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2.1. Features of legal regulation of inheritance of the property rights connected with enterprise activity in pre-revolutionary Russia

Formation of norms which can be carried to the law of succession occurs in a primitive-communal system where there was a property isolation of people on a breeding accessory. Relations at inheritance were regulated by patrimonial and breeding customs.

At this time the persons belonging to the given sort could be successors only, and the most valuable subjects came under to a burial place together with the died.

To the oldest of the domestic law monuments, reached up to now and containing rules about inheritance, is concluded the Kiev prince Oleg Dogovor with Byzantium (911). According to the named contract in case of death of Russian in territory of Byzantium, thus if it has not left testamentary disposition and has no relatives in Byzantium, its property came under to inheritance by relatives from Russia where should be delivered. However in the presence of testamentary disposition the property was transferred to the person specified at such order (constituted in an imperative order in writing). Thus, the given contract provided two ways of inheritance which are established and in the modern law of succession, - hereditary succession and testamentary succession [52].

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Regulation of hereditary legal relations in Ancient Russia during the period to «the Russian Truth» occurred on the basis of legal tradition of east Slavs. Dogovory Russia with Byzantium cannot be considered as the first monuments of the right by which the general order of inheritance of property as the orientation of their instructions on the limited circle of subjects does not give good causes for this purpose was defined.

Simultaneously with the Byzantian laws in Russia own rules of law regulating public relations taking into account features of Russian life began to be formed. In some modern researches scientists see the reason of this circumstance in persevering attempts of the ecclesiastical authority to introduce the alien norms of the Byzantian right mismatching Old Russian realities of a life [53].

Let's consider the points of view of scientists concerning a question of formation and development of the law of succession in Russia.

So Of this year Trifonov considers, that as an initial stage in development of is standard-legal regulation of inheritance in Russia the period of "the Russian Truth» (X-XIII) which instructions had been fixed that order of inheritance which existed at east Slavs according to their customs and the legal traditions, added with legislative activity of the princely power, judiciary practice and the reception of the Byzantian rules of law acts. Most

During this period hereditary succession [54] was extended.

The given statement will be adjusted with opinion Etc. Velikoklad which considers, that the first known mentions of ways of streamlining of relations of inheritance contain in a right monument - «the Russian truth» where a certain analogue of institute of testamentary succession represented inheritance «on a number» - to the contract in which will of the estate-leaver concerning section of its property has been expressed between

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Members of his family.

Analyzing the bases of inheritance operating in the Russian Truth, V.V. Guschin considers possible to specify in their following signs: members of a family of the estate-leaver could be called for inheritance only, thus the testamentary will of the person has been subordinated to such rule, that directly excluded possibility to transfer property according to testamentary disposition to the third parties; in case of absence at the estate-leaver of members of a family, the inheritance was transferred to the representative of the public power [55 [56].

With acceptance of the Code of laws of Ivan III (1497), Ivan's Code of laws IV (1550) and Cathedral ulozhenija (1649) the circle of the successors called for hereditary succession has been gradually expanded. Relatives concerned number of such successors on a lateral line to the fifth degree of kindred. Besides, to that period of development of the law of succession restriction of competences of the estate-leaver is characteristic. So, the interdiction of the free order has been entered by real estate which constituted the basic economic importance.

However at that stage it is possible to note granting bolshej freedom in drawing up of testamentary dispositions concerning other property: constitute the will any member of a family could.

It is interesting to notice, that the Pskov judgement reading and writing of 1467 also establishes two modes concerning the succession. The first mode concerns the inheritance passing as the will

("Mandative"), the second mode is established concerning the inheritance passing to successors on the basis of the law (in the absence of the will constituted in the established form) which is called "otmorshinoj". And each of them receives independent value that is shown in the rights and responsibility of the successors called for inheritance.

According to the Pskov judgement reading and writing the will called "rukopisaniem" or "porjanoj" without fail should be constituted in writing, thus came under to the state statement. The circle of successors by means of inclusion in it relatives of lateral lines of consanguinity («a near tribe»), and also ascendants, first of all, mother and the father has besides, extended. Mutual laws of succession concerning the husband and the wife are thus established, and the given rule is applied to any property [57].

The Earth (ground area) is not underlined as a part of the inheritance as during that historical period it did not constitute the legal object of a private property and could not pass by right of succession.

Cathedral ulozhenie has definitively entered enslaving of peasants 1649 and has simultaneously fixed hereditary (for feudal lords) and hereditary (for peasants) an attachment of peasants to the earth and the right of termless investigation of the fluent following from here. Along with other property it was authorised to hand down peasants.

