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management of the general thing in the right of the general the share Properties

Any definition in civil law is dangerous, for a little such, that could not be confuted.

JAvolen [233 [234]

The foreign legislation as already it was marked above, gives special attention to regulation of management and using the general thing.

The Russian legislation limits regulation by possession, using and disposal of community property. It is connected first of all with a difference of approaches to property right definition. The triad of proprietary rights is put in a basis of a domestic legislative definition, legislators of the European states make a start from wider spectrum of competences, namely realisation of any actions in relation to a thing at own discretion and elimination of any influence from other persons, with observance of the law and the rights of the third parties. Besides, the foreign legislation is guided by idea of the economic property, that without maintenance of due level of management of the joint property it is impossible. In the joint property questions on administration of common property have bolshee value, than in the usual property as in relations sosobstvennosti interests including economic, several persons, therefore regulation of an order of management by the general thing should be carried out up to the mark closely intertwine.

Value of the term "management" occurs from a verb to operate, which V.Dalja according to definition means: «to operate than, to correct, setting in motion, a direction; to dispose, manage, be the owner,

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The manager of that, porjadnichat... To put in order ».

In philosophical sense management is «an element, function of the organised systems of the various nature (biological, social, technical), providing preservation of their certain structure, maintenance of a mode of activity, realisation of the program, the activity purpose» or «the function of any organised system directed on preservation of its qualitative definiteness, on maintenance of dynamic balance with Wednesday and on its development» [235 [236] [237].

In economic sense management represents: «conscious purposeful influence from subjects, directing bodies on people and the economic objects, carried out with

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The purpose to direct their actions and to receive desirable results ».

Despite variety of treatments of the given concept, all of them under management understand actions or system of actions. As it is fairly marked in the literature, there are universal parametres of this phenomenon:

«- Operating influence carries supervising (organizujushchy character);

- It means sistemnost administrative activity;

- Management distinguishes purposefulness of the actions made by the subject of management;

- Operating influence is directed on streamlining of object of management »[238].

Speaking about civil understanding of management, it is possible to allocate three basic positions. First two are connected with property right definition through a triad of proprietary rights. In this case management is perceived or as one of competences of the property within the limits of a triad, or as a way, the form or aspect of realisation of competences and duties of the proprietor. Representatives of conditionally allocated third group consider management as the independent proprietary right along with an existing triad.

The first approach finding a place to management in a triad of competences, is presented by three positions. According to the first of them management is in frameworks of the order property. So, S.A.Hohlov, noticing, that for the characteristic of the maintenance of the property right, following the Russian traditions, is enough to specify only competences: possession, using and the order property. In its opinion, «there is no necessity to enter the fourth element - management of property. Management can be considered as a component of the right of the proprietor to dispose of property» [239]. S.S.Alekseev adhered to the Same position, specifying, that management as the category «can be understood only from this point of view order competences» [240].

According to the second point of view management is carried out within the limits of using and order competences. So, V.P.Kamyshansky notices, that «allocation of competence of management in addition to three competences of proprietors traditionally existing in the Russian civil legislation, is not justified as this function of the proprietor can be quite opened and realised through using and order competences. Besides administrative relations are closer to administrative law, than to civil» [241 [242] [243].

According to A.A.Rubanova, management «is a key to all model of the property rights».

According to the second position management is understood as the form or aspect of realisation of the property right as a whole.

So, V.I.Bibikov considers, that «use by the legislator along with typical proprietary rights (possession, using and the order) a design« management of property »does not bring anything

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New in its maintenance, and reflects only aspect of its realisation ».

E.A.Sukhanov notices, that «theoretical attempts to add this« a triad »other competences, for example management competence, have appeared unsuccessful. At more thorough examination such« competences »appear not the independent possibilities given to the proprietor, and only in the ways of realisation of competences already available for it, i.e. forms of realisation of the right of the property» [244].

