some authors claimed that the trust had ownership right on the property handed to it by the state
(but not on the land, its soil, water and forests) (ibid, 333-4). Indeed such seemed to be a position of Venediktov himself in
1928. In 1948 Venediktov saw the matter differently. He pointed out the article 19 of the SC expression in respect to state
enterprise’s assets as being only at ‘free disposal’ [of the enterprise] as well as the note to the article 58, which mentioned
‘disposition’ of the state property [by the state enterprise] (ibid, 334-5).
53
Property of kolkhoz household belonged to its members on the right of common property. Kolkhoz household could
have in ownership auxiliary production on the homestead allotment in its use, the dwelling house, livestock and other
small agricultural tools in accord with the kolkhoz’ articles: art 126.
unless threating the surrounding environment or rights and legitimate interests of other persons. 4. Owner can
transfer his property in trust to trustee, who must manage the property in the interest of owner or designated
person.
The 1994 Civil Code re-instated near ‘absolute’ definition of property, within constraints imposed by the
environment considerations and rights of others. The inclusion of ‘trust management’ among rights of
owner is another innovation.
However, at least with respect to land, this extensive notion of ownership is seriously limited by the
imposition of ‘designated’ use of the land (art 284, 285 - agricultural or ‘dwelling’ use), with the
breach of such use potentially leading to compulsory acquisition of land.54
Curiously, the 1964 common ‘household ownership’ (itself an echo of the 1905 Draft) found its way
into the 1994 Code.55
Under art. 244. property in ownership of two or several persons belongs to them by right of common property,
with property ether being held in common ownership with determination of the share of every owner (share
ownership) or without ( joint ownership). Under art 257 property of peasant (farmer) household belong to its
members by the right of joint ownership if law or contract does not determine otherwise.
As a positive break with the Soviet law, the post-Soviet civil law had returned to the traditional civil
law principle that the owner of land also is the owner of buildings on it. Under art 263.2: If otherwise is
not determined by law or contract, the owner of the land allotment acquires the right of ownership in
building, fixtures and other immovable .
However, a specific feature of post-Soviet civil law is dominant position of owner of building in
comparison with owner of land: the building’s owner still can freely alienate the building.56 The owner
of land and buildings cannot now alienate buildings without land (art 273); otherwise, the owner of
building has a preferential right of sale of land (art 250)– these are the main provisions aimed to
overcome the division of ownership between ownership of land and buildings.
Under art 271.2, with transfer of right of ownership on the immovable property located on the land of another
person, [a new owner of immovable property] acquires the right to use the respective land allotment on the
same conditions and to the same extent as the previous owner. The transfer of the right of ownership of the
land allotment is not the basis for termination or change in [the right of] use of the allotment by the owner of
immovable property.
Only in the case of owner of land owing building the new owner of building would acquire ownership
of land.
54
This feature of the 1994 Civil Code was noted by Katlijn Malfliet (“La Propriete c’est le vol”, in Private and Civil Law
in the Russian Federation, 314). Recalling the Mezhevaya Instruction from 25 May 1766, one might even see it as sort of
long standing legal tradition.
55
See also Mafliet, 320. She though sees it as ‘harmony of interests’. One though might doubt the particularly
harmonious character of such property …
56
This peculiarity of the 1994 Civil Code was also noted by W Snijders (“The Civil Codes of the Russian Federation and
The Netherland”, in Private and Civil Law in the Russian Federation, Martinus Nijhoff, Leiden, 2009, 22).
Under art 273, [as a result of] transfer of right of ownership in building… owned by the owner of the land
allotment, the acquirer of the building received the right of ownership in land allotment annexed by the building
and necessary for its use, if otherwise is not prescribed by law.
Perpetual rights in the 1994 Civil Code
The 1994 Civil Code also listed several proprietary rights under art 216: 1. Proprietary rights, alongside
of the right of ownership, are right of life inherited possession of land allotment [265]; right of
permanent (perpetual) use of land allotment [268], [land] servitudes [274], [277]; as well as right of
economic maintenance (ekonomicheskoe vedenie) of property [294] and right of operative management
of property [296].2. Proprietary rights can belong to persons who were not the owners of the property.
The 1994 Civil Code re-introduced land servitudes as separate proprietary rights (but not personal
servitudes, such as usufruct). The idiosyncratic feature of the post-Soviet civil law that all proprietary
rights are perpetual rights, which aside of land servitudes were not part of the pre-revolutionary civil
code.