O.J.Vinogradova, investigating features of formation and development of institute of hereditary legal relations of Russia, correctly considers, at that stage of development of the law of succession two bases of inheritance equally admitted: hereditary succession and testamentary succession. However the intention of the testator at will drawing up has been limited by operating class principles. So to bequeath it was possible only the bought ancestral lands, and patrimonial and, so-called, vysluzhennye an ancestral lands could be inherited by exclusively members of a family, accordingly passed to legal heirs. The widow of the died inherited only a property part - on "prozhitok" (estate for life), however it could be called for testamentary succession and in this case had the right to inherit the bought ancestral lands [58 [59] [60].

The essence of historical development of the Russian law of succession at the second stage of the development (XV - XVI centuries) G.F.Shershenevich sees in

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Expansion of a circle of the relatives called for inheritance. Sources do not limit the right of the inheritance to one descending line, and stretch them on all relatives of descending, lateral and ascending lines. It is not supposed distinctions also depending on a class accessory of the person. In this connection it is necessary to agree with Berezovskoj E.A. who considers, that in the specified sources of distinction between the inheritance bases (under the law and under the will) any more have only no external character. Any member of a family could make the will, but it is obligatory in writing [61].

I.A.Pokrovsk in the work «Basic problems of civil law», investigating development of norms of the laws regulating process of fulfilment of wills and testamentary succession, has noticed, that «... Freedom of agonal orders constitutes together with freedom of the property and freedom of contracts one of corner stones of a modern civil system. In long historical process the individual will has made the way through a difficult network every possible stesneny and has occupied essentially solving position» [62].

The period of reign of Peter I which was characterised socially - economic transformations to Russia became a following stage in formation of inheritance of property rights. Before carrying out of economic reforms, the economy of Russia differed mainly a subsistence economy, industry level remained not developed, and the government system was represented enough bulky. At carrying out of the reforms Peter I basically leant on pomestnoe nobility which supported a course on absolute monarchy strengthening. As a result economically to support nobility Peter I on March, 23rd, 1714 the Decree about an inheritance order in movable and immovable imushchestvah has been accepted. The given Decree could be called the Decree about a male entail.

On the basis of positions of the named certificate all succession was transferred to one son. It is necessary to notice, that norms of the Decree concerned not only noblemen, and extended on all citizens of the state, including merchants, and also the persons having one court yard. The considered document has established a uniform legal regime concerning estates and an ancestral lands, having equalised and having consolidated them in a uniform category of real things to which court yard and benches have been carried also. Thus proprietors of real estate had no legitimate right to dispose of it under own discretion, the interdiction for its sale, transfer to pledge or donation [63] has been established.

Since 1721 besides noblemen buy and sell serfs the merchants, rich townspeople from among handicraftsmen could. However such peasants could not be bought to (sell) separately as they were a part of the enterprise and constituted with it a single whole [64]. Besides, at that stage continued to develop and absent-minded manufactories which arose on the basis of the merchant capital and adhered house country manufacture to the commercial and industrial capital.

The Decree edition about a male entail supposed to reach two purposes: «first, younger sons of the died nobleman, being disinherited,

Should extract means of subsistence on civil or military service owing to what the government received shots necessary for it from noblemen. Secondly, crushing of ground possession of the noblemen, not favourable to the state »[65 [66] was eliminated.

The rules which have collected during the long period about inheritance have been subjected in 1832-1833 of ordering in the Code of laws of Russian empire and have existed in such kind with little changes till 1917 In 1833 the basic source of the law of succession there is a part 1 t. 5 Codes of laws of Russian empire in which main principles and inheritance conditions have been allocated.

It is necessary to notice, that in the Russian legislation of that and the subsequent periods the modern word-combination «a property complex» as sets of material and non-material elements was not used. First of all, it has been caused by division of property on cash and debt (ch. 1 t. X Code of laws of Russian empire). Thus "property" were defined as cash in the event that they were «... Are transferred the person, are hardened or by him are made and houses, capitals, things, etc. In turn,« the property, belonging to the person under bills, extra letters and other obligations, the property, consisting in debts on other persons »consist behind it», i.e. the earth,

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Were defined as debt.

Operating at that stage in Russian empire the civil legislation provided reception of the property right to property as testamentary succession (item 1010 item - 1103 Codes of laws civil) [67] and under the law (item 1104 item - 1221 Codes of laws civil) [68].

According to item 1010 t. H Ч.1 the Code of laws the will is the lawful announcement of will of the owner of its property on his death case. Such formulation established accurate connection between death of the legator and the introduction of the successor into the rights rather zaveshchannogo property by which were meant as actually property, and property rights which owner the estate-leaver was during lifetime. However, during the considered period, the heir by devise could inherit and after postrizhenija the legator in a monkhood.