As management understands the form of realisation of the property right And. V.Markova considering «management of the collective category consisting of volumes of economic possibilities of possession, using, the order, which realisation occurs through an establishment of those or other methods of adoption of administrative decisions and their realisation. Semantic loading of the term"management"consists that this term informs on special forms of realisation of the property right, instead of about a special title of the proprietor. Thus, in opinion

The researcher, management of property is a form of realisation

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Competences and discharge of duties of the proprietor of this property ».

Management consideration as one of forms of realisation of the property right pushes on thought on the possibility of existence of other form of realisation of the property right deprived of management. Whether it is possible? Actions absolutely fairly concern management on maintenance of safety of property, maintenance of its consumer properties, improvement of this property, and also the actions directed on increase of cost of property and extraction of profit. Whether it is possible to present realisation of the property right without realisation at least the minimum set of these actions? For example, the proprietor of any apartment, leaving, locks a door, not realising that makes actions on management as its act is directed on maintenance of safety of property. Putting in order, as well as realisation flowing or major repairs, are the actions directed on maintenance of consumer properties of a thing, so, concerning management of this property. Thus, to imagine property right realisation, passing management, it is impossible. No less than it is impossible to "squeeze" administrative actions in frameworks of an existing triad of competences.

The problem of existence of a triad of competences most in a complex also is thoroughly presented in K.I.Sklovskogo's work «the Property in civil law» in which the scientist confidently proves accident of occurrence of a triad of competences of the property in the Russian civil law and characterises it as «legal toolkit braking development which is not capable neither to own development, nor to reaction to the valid complexity of property relations in a modern society». The author notices, that «actually, of course, [245] however many has been given competences to the proprietor, its right never will be full as the rights and possibilities, in"list"not entered can be always invented and proved, and realisation by the proprietor of the power over a thing from the same positions can be always qualified as beyond the list and consequently the wrongful. Therefore definition of the property by means of any list is a sign on restriction of the right, direct detection potential, and more often actual ushcherbnosti this right »[246 [247] [248].

As E.Volf fairly marked: «only the limited real right can be described. For the property it is impossible to settle

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Transfers completeness of possible domination ».

For the first time in domestic civil law have started talking about management as the independent proprietary right concerning the state and municipal property. So, And. M.Turubiner included in the maintenance of the property right to the earth, besides possession, using and the order, management and the control. G.A.Aksenenok carried management to one of elements of the right of the socialist property [249]. However the specified positions basically have not received support in the literature.

S.A.Zinchenko and N.S.Bondar consider, that «in reality universalizatsija specified« triads »leads to absolute obstacles when the problem legal oposredovanija the relations of the property losing purely commodity (market) beginnings dares. After all the considered legal model the perfect conditions should have the simple commodity production and« pure »a private property. Certainly, it can« work »and outside of such conditions, but not at all times. In new historical conditions it« masters »the commodity form of relations of the property and no more. And as the last far are not settled by marketability, it is necessary to deduce and consider at definition of the property right and other competences» [250]. Scientists insist that «... The new model of the property right on base konstitutivnogo an element - management relations» is in essence formed. Thus they consider, that «the management competence is not included immanently into internal structure of the maintenance« pure »(classical) property right in the form of possibility of realisation of competences of possession, using and the order, and is an organic product of development and overcoming,« removal »in the conditions of integration of manufacture, regulation of the market, consolidation and society socialisation» [251].

The management right concerns a category of the dynamic competences, called to provide realisation of competences of possession, using and the order property from the proprietor. The management right has the purpose transformation of possibility into the validity, i.e. introduction of the right by the proprietor into a mode of legal relations by means of which it can be realised. [252]

It is thought what to deny communication of competences of possession, usings, orders and managements it is senseless. However the management competence is always the active and purposeful activity which basic directions are:

- Thing preservation;

- Maintenance of consumer properties of a thing;

- Thing improvement;

- Extraction of profit from a thing.

