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concept of legal objects of deduction, their kinds and classification

In domestic civil law there is a traditional point of view according to which as object of civil matter understand that, on what the given legal relation is directed. It is possible to allocate some approaches to term definition «object of legal relation».

The essence of one of approaches consists that as object of legal relation the thing or any subject consider.

So, according to R.O.Halfinoj, «the object is understood as real subjects of a material world, products of spiritual creativity in obektivirovannoj to the form» [67].

Supporters of other approach (for example, JU.K.Tolstoy, A.P.Sergey) recognise that civil matter, being the public relations established between people as a result of their interaction, can influence only behaviour of the person. Therefore, as they believe, as object of civil matter the behaviour of its subjects directed on a various sorts material and the intangible benefits [68 [69] [70] acts.

In this question it is necessary to agree with E.A.Sukhanov's point of view which considers, that «as object of civil matters, and, hence, rights and the duties entering into its maintenance, activity (behaviour) of subjects of legal relation is. However in the scientific and educational literature owing to the traditions which have developed under the influence of legislative axioms (see, for example, item 128 GK), object of legal relation admits a subject of activity of subjects of civil matter» more often. And further the author continues: «Objects of civil matters are various material (including material) and the non-material (ideal) blessings or process their creations constituting a subject of activity of subjects of civil law».

According to item 128 GK the Russian Federations, to objects of the civil rights concern things, including cash and documentary securities, other property, including non-cash money resources, paperless securities, property rights; results of works and rendering of services;

Protected results of intellectual activity and the means of an individualization equal to them (intellectual property); the intangible benefits.

As a whole these objects can be subdivided on two groups — material benefits and the intangible benefits.

Thus not all from specified in item 128 GK the Russian Federations of objects can be deduction subjects.

If earlier in the project of the Civil code of 1905 it has been established, that deduction is come under «osoblivo a certain personal estate» by) (item 1642) and by that possibility to keep real estate now, according to the civil legislation, the thing (item 359 GK the Russian Federation) can be kept was excluded. Thus, the circle of subjects of deduction will be limited by one category — a thing. As is known, in the civil circulation things name «material benefits in their natural

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Condition or made by people ».

The legal relations developing concerning the legal object of deduction, are characterised by a number of obligatory signs. It is necessary, in particular, that the object of deduction answered following criteria:

— Had the material form;

— Belonged to the debtor;

— Was at the creditor legally.

The question on what things can be a deduction subject, is rather debatable, and in the legal literature it is possible to meet the various points of view.

Property rights and the intangible benefits cannot be a deduction subject, that basically does not cause disputes between jurists. [71]

Besides, it is necessary to exclude results of intellectual activity and the means of an individualization equal to them from a circle of objects of deduction (intellectual property). Owing to exclusive character of deduction of their things limited in a turn we also will carry to a category of the objects which are not a subject of deduction. «Legal relation on deduction of the things limited in a turn, is possible only between the subjects having a legal ground for their possession and concerning things,

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Appeared at them lawful by ».

To begin with we will consider disputable objects of deduction then we will stop on objects which enter into a circle of subjects of deduction, and objects which cannot be deduction subjects.

Money as a subject of the right of retention of property of the debtor According to one of legal doctrines absence in the legislation of any restrictions concerning a deduction subject means an admissibility of deduction of any thing, including money [72 [73] [74].

JU.K.Tolstoy and A.P.Sergey are supporters of that point of view, that deduction of money and securities probably, the truth, with the reservation: «Deduction of money probably only when the counter obligation of the debtor is not

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Monetary ».

B.M.Gongalo also considers, that money, and both cash, and non-cash, is admissible to keep. In its opinion, «the subject of the enterprise activity, obliged to pay cash money resources under the contract of purchase with other same subject, has obviously the right to make deduction of corresponding sums of money in case of delay in performance of the obligations by the last under other contract.