The sense of presence of possibility of drawing up of the will consists in realisation of the free intention of the testator. Since then the concept "will" or "spiritual" has been fixed.

Article 1010 of volume of X Code of laws of Russian empire designated the will as "will". A.Ljubavsky gives a following origin of the name "will" «This expression, possibly, was formed in our fatherland by by historical, pivotal image because to Peter the Great all wills affirmed clergy, were constituted at direct participation of the confessor dying, and comprised in bolshej parts of cases refusal of property in favour of churches and monasteries so that the last remembered died for the peace of; at last at existence in ancient Russia patrimonial and patriarchal concepts, on the will looked as at (spiritual) order beyond the grave died, to challenge which esteemed reprehensible» [69].

Possibility of fulfilment of wills assumed a number of conditions. According to item 1018 of the Code of laws of the will could be made only by capable people (the persons having the right under the law to alienate the property). The then understanding of capacity was reflected in item 1019 maintenance t. H Ч.1 the Code of laws which established that wills of minors (not reached 21 years) and the people deprived on court of all rights of a condition after the announcement by it of a sentence are void. In item 1016 t. H Ч.1 the Code of laws the requirement according to which all wills are valid under condition of their drawing up of sound mind and memory contained. In item 1017 categories of people which, according to norms of that time, could not possess sensible mind and the bona memoria were specified and, accordingly, could not make the wills which are valid - madwomen during insanity and the suicide [70].

Unlike legislations of the majority of the European countries during this period, the Russian legislation did not contain such concept as the compulsory portion. However inherently will lock to bequeath patrimonial property had including obespechitelnye functions. This interdiction did not extend on cases when the legator wished to bequeath an entail property in estate for life to the spouse of the legator and when the legator had no neither children, nor grandsons. In the latter case the will in favour of someone one of distant relatives if it belonged besides a sort, as the legator was supposed.

During this period there was an inequality between men and women at inheritance realisation. Imperfection of the legislation defining laws of succession of women, K.N.Annenkov, A.V.Kunitsyn, V.N.Nikolsky and other researchers [71] marked.

After death of the legator, according to item 1060 t. H Ч.1 the Code of laws, the will should be presented for the statement within a year from the date of death of the legator (for sojourning abroad within two years) to district court on the location zaveshchannogo property or on a residence of the legator. After the specified term of the will were not accepted to execution and became insignificant (item 1065 t. H Ч.1 the Code of laws).

Under D.I.Meyer's statement according to the legislation of Russian empire the inheritance was understood as set of the rights and duties which (items 1104) remained after the deceased person. It is interesting to notice, that at that stage responsibility of successors on debts of the estate-leaver has not been limited by cost of the property which has passed to them. The law provided a rule according to which the successor who has accepted the inheritance, answered on all debts of the estate-leaver in full. At the same time from the given rule exceptions have been established. So, for example, successors answered before creditors of the estate-leaver within cost of the received inheritance in the event that the estate-leaver, having committed a crime, has caused property damage to other person and presence of the termless treaty obligations which have been given out

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The estate-leaver.

At hereditary succession all members of a sort were called for inheritance, it concerned «... All members of a sort, one-consanguinity of components, before its perfect termination not only in man's, but also in female generation» (item 1111 of the Code of laws civil). The affinity of relationship was defined by lines (communication of degrees) and degrees (communication of one person with [72]

Other means of a birth). Relations of property did not grant the right

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To inherit under the law.

Under the Code of laws, under the law set of property, the rights and the obligations which have remained after intestate (article 1104) was considered as the inheritance.

According to article 1105, the persons connected by "consanguinity" with died, were supposed to the inheritance without distinction of a condition; serf people were inherited by noblemen and other persons of "a free condition» at rule observance about possession. According to article 1110, the inheritance passed to the legal heir, when: 1) the died left after itself an entail property; 2) the died has not made on a case of the death of the will on the order the nonancestral estate; 3) testamentary dispositions admitted court void.

The Russian pre-revolutionary legislation did not consider the succession as a unit, and subdivided it on two independent weights with their special order preemstva. The patrimonial property could pass only to legal heirs, and for other property there was a general order of inheritance.

The hereditary succession mechanism defined, that inheritance between relatives is carried out on lines (item 1121). The paramount right of succession has been given relatives on a descending line, and at their absence, the inheritance "addressed" or in a collateral line, or, in certain cases to parents and ascendants of the died. Under article 1122, in each line the nearest degree excluded the further. For example, at the live father the son could not inherit for the grandfather. [73 [74]

It is interesting to notice, that under the general rule the Imperial law did not name among successors of parents died and other ascendants. The exclusive right of estate for life was given to parents of the estate-leaver by the property got by died children, however the given norm operated under a condition if the estate-leaver did not have own children. At the same time to parents the property which they have presented to children at their life came back. But it is necessary to consider, that such property "came back" it not as inheritance, and in the form of gift.

