This article is devoted to the inheritance of extortionate property. The author of this article paid special attention to the problems of inheritance of extortionate property. Also, the author considers the grounds for recognizing the property as extortionate.
Keywords: will, institute of inheritance, heir, property, inheritance, testator, inheritance law, extortionate property.
Данная статья посвящена наследованию выморочного имущества. Автор этой статьи уделил особое внимание проблемам наследования выморочного имущества. Также автор рассматривает основания для признания имущества выморочным.
Ключевые слова: завещание, институт наследования, наследник, имущество, наследование, наследодатель, наследственное право, выморочное имущество.
In the Russian Federation, the regulation of inheritance of extortionate property is carried out in accordance with Article 1151 of the Civil Code of the Russian Federation (hereinafter — the Civil Code of the Russian Federation) [2], it also fixes the main provisions concerning the essence of inheritance by the state under the law of extortionate property and some of its features.
According to Article 1151 of the Civil Code of the Russian Federation, the grounds for recognizing property as extortionate are: absence of heirs by law and by will; none of the heirs has the right to inherit, or all heirs are excluded from inheritance, that is, within the meaning of Article 1117 of the Civil Code of the Russian Federation, the heirs are unworthy; none of the heirs accepted the inheritance; all heirs refused the inheritance, and at the same time, none of them indicated that they refused in favor of another heir — Article 1158 of the Civil Code of the Russian Federation.
Accordingly, in the presence of at least one of these grounds, the testator's property is recognized as extortionate and enters into the ownership of a public legal entity in the order of inheritance by law.
If a dwelling is extortionate; a land plot, as well as buildings, structures, other objects of immovable property located on it, a share in the right of common shared ownership of these objects, then such property becomes municipal property.
An exception is made if «this property is located on the territory of cities of federal significance, the property is transferred to the ownership of the relevant subject of the Russian Federation. Other extortionate property becomes the property of the Russian Federation» [1, p. 85].
In addition to the Civil Code of the Russian Federation among the special by-laws, it is necessary, first of all, to specify the Regulation on the procedure for accounting, evaluation and sale of extortionate property, approved by the Resolution of the Council of Ministers of the USSR dated 06/29/1984 No. 683 [9]. There are also modern by-laws of the Russian Federation, for example, Decree of the Government of the Russian Federation No. 260 dated 04/19/2002 «On the sale of seized, confiscated and other property turned into state property» [8]. However, the application of these acts to settle the issue of the extortionate property is unreasonable, since they regulate the procedure for accounting, evaluation and sale of extortionate property by the tax authorities. But in accordance with the Decree of the Government of the Russian Federation dated 05.06.2008 No. 432 «On the Federal Agency for the Management of State Property», the functions of accepting and managing extortionate property are carried out by the Federal Agency for the Management of State Property (Rosimushchestvo) [7].
Therefore, it is more appropriate to refer to paragraph 1 of Chapter 1 of Section IX of the Methodological Recommendations on the Registration of Inheritance Rights approved by the decision of the FNP Board of 27–28.02.2007 (Protocol No. 02/07) [6], according to which the certificate of inheritance is a public document confirming the right to the hereditary property specified in it. A certificate is issued upon the application of the heir at the place of opening the inheritance by a notary or an official authorized in accordance with the law to perform such a notarial action. In the same order, a certificate is issued when the property is inherited by the Russian Federation.
Despite all these numerous by-laws and the existence of a corresponding article in the Civil Code of the Russian Federation, «for many years there has been a scientific discussion about the expediency of adopting a special Federal law for the most complete and effective regulation of this phenomenon in inheritance. Many researchers of inheritance law have noted the vital necessity of this action for a long time» [4, p. 130].
A particularly urgent problem is the problem of regulating the collection of debts by creditors of the testator from the state as an heir by law. It should be noted that «the state does not need to receive a certificate of inheritance and other documents, as ordinary heirs by law or by will. But at the same time, the objects of inheritance become his actual property. It is logical to assume that the testator's obligations that are not related to personal ones, for example, alimony, should also pass to him. But in practice, debt collection by creditors from the state is often quite problematic» [5, p. 28].
Some researchers propose to settle this issue in a special law. The need for the adoption of a single federal law is often such that municipalities that inherit the bulk of inherited property, even though there are eight queues of heirs, in some cases even adopt their own by-laws concerning the regulation of inheritance by the state of extortionate property in a given territory. For example, you can try to classify the Resolution of the city administration approved on January 23, 2013 as such. Kstovo of the Kstovsky district of the Nizhny Novgorod region No. 1 − The Resolution approved the «Regulation on the procedure for accepting and accounting for extortionate property in the form of residential premises (a share of residential premises), which is transferred by inheritance by law to the municipal property of the city of Kstovo of the Kstovsky district of the Nizhny Novgorod region». This document establishes both the terms and procedure for the acceptance of extortionate property by this municipality, as well as the procedure for its identification and registration.