Therefore in one cases money cannot be a deduction subject (this general rule; ch. 1 items 1 of item 359 GK), in others — to keep them it is quite admissible (an exception; ch. 2 items 1 of item 359 GK) »[75 [76] [77]. And further the author continues:« Proceeding from stated, it is possible to draw a conclusion that deduction of non-cash money can be made by the same rules (earlier stated), as cash

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Money resources ».

At first sight, B.M.Gongalo's position is represented quite proved. However it is difficult to agree with it, as the satisfaction of requirements of the creditor at the expense of a kept thing occurs by rules about pledge (item 360 GK the Russian Federation) according to which the collecting reference on kept property is carried out under the decree, and realisation of kept property, on which collecting is turned, carried out by sale from market places (item 349, 350 GK the Russian Federation), under the general rule. Meanwhile sale of money from market places is simply impossible. Besides, money cannot be a pledge subject.

So, in the circular from January, 15th, 1998 № 26 «the Review of practice of consideration of the disputes connected with application by arbitration courts of norms of the Civil code of the Russian Federation about pledge» has specified Presidium of the Supreme Arbitration Court of the Russian Federation, that «one of essential signs of the contract on the lien is possibility of realisation of a subject of pledge. Proceeding from the nature of" non-cash money », they cannot be transferred as a deposit by the rules regulating pledge of things» (item 3).

If the obligation of the debtor has monetary character in this case it is supposed to make offset of counter homogeneous requirements; for offset there is enough statement of one party (item 410 GK the Russian Federation).

At the same time deduction of money can have character of counter default of obligations (refusal or a suspension), not being deduction on sense of item 359 GK the Russian Federation. As deduction by the creditor of the money which is coming under to transfer to the debtor, i.e. non-payment to the last mark M.I.Braginsky and V.V. Vitrjansky, «, can take place as actions of the subject of counter-execution of the obligation in reply to non-presentation by the counterpart of the execution caused by this obligation under the reciprocal contract (item 328 GK), however similar actions of the creditor are not realisation of the right of retention in sense of item 359 GK» [78 [79] [80] [81].

Considering told above, it is possible to draw the following conclusion: money resources, no less than paperless securities, should not be a deduction subject. However documentary securities can act as a deduction subject.

For example, according to S.V.Sarbasha, «if deduction of securities does not cause serious objections (having in view of only« documentary »securities) application of deduction concerning money is hardly admissible».

E.A.Sukhanov considers, that documentary securities can be

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Deduction subject, no less than a foreign currency.

The real thing as a subject of the right of retention of property of the debtor

It is necessary to note, what not all scientists converge in a common opinion concerning possibility to keep real estate.

B.M.Gongalo believes, that «as the law does not contain restrictions concerning possibility of deduction of the real estate so far as it should be supposed in accordance with general practice».

The same thought is stated by E.A.Sukhanov who writes, that «real thing deduction (for example, the leased building) is not excluded, and the right of its deduction arises irrespective of its state registration».

To similar opinion adhere N.V. The southerner and V.A.Rybakov: «deduction Application to the real estate is possible owing to the existing legislation and the state registration of such transaction it is not required. We consider to the full possible application of deduction both to chose transitories, and to immovable, and any legislative amendments to this aspect it is not necessary, on the contrary, the legislative amendment to item 359 GK the Russian Federation deduction only a personal estate would create weight of contradictions».

As marks S.V.Sarbash, «it is necessary to recognise, that deduction immovable

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It is not forbidden to a thing by the law ».

At the same time M.I.Braginsky and V.V. Vitrjansky have the opposite point of view and approve the following: «At the same time realisation by the creditor of the right of retention with the subsequent reference of collecting on kept property represents the civil-law transaction. Transactions with the earth and other real estate come under to obligatory state registration (item 164 GK) that contradicts a being of the legal relations arising at realisation by the creditor of the right of retention of property. And item 131 GK, and also other laws do not include the right of retention in the list of encumbrances of real estate, subjects of the state registration. In our opinion, the stated circumstances do not allow to include in a circle of things which can serve as a deduction subject, [82 [83] [84]

Real estate »[85].