The right to renounce the inheritance was given to successors, having submitted in

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Court the corresponding statement.

The law of succession of the end of XIX century - the XX-th century beginnings fixed position that the patrimonial property could pass only to legal heirs, and the number of turns of successors was not established, and for other property there was a general order of inheritance. Class character of inheritance and existing privileges of a primogeniture, laws of succession of women uravneny with laws of succession of men have disappeared. All it proceeded to 1917г.

Thus, legal regulation of inheritance of the property rights connected with enterprise activity in pre-revolutionary Russia had following tendencies:

1. Enterprise activity basically has been presented to the considered period by trading activity. For merchants was available both movable, and real estate, and last kind of property basically was of value. The state has gone to a pre-revolutionary stage of formation of hereditary legal relations on a way of cancellation of special character of inheritance of real estate (except patrimonial), and has fixed the unanimity of the mass of the succession. [75]

2. In the end of XIX century the Russian legislator has strengthened a standard regulation concerning lines and turns of inheritance for the purpose of an establishment of more accurate order of the order of property of the estate-leaver - the businessman.

3. The state during the pre-revolutionary period, beginning from the Russian Truth to the Code of laws of Russian empire, strengthens the role in legal regulation of inheritance of the property rights connected with enterprise activity. There is an expansion of free agency of the estate-leaver who is engaged in trading (enterprise) activity. It is necessary to notice, that by the end of XIX century in legislative instructions get more and more accurate formulation of the right and a duty of subjects of hereditary relations (first of all successors).

4. In the law of succession of Russian empire in noted period the state has gone on a way of expansion of freedom of testamentary disposition by the real estate the person, an engaged in trading business. With that end in view the power was differentiated by real estate on acquired and patrimonial, and also has expanded a circle of persons, having the right to inherit the specified property. The interdiction for testamentary disposition concerning patrimonial property which did not descend was a unique exception of this rule.

5. In XIX century the Russian jurists investigated enough wide range of problems in hereditary legal relations: the legal personality of participants of the given legal relations; the legal nature of testamentary disposition; a parity of the state and private interests concerning freedom of testamentary disposition and others. But there were no the scientific works directed on research of questions of inheritance of property rights, connected with enterprise activity. The given circumstance, most likely, speaks legal reform spent during this period and absence of the state will for the decision of these questions.

6. Having created the Code of laws of Russian empire, the state has officially established system of the legislation which has allowed to provide operative search of the operating is standard-legal material regulating, including, inheritance of the property rights connected with enterprise activity.

2.2.

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A source: RYBACHUK Elena Jurevna. INHERITANCE of the PROPERTY RIGHTS CONNECTED With ENTERPRISE ACTIVITY. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2013

More on topic 2.1. Features of legal regulation of inheritance of the property rights connected with enterprise activity in pre-revolutionary Russia:

  1. Chapter 2. Historical aspects of inheritance of the property rights connected with enterprise activity. Foreign experience of legal regulation
  2. Chapter 3. Features of inheritance of some property rights connected with enterprise activity
  3. Chapter 1. Teoretiko-legal aspects of inheritance of the property rights connected with enterprise activity
  4. § 1. Inheritance of the rights connected with participation in activity of managing subjects, enterprise inheritance
  5. specificity of inheritance of the exclusive rights connected with enterprise activity
  6. the CHAPTER II. ISTORIKO-LEGAL DEVELOPMENT of LEGAL BODIES AS SUBJECTS of ENTERPRISE ACTIVITY In PRE-REVOLUTIONARY Russia (the REVIEW of the LEGISLATION, the THEORY And PRAVOPRIMENITELNOJ EXPERTS)
  7. RYBACHUK Elena Jurevna. INHERITANCE of the PROPERTY RIGHTS CONNECTED With ENTERPRISE ACTIVITY. The dissertation on competition of a scientific degree of the master of laws. Moscow -, 2013 2013
  8. concept and kinds of the property rights which are connected with enterprise activity and a part of the succession
  9. 2.3. Features of the reception of the Roman Law in pre-revolutionary Russia.
  10. § 5. Features of institute of confidential management in relations on enterprise inheritance as property complex
  11. 3.1. Features of inheritance of the rights connected with participation of the estate-leaver in economic associations, societies and production co-operatives
  12. Chapter 3. Features of inheritance of the enterprise as property complex
  13. §3. Development of institute of the state judicial review behind activity of the international commercial arbitration in pre-revolutionary and the Soviet Russia.
  14. § 1. Subjects of legal relations on enterprise inheritance as property complex