Administrative activity always is present at the property right. As fairly marks And. V.Markova, «about management as the independent phenomenon it makes sense to speak only when there is a requirement for use of special, special mechanisms of the organizational plan without which effective realisation of proprietary rights is impossible. Such requirement can be caused complexity of object of management, plurality of subjects, necessity of use of a professional knowledge» [253]. In the joint property right thorough regulation of managerial process by a thing is necessary, as in it interests of several persons are crossed, and these persons are owners of the fullest real right and can define legal destiny of a thing, up to its destruction. In the right of the joint property thing destruction will inevitably entail infringement of interests of other joint owners that is inadmissible. Absence of legal regulation of administration of common property does the given relations first of all economically unprofitable. Indifference of the law to administrative aspect leads to "degradation of the property arriving in common use» [254] that is why does undesirable relations of the joint property neither for their participants, nor for economy.

It is thought, that the right regulation of administration of common property in the right of the general common property is necessary first of all in connection with the account of corporate character of the given relations. «Corporate relations are relations on formation and realisation of relations of the property with plural structure of subjects-proprietors» [255].

N.N.Pahomova names legal relations of the general common property by the most "simple" organisation-legal form of the corporate relations which have been not connected with creation of the legal person - corporations »[256].

Except that N.N.Pahomova notices, that «features of realisation of legal relations of the general common property are caused by their consumer character and forms of association of activity of joint owners. With reference to the general common property the legislator speaks not about a management and business management order, and about a procedure joint owners of competences of possession, using, the order which major principle is the coordination principle vol joint owners» [257 [258].

However the law has examples of regulation of administration of common property. So, the Russian Federation provides item 44 ZHK, that the meeting of proprietors of premises in an apartment house is controls an apartment house which chooses a way of management of an apartment house. This example proves, that the legislator uses categories "organisation" and "management" primenitelno not only to legal bodies, but also to other forms of association of subjects.

According to item 1153 GK the Russian Federation the inheritance can be accepted by the actual introduction into possession of the succession which is understood as actions on management, to the order and using the succession, its maintenance in proper condition, payment of taxes etc. [259] In item 1173 GK the Russian Federation devoted to a question on measures on management by the inheritance, is specified, that if as a part of the inheritance there is a property demanding not only protection, but also management, the notary according to item 1026 GK the Russian Federation as the founder of confidential management concludes the contract of confidential management of this property. Thus, the management category is not alien to the general common property and has cases of legislative regulation.

Allocation as the independent proprietary right of management will correspond, first, to the economic maintenance of the joint property as the property first of all a category economic so, the right should make a start from its economic essence, mediate interests of economy.

Secondly, allocation of competence of management in addition to a triad of proprietary rights is quite entered in the modern concept of development of the civil legislation. Point 3.2. Concepts of development of the civil legislation the property right, as real right which gives to the person the fullest domination over a thing, including by possession defines «, usings and orders it, and also fulfilment concerning it any actions which are not forbidden by the law both not breaking the rights and interests protected by the law of other persons».

Thirdly, it would allow to unify also the legislation on the joint property as, for example, ZHK the Russian Federation will constrain concept administration of common property, and GK the Russian Federation, regulating joint property substantive provisions about management, even does not mention. Meanwhile management in the same measure is actual not only for the community property of proprietors of premises in an apartment house, but also for property of a country farm, the inheritance representing the community property, share investment funds, the community property dolshchikov at habitation building etc.

The German right provides, that management of the general thing is carried out together by all proprietors, however the given norm is formulated dispozitivno, and joint owners the agreement can establish other. The separate joint owner is not authorised by the law on realisation of actions on management of the general thing at own risk. This rule has meanwhile the important exception according to which each joint owner can carry out the actions necessary for preservation of a thing, without the consent of proprietors of other shares. These actions are carried out until authorised sees in it necessity for thing preservation (§