However by consideration of a question on the nature of the right of retention the author of the present dissertational research makes the conclusion that deduction is not the transaction, and way of maintenance of execution of obligations which is expressed in a legal act as the unilateral action directed on protection of broken rights. Hence, the argument of scientists based on a recognition of deduction by the transaction and stated in a substantiation of an exception of real things from a circle of objects of deduction, it is impossible to recognise true.

On the basis of told above there is a following conclusion: the real thing can be a subject of deduction irrespective of the state registration of the rights to it.

Certainly, certain complexity is caused by ambiguous, inconsistent and not numerous judiciary practice on a case in point. However there are judicial certificates in which possibility of deduction of the real thing not only is not denied, and it is directly supposed.

So, in the definition from March, 3rd, 2016 № 309-es15-13936 on business № А71-10520/2014 about collecting of losses for the executed civil work the Supreme Court of the Russian Federation has specified, that according to item 6 of the decision of Plenum of the Supreme Arbitration Court of the Russian Federation from July, 11th, 2011 № 54 «at the resolution of disputes, following of contracts on creation of the future thing, it is necessary for vessels to consider, that, on the basis of Civil code article 219, the property right to a building or a construction created under the contract, arises at the party which have given the ground area (builder), from the moment of the state registration of the granted right in EGRP. The party which has carried out building, has the right to payment of the executed works according to the contract, and at default by the party which has given the ground area, a duty on their payment can demand from it compensation of the caused losses, payment of the penalty provided by the contract, and also to take advantage of the right given to it by article 712 of the Civil code »[86 [87] [88].

It is necessary to pay attention on provided in legal systems of other countries possibility of deduction of real estate. The given question is in detail investigated by S.V.Sarbashem. According to the dear scientist-lawyer, there are legal systems in which real estate deduction is possible: it first of all «concerns the general law countries. However and in the continental law, the truth rather recently, has appeared legislative possibility to real estate deduction. The new Civil code of the Netherlands allows the tenant to keep the real estate occupied with it in case of nonpayment by the proprietor due in certain cases to the tenant of compensation (item 100 kn. 5 Civil codes of the Netherlands). The given norm has generated many problems in the civil

The right of Holland, also discussions about introduction of registration of this right are now led

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The tenant ».

The things defined by generic characteristics, as a subject of the right of retention of property of the debtor

E.A.Sukhanov notices, that «as a subject of the right of retention can serve both specific things, and the things possessing generic characteristics (for example, at deposit for exoneration of things)».

M.I.Braginsky and V.V. Vitrjansky, on the contrary, believe, that «owing to their interchangeability, such things (possessing generic characteristics. — JU.R.) cannot be defined as« a thing which is coming under to transfer to the debtor »as that demands item 1 of item 359 GK. Though at an appropriate individualization of such property (for example, 50 tons of gasoline in certain tank N...) it can serve

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Subject of deduction from the creditor ».

S.V.Sarbash, giving reason for the position, specifies, that «as the right of retention as the right is applied concerning the property of other person, and the property right can extend only on individually certain things also deduction extends

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Also on individually certain things ».

However such position is represented to us not quite proved. In this case it is important, that specific or generic — in it there is no difference — the thing was the property of the debtor and could serve as way of maintenance of execution by the debtor of the obligation.

Thus, things, both defined by generic characteristics, and specific, can constitute a subject of the right of retention. The things belonging to the creditor

At the answer to a question on, whether probably to keep «the thing», the majority of scientists agree in opinion, believing, that own thing to keep it is impossible.

E.A.Sukhanov underlines, that «own thing retentora, coming under to transfer to the debtor (for example, a thing belonging to the seller, in case of the delay of payment admitted by the buyer of a thing) as absurdly assumption, that the proprietor of a thing should receive satisfaction of the monetary requirements at the expense of the cost cannot be object of deduction

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Things ».