The 1994 Code codified two species of the Soviet right of operative management, although the right of
operative management is a more narrow defined right that the right of economic maintenance. 57
Under art 294, state or municipal unitary enterprise, which had its property by the right of economic
maintenance, possesses, uses and disposes the property in the limits set by the code. The owner of property in
economic maintenance decides (in accord with law) the questions of formation of the enterprise, defining of
its object and purpose of activity, its re-organisation and liquidation, appointment of the enterprise’s head,
control for use the property in accord with its designation and the property’s maintenance. The owners has a right
to received a part of the profit from the use of the property in economic maintenance. 2. The enterprise has no
right to sell the property, which it had by the right of economic maintenance, or mortgage, lease, pay/invest as a
share capital in economic association’s founding capital or dispose it by any other means…
Under art 296. 1. The public [owned by the treasury] enterprise and institution, which had the property by the
right of operative management, possesses, uses and disposes this property (in the limits established by law) in
accord with the aims of the enterprise’s activity, in accord with the tasks set by the owner of the property and
designation of the property. ..
The right of operative management was developed by Venediktov to provide for quasi proprietary rights
of enterprises – legal persons within the Soviet law framework of unitary state ownership. Prior the
57
These rights are subject of substantial academic interest: recently the two Candidate theses were written on the
subject: K P Knyazhevskikh, Pravo operativnogo upravlenia i pravo khozyaistvennogo vedeniya po rossiiskomy
grazhdanskomu pravu (under supervision of E. V Sukhanov), M, 2003; D V Petrov, Pravo khozyaistvennogo vedeniya i
pravo operativnogo upravlenia v sisteme veshchnykh prav (under supervision of V F Yakovleva),S-P, 2002. Petrov traces
the origin of such type of rights to the medieval institute of divided ownership ( par 1, chapter 1). He is of opinion that
even land can belong to legal persons on the right of economic maintenance and operative management (par 1, chapter
3). See also Babaev, Sistema veshchnykh prav,339-52.
establishment of this dogma he preferred to understand the state enterprises’ proprietary rights in
analogy with trustee.
It is not clear why in the circumstances when the dogma of unitary state ownership was left in the past,
the relics of this epoch are codified (in two varieties). One might ask whether do public institutions with
narrow defined right of operative management need to be legal persons. In relation to commercial
enterprises – legal persons with the right of economic maintenance it is even less evident why such
peculiar proprietary right needs to exist (so the existence of such ‘unitary’ enterprises – legal persons
might also be questioned). The notion of legal person was, by necessity, under the Soviet civil law,
detached from the intrinsic civil law attribute of ‘person’ – ownership.58
Besides, the original right of operative management itself bore ‘birth marks’ of the Soviet separation of
land and immovable property on the land: thus the perpetual rights of economic maintenance and
operative management, presumably, need to be accompanied by the corresponded permanent (perpetual)
land use rights. So the legal existence of such rights also protracts the division of ownership in land and
other immovable property.
Vestiges of divided ownership of land and buildings
The 1994 Civil Code contained two perpetual land rights – right of inherited possession and right of
permanent (perpetual) use.
Under art. 266, citizen with the right of life inherited possession has rights of possession and use…2. Possessor
of land allotment has a right to erect buildings, other immovable property … acquiring in it the right of
ownership (if otherwise is not dictated by law). 59
Under art 268, right of permanent (perpetual) use of land allotment in state or municipal ownership is given to
municipal institution, public enterprise, state agency, local self-government body, on the basis of decision of
state or municipal agency which has a right to grant a land-use.
Under 269.2., person, who had given the land allotment in perpetual use, has a right (if otherwise is not
prescribed by law) of independent use the land for designated purposes … including erection of building… and
other immovable property . The property erected by the person for [person’s] own use is in [person’s] ownership.
As followed from the provisions, the two perpetual land-rights also main ‘perpetrators’ of divided
ownership of land and buildings…
The two perpetual land rights are also codified in the 2001 Land Code.
Perpetual rights in the 2001 Land Code
According to art 20,
58
One might recall Pashukanis’ identification of participant in commodity exchange with ‘owner’ and his identification of
civil law as a law of commodity exchange as contrasted with planned economy as sphere outside any law.
59
Under art 267 inherited possession cannot be alienated except by inheritance.
1. State and municipal institutions, state (unitary) enterprises, centers of historical legacy of (former) presidents
of the Russian Federation as well as state agencies and local self-government’s agency have land in permanent
(perpetual) use.
2. Citizens cannot have land in permanent (perpetual) use.
3. The right of permanent (perpetual) use acquired by citizens or legal persons before the current Code is
maintained.
4. Citizens or legal persons who possess the land allotments by the right of permanent (perpetual) use cannot
dispose the allotments.
According to art 21.
1. The citizen who, prior to the present Code, acquired the right of life inherited possession (LIP) of the
allotment in state and municipal property, keeps the right. Since the code, no citizen can acquire the allotment
by the right of LIP.