In no case should local municipal law−making be considered a negative phenomenon — even after the relevant Federal Law «On Extortionate Property», it should be improved and expanded.
At the same time, D. A. Dychakovsky notes that «after the adoption of such a hypothetical law, the differences between the acts of such municipalities will disappear, since they do not rely on the federal law as a single model and may not correspond, and sometimes even contradict each other» [3, p. 170].
Thus, the most urgent problem of legislative regulation of inheritance by the state and municipalities of extortionate property today is the discussion and elaboration by researchers and practitioners of the draft Federal Law «On Extortionate Property», which would substantially and in detail regulate the order of inheritance, assessment and accounting of extortionate property. Its adoption will be able to bring into compliance and uniformity all legislation on selective property for many years.
Also, at present there is no special law defining the procedure for inheritance of extortionate property that passes into the ownership of the Russian Federation in the order of inheritance by law, as well as the procedure for transferring it to the ownership of subjects of the Russian Federation or to the ownership of municipalities. In this regard, the inheritance of extortionate property is carried out in accordance with the general rules on inheritance established by civil legislation.
Disputes related to the inheritance of extortionate property take place both due to the incompleteness of the legislative regulation of the order of inheritance and accounting of extortionate property, and due to the ambiguity of some grounds for recognizing the property as extortionate. Meanwhile, it should be noted that the judicial practice formed on this issue allows, in the presence of reliable and complete evidence in the case, to protect the rights of heirs. In cases where the property is still extortionate, the court stands up for the protection of public law education.
Examining the materials of judicial practice on unworthy heirs, it was revealed that the courts recognize someone as unworthy heirs only in cases where there is direct incriminating evidence of this. In a number of other doubtful cases, the plaintiffs were denied. An example of such cases is the Decision in Case No. 2–6342/2016. On the basis of paragraph 1 of Article 177 of the Civil Code of the Russian Federation, the court recognized the gift agreement as an invalid transaction. The above evidence presented to the court by the plaintiff does not confirm the plaintiff's arguments about the unworthy, intentional and illegal behavior of G. G. Nurieva. and R. G. Samigullina, as heirs of the deceased FIO1. Thus, they are the heirs of the first stage and inherit the property in the general order [10].
Thus, the analysis of judicial practice shows that issues related to the acceptance of inheritance by law often cause difficulties, it is quite difficult for a law enforcement officer. The courts interpret the transfer of rights to hereditary property in different ways, if actual actions were taken to accept the inheritance; the rights of the surviving spouse after the court decision on the dissolution of marriage; issues related to extortionate property.
References:
- Glinko A. V. The problem of legislative regulation of inheritance of extortionate property // Innovative development of modern science: problems, patterns, prospects: collection of articles by the winners of the international scientific and practical conference. — Penza. 2017. — pp. 84–88.
- The Civil Code of the Russian Federation (part three) of 26.11.2001 N 146-FZ (ed. of 01.07.2021) // The Assembly of Legislation of the Russian Federation, 03.12.2001, N 49, art. 4552.
- Dychakovsky D. A. Actual problems of regulation of inheritance by the state of extortionate property // Fundamental problems of science: collection of articles of the International scientific and practical conference: in 4 parts. — Ufa. 2017. — pp. 169–171.
- Zakirov R.Yu., Inheritance law: textbook / R.Yu. Zakirov, Ya. S. Grishina, M. M. Makhmutova. — Moscow: Dashkov and Co., 2009. — 287 p.
- Kozhevina E. V. The responsibility of the state for the debts of the testator in the inheritance of extortionate property // Family and housing law. — M.: Lawyer, 2011, No. 4. — pp. 28–30.
- Methodological recommendations on registration of inheritance rights: approved. By the decision of the FNP Board of February 27–28, 2007, Protocol No. 02/07 // Notary Bulletin. 2007. No. 8.
- Resolution of the Government of the Russian Federation No. 432 of June 05, 2008 (as amended. dated 15.11.2017) «On the Federal Agency for State Property Management» // Collection of Legislation of the Russian Federation. 2008. No. 23. Article 2721.
- Decree of the Government of the Russian Federation No. 260 of April 19, 2002 (as amended. dated 15.09.2008) «On the sale of seized property, sale, processing (disposal), destruction of confiscated and other property turned into state property» // Collection of Legislation of the Russian Federation», 29.04.2002, N 17, art. 1677.
- Resolution of the Council of Ministers of the USSR of June 29, 1984 No. 683 (as amended. dated 25.07.1991) «On approval of the Regulations on the procedure for accounting, evaluation and sale of confiscated, ownerless property, property transferred by right of inheritance to the state, and treasures» // SP USSR. 1984. No. 24. St. 127.
- The decision of the Beloretsk City Court of the Republic of Bashkortostan dated 17.01.2017 in case No. 2–6342/2016/ website Judicial and regulatory acts of the Russian Federation. [electronic resource]. — Access mode: — http://www.samosud.ru /regular/doc/sLLmzImfrJ6V/