The given position other scientists (for example adhere also, to S.V.Sarbash [89] [90] [91] [92], T.V.Bogachyov [93]). With their sensible arguments difficult not

To agree.

On the contrary, B.M.Gongalo approves, that «the thing which is coming under to transfer to the debtor or the person, to it specified can be a deduction subject. Thus has no value, whether is the debtor the proprietor of the given thing, the owner of the right of economic conducting, etc., or its right to demand transfer is based on other bases» 94 [94] [95].

The similar position has been expressed by the Supreme Arbitration Court of the Russian Federation: «On sense of article 359 of the Civil code of the Russian Federation the thing belonging on any right can be a deduction subject only

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To the debtor, that is another's thing for the creditor ».

Thus, own thing of the creditor cannot represent itself as a deduction subject.

Having considered disputable legal objects of deduction, we will pass to definition of possible subjects of the right of retention.

So, as deduction subjects cannot serve:

Property rights;

Results of intellectual activity and the means of an individualization equal to them (intellectual property);

The intangible benefits;

The things limited in a turn;

Money — both cash, and non-cash;

Paperless securities;

Own things of the creditor.

On the contrary, as a subject of the right of retention the things belonging to the debtor (except for money, paperless securities, and also the things limited in a turn), including documentary securities, and also real things can act.

The establishment of a circle of legal objects of deduction allows us to pass to consideration of concrete objects which probably to keep in contract relations. In this case the creditor will be the contractor, and the debtor, accordingly, the customer. The right of the contractor to deduction is provided item 712 GK the Russian Federation. Proceeding from literal perusal of given article GK the Russian Federations, a deduction subject can be both result of works, and belonging to the customer the equipment, the thing transferred for processing (processing), the rests of not used material and other property which has appeared at the contractor of the customer.

Leaning against deduction inherent in object certain signs (the object necessarily should have the material form belong to the customer get to the contractor legally), we will consider one after another all objects of deduction specified in item 712 GK the Russian Federation.

Schematically objects of deduction in contract relations are presented in the appendix to the given dissertational work.

The equipment of the customer. At performance of contract works the equipment of the customer can appear at the contractor in several cases.

In the first case the customer transfers the equipment to the contractor for its use in the course of performance for it works. For example, the customer hires the contractor for building of distributive transformer substation. The constructed substation representing a construction in which the electrotechnical equipment settles down will be result of such works. Thus the transformers which are a part of the electrotechnical equipment, the customer buys independently and transfers to the contractor in installation.

In the second case the customer can transfer to the contractor the equipment for performance of contract works. For example, the customer gives to the contractor in time using a dredge with which help the contractor performs works on road building.

In practice there are examples of deduction of similar objects. So, in one of cases the customer has transferred to the contractor in gratuitous target time using the equipment serving for manufacture cash boksov and other trading equipment. In connection with occurrence at the customer of debts against the contractor last has kept the equipment of the customer, as was the basis for the reference of the customer in court.

As it is specified in definition of the Supreme Arbitration Court of the Russian Federation from January, 24th, 2011 № ВАС-18406/10 on business № А36-1/2010, «dismissing an argument of the applicant that the equipment was kept by it on the bases provided by article 359 of the Civil code of the Russian Federation, the court of court of cassation has come to conclusion, that such deduction is possible and lawful, as Open Company" ИнтерТрейдШоп "had debts on payment of the executed works before the contractor. However, first, vessels the established fact of deduction of the property, which cost essentially exceeds the size of a debt, secondly, the respondent has not addressed with the claim about the collecting reference on kept property as article 360 of the Civil code of the Russian Federation».

The resulted example allows to draw the following conclusion: the court does not challenge possibility of deduction of the transferred equipment, but thus specifies that should be observed harmony of cost of kept property to infringement and the legal process of the reference of collecting on kept property.