2. Disposal of allotment in LIP is not allowed aside from transfer of the right of LIP by inheritance (the transfer
of the right of LIP is subject to state registration on the basis of the proof of the right of inheritance).
The comprehensive critique of the Land Code was given by Syrodoev.60 He pointed out the welcome
intention of the code to limit the number of [perpetual] rights (titles) in land (although, the Code did not
contain any time limit for transferring the right of inherited possession into ownership – so it could
continue indefinitely, by inheritance: par 2 art 21 Land Code; art 1191 Civil Code; similarly, no time
limits for transfer into ownership is set in relation to permanent (perpetual) users).61
Another inconsistency (with the Civil Code), noted by Syroedov, is a transfer of land (of agricultural
designation) to unitary state or municipal enterprises [with the right of economic maintenance] not in
perpetual use but in ownership (art 82 of the Land Code).62
The Land Code (art 35.3-4) also contains provisions aimed to overcome division between ownership of
land and buildings.63 So par 4 art 35 does not allow for alienation of the land allotment without
buildings if the land and buildings has one owner.64
60
N A Syrodoev, “Novyi Zemel’nyi kodeks Rossiiskoi Federatsii”, Pravovedenie, 2002, no 1. Some of his observations
about the inconsistency of the Land Code and Civil Code had been acted upon (for example, art 270 and art 553 of the
Civil Code were since abolished)
61
Syrodoev also observed that while the Civil Code (art 267) allows to lease or grant free short term use of the land in
life inherited possession, the Land Code (art 21) did not give the life possessor such right of disposal. Since then the art
267 was amended and now only allows for disposal by inheritance.
62
As Syroedov noted, that while the Civil Code (art 270) allowed for lease or grant of free short term use of the land
allotment in permanent (perpetual) use with consent of the owner, the Land Code (par 4 art 20) prohibited disposal of
land in permanent (perpetual) use. Since then art 270 was abolished.
63
Under art 35. 3 owner of building… on the land allotment of another has preferential right of purchase or lease of land
allotment. Under art 35.4 owner of land allotment and buildings on it cannot alienate land without buildings The Civil
Code since was amended: art 553 was abolished, art 552 of the Civil Code now corresponds to art 35.4 of the Land
Code).
64
The Law on Introduction of the Land Code (par 2 art 3) contains a provision, that under sale of building belonging to
permanent (perpetual) users – legal person, the right of permanent (perpetual) use is to be transferred ether into lease or
ownership. The art 7 of the Law also prohibits privatisation of buildings without land, with owners of buildings receiving
the preferential rights of purchase of land (par 1 art 36).
Syroedov noted the narrowing of the rights of land owners by the list of ‘permitted use’ as defined by art
40 as well as similar rights set for owners and land-users (except servitude-holders), who are not owners
(art 41).65 As in the Civil Code, the right of ownership in land is limited in the Land Code: by the
responsibilities of the owners and users in relation to ‘designated use’ of the land as well as other
‘duties’ (art 42).
Thus, in relation to perpetual land right the Land Code seems to encourage their translation into right of
ownership, although the number provisions of Land Code seem to duplicate the provisions of Civil
Code. In the same time, the concept of ownership in land in the Land Code is not only limited by
‘positively’ defined rights but also by ‘positive’ ‘responsibilities’, in the market contrast with the prerevolutionary civil law.
Conclusion
The 1994 Civil Code re-introduced ‘absolute’ concept of ownership (with limitations imposed with
respect to ownership of land by environment consideration and rights of others), however it also retained
from the Soviet law several perpetual rights which do not fit well with the modern ‘unitary’ concept
of ownership. These perpetual proprietary rights are vestiges of the Soviet civil law system. The Soviet
civil law, conditioned by the exclusive state ownership of land as well as the unitary state ownership in
relation to all state assets, including state enterprises, paradoxically created a new reality of pervasive
‘split’ ownership. While under the Soviet law, such indeterminate proprietary rights were inevitable,
there are no compelling reasons for their existence in the post-Soviet civil law… However traumatic
was Soviet experience and however imbedded is its legacy, the Russian civil law tradition was not
formed in the Soviet times, but well preceded it. The significant academic interest in the prerevolutionary civil law is a reflection of the growing understanding that the Russian civil law tradition
should be seen (and judged) in its entirety. It is vital to preserve the integrity of this tradition. The
corner-stone of the Russian civil law tradition is the concept of unitary ownership, which yet waited to
be re-established in the modern Russian civil law.
65
Besides, as Syrodoev noted, the list of obligations of land-owners and land users - non-owners (art 42) do not apply to
the state or municipal owners (in contradiction of art 8 of the Constitution guaranteeing the equality of private and state
ownership.