The article is devoted to such a category of claim as vindication. The paper discusses the concept of vindication, its historical origin and application in Russian law, in particular the conditions for its filing.
Keywords: property, vindication claim, property, vindication, owner, bona fide purchaser, disputed item, ownership right.
Статья посвящена такой категории иска, как виндикационный. В работе рассматривается понятие виндикации, его историческое происхождение и применение в российском законодательстве, в частности условия для его подачи.
Ключевые слова: имущество, виндикационный иск, собственность, виндикация, владелец, добросовестный приобретатель, спорная вещь, право собственности.
Nowadays there are a large number of categories of claims by which a person can protect his violated rights. One of the significant categories is a vindication claim, which, in the understanding of the Russian legislator, means the recovery of property from someone else's illegal possession. In fact, the vindication claim is borrowed from Roman law. Literally translated from Latin, it means «I announce the use of force». It is logical that with the emergence of the right to private property, the Roman Empire faced the question of its protection. Vindication was one of such tools. The meaning of vindication was and remains to take away from the non-owner who illegally owns a thing, and transfer this thing to the ownership of its rightful owner.
Vindication is firmly entrenched in Russian legislation, and is reflected in Article 301 of the Civil Code of the Russian Federation, which essentially gives the owner the right to reclaim his property from someone else's illegal possession. This category of claim is by far the most common when choosing a way to protect your property [1].
The purpose of the vindication requirement is the termination of the defendant's illegal possession of a certain thing and the restoration of the plaintiff's rights to unhindered possession, use and disposal of this thing (seizure of the thing from the defendant and its transfer to the plaintiff).
Now consider the procedure for filing a vindication claim, which has some peculiarities.
The plaintiff in this category of cases is a person, whether natural or legal, who for some reason has lost possession of the thing.
In Decree of the Plenum of the Supreme Court of the Russian Federation N 10/22 “On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights”, a person who has filed a lawsuit with a claim for the recovery of his property from someone else’s illegal possession must prove its ownership of property owned by the defendant [2].
The defendant in a vindication claim is a person due to whom the property was removed from the possession of its rightful owner, that is, who actually owns the property at the time of filing the statement of claim without legal reasons. A feature of this claim is the fact that it is possible to demand the return of one’s property that has illegally left the possession of the legal owner only from the person who actually possesses it, that is, in the case of transfer of property to one person who illegally disposed of it in favor of a third party, the requirement for return such property must be sent to a third party.
Article 302 of the Civil Code of the Russian Federation introduces such a concept as a «bona fide purchaser», that is, a person who did not know and could not know that he was acquiring a thing not from the rightful owner. In practice, the chances of recognizing oneself as a bona fide purchaser tend to zero, since the standard of proof for acquiring such a status is elevated and the courts in most cases take the side of the rightful owner and demand property from the defendant [1].
Despite the judicial practice, the Resolution of the Armed Forces of the Russian Federation of June 23, 2015 N 25 “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” nevertheless provides for a presumption of good faith, that is, recognition of the acquirer as bona fide exactly until such time as it is proved otherwise [3].
The filing of a vindication claim is possible only if there are a combination of the following conditions:
1) A person who filed a vindication claim with a court must have the right of ownership or other real right to property.
2) A vindication claim cannot be brought against the defendant if the property is not in kind. For example, if a thing was destroyed for any reason, in particular as a result of force majeure, the plaintiff's claims will be denied;
3) One of the mandatory conditions for considering a claim is the fact that the owner has lost physical possession of the thing;
4) a vindication claim is exclusively of a proprietary nature and is not considered by the court in the event that an obligation relationship has developed between the parties. This was also pointed out by the Supreme Court of the Russian Federation. In the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated April 29, 2010 “On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights”, he indicated that in cases where between persons there are no contractual relations or relations related to the consequences of the invalidity of the transaction, the dispute on the return of property to the owner is subject to resolution according to the rules of Art. Art. 301, 302 of the Civil Code of the Russian Federation [2].
Based on the foregoing, the following conclusion can be drawn: in order to bring a vindication claim to the court, the following conditions must be observed: the plaintiff has the right of ownership or other real right to the disputed thing; the claim is made against a person whose property is actually in illegal possession; the claimed thing exists in kind at the time of presentation of the claim; loss by the plaintiff of the actual possession of the thing; the absence of binding legal relations or legal relations related to the consequences of the invalidity of the transaction.
References:
- The Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-FZ (as amended on December 29, 2020) (as amended and supplemented on August 6, 2021) [Electronic resource] // Reference legal system “Garant;
- Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated 04/29/2010 // ATP «ConsultantPlus»;
- Decree of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 N 25 “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation, N 8, August, 2015.