Davalchesky materials of the customer. According to the general rule, work is carried out by expense of the contractor — from its materials, its forces and means (item 1 of item 704 GK the Russian Federation). However the resulted norm clauses: «if other is not provided by the turnkey contract». [96]

The similar situation develops with building podrjadom where the duty on maintenance of building with materials, including details and designs, or the equipment is born by the contractor if by the contract building podrjada it is not provided, that building maintenance in whole or in a certain part the customer (carries out item 1 of item 745 GK the Russian Federation).

Hence, the turnkey contract, including building podrjada, can be provided, that maintenance with materials in whole or in a certain part is carried out by the customer. Given by the customer and accepted by the organisation from the customer materials name davalcheskimi materials.

As the Russian Federation follows from position of item 712 GK, a deduction subject the rests not used davalcheskih materials can be.

The thing transferred for processing (processing). At first sight, the given category of objects inherently as though duplicates the previous category. Even in some standard documents these concepts are used as synonyms. For example, according to item 156 of the order of the Ministry of Finance of Russia from December, 28th, 2001 № 119н «About the statement of Methodical instructions on book keeping of is material-industrial stocks», davalcheskie materials are the materials accepted by the organisation from the customer for processing (processing), performance of other works or manufacturing of production without payment of cost of the accepted materials and with the obligation of full returning of the processed (processed) materials, delivery of the executed works and made production.

Despite it, the specified categories nevertheless have some distinctions, therefore they are carried to different kinds of objects of deduction.

According to item 1 of item 703 GK the Russian Federation the turnkey contract consists on: 1) manufacturing of a new thing; 2) processing (processing) of a thing; 3) performance [97]

Other work with transfer of its result to the customer.

In item 712 GK the Russian Federations as objects of deduction are separately allocated belonging to the customer the rest of not used material and the thing transferred for processing (processing).

According to E.A.Sukhanov, as a turnkey contract subject act: «at manufacturing — specific things, and at processing (processing) or performance of other work — concrete substantiated

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Result concerning specific things ».

Thus, the thing transferred in processing (processing) is initially specific whereas davalcheskie materials can have patrimonial character and be only the raw materials necessary for creation of a specific thing.

According to item 712 GK the Russian Federation a deduction subject will be the thing transferred for processing (processing).

Other property (material objects), belonging to the customer. The legislation supposes deduction of any other thing which belonging to the customer and have appeared in possession at the contractor on lawful basises. An exception constitute: money; paperless securities; the things limited in a turn; own things of the creditor.

In this case with thing deduction requirements, though and not connected with its payment or compensation of costs on it and other losses, but arisen of the obligation which parties operate as businessmen (item 1 of item 359 GK the Russian Federation) can be provided also.

Result of contract works which can represent movable or the real thing.

The chose transitory is specified in the list of objects of deduction as a thing transferred to the contractor for processing (processing). But the thing transferred for [98] processings (processing), not always becomes result of works. However it does not mean, that it cannot represent itself as object of deduction. In turn, chose transitory manufacturing is not limited to use of the materials which are not belonging to the contractor, whether it be davalcheskie materials or the thing transferred for processing (processing) as the contractor at performance of works own materials can be used. In this case the thing transferred for processing (processing), can become object of deduction before performance of works therefore as after performance of works by object of deduction the result of works will already be.

And still the chose transitory as object of deduction does not cause disputes, no less than the kinds of objects of deduction specified above in contract relations that it is impossible to tell about the real thing. Real thing reference to object of deduction — the most problem and debatable question. But we recognise that the real thing can and should admit and act as object of deduction.

According to item 1 of item 130 GK the Russian Federation to real things (the real estate, the real estate) concern the ground areas, sites of bowels and everything, that is strongly connected with the earth, i.e. The objects, which moving without a disproportionate damage it is impossible for their appointment, including buildings, constructions, objects of not complete building.

However, as considers K.A.Novikov, strong communication with the earth is not the main criterion of definition of such object the real estate, and impossibility of moving of object without a disproportionate damage to its appointment as the sign of communication of object with the earth, in its opinion, is not suitable in practice. In this connection the scientist formulates definition according to which «under real estate it is necessary to understand such material objects, physical and which legal characteristics assume their invariable finding on that ground area where these objects are located

The nature or the person »[99].

According to the developed judiciary practice «for a property recognition immovable it is necessary to present proofs of its erection in statutory and other normative acts an order on the ground area given for building of object of the real estate, with reception of the allowing documentation with observance of town-planning norms and rules» [100].

Object erection is reached during realisation of the contract building podrjada if only the object is not under construction the customer independently, own forces and means.

In turn, the result of civil work (real thing) meets in two various kinds: again erected and reconstructed object of the real estate.

Thus both again erected, and the reconstructed real thing can be object both finished, and not complete building.

The results of civil work which are, as a matter of fact, a subject of the present research, will be considered more low in more details.

The carried out analysis of concept, kinds of objects of deduction and their classification allows us to come to following conclusions:

1. The object of deduction under the contract building podrjada is characterised, in particular, by following signs:

— Has objectively expressed material form;

— It is created on the instructions of the customer;

— It is not paid by the customer;

— Belongs under the contract to the customer.

Proceeding from the specified signs, it is possible to make following definition of the legal object of deduction: it is a thing on which on neperedache it action of the creditor is directed to possession to the debtor (not owning proprietor) or the person specified by the debtor or on its encumbrance which consists in restriction of the right of use by a thing for the purpose of protection of the broken material rights.

2. As a deduction subject cannot act:

Property rights;

Results of intellectual activity and the means of an individualization equal to them (intellectual property);

The intangible benefits;

The things limited in a turn;

Money (both cash bank notes, and non-cash money resources);

Paperless securities; own things of the creditor.

The question connected with deduction of money, is debatable. For example, B.M.Gongalo, and also JU.K.Tolstoy and A.P.Sergey believe, that money can be a deduction subject. However it is impossible to agree with them for following reasons.

First, the satisfaction of requirements of the creditor is carried out by sale of kept property from market places (item 349, 350 GK the Russian Federation), i.e. Under the general rule. Meanwhile sale of money from market places is simply impossible. Besides, money cannot be a subject of pledge [101 [102] [103].

Secondly, if the obligation of the debtor has monetary character in this case the law supposes to make offset of counter homogeneous requirements.

Thirdly, deduction of money can have character of counter default of obligations (refusal or a suspension), not being as mark M.I.Braginsky and V.V. Vitrjansky, deduction on sense of item 359 GK the Russian Federation [104].

The majority of scientists agree in opinion, that it is impossible to keep own thing.

Deduction by the creditor of own thing is, probably, stay of execution of the obligation or refusal of obligation execution, but not deduction in that sense which is given to this concept of item 359, 360, 712 GK the Russian Federation (as to a way of maintenance of execution of obligations).

3. As a subject of the right of retention the things belonging to the debtor, including documentary securities, and also real things can act. The exception is constituted by money, paperless securities, and also the things limited in a turn.

4. Objects of deduction in contract relations are expedient for dividing on two groups: the things belonging to the customer, and result of works.

The first group includes the objects belonging to the customer: the equipment; davalcheskie materials; the thing transferred for processing (processing); other property (material objects).

The second group of objects of deduction concern movable and the real things which have resulted performance of works.

By objects of the right of the contractor on deduction of result of civil work three kinds of things can be recognised:

— Completely constructed or reconstructed building and a construction;

— Object of not complete building;

— The executive documentation made by the contractor on object of building.

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A source: GUMBATOVA JULIA NIKOLAEVNA. the Right of the contractor for deduction of result of civil work. The DISSERTATION On competition of a scientific degree of the master of laws. Moscow — 2018. 2018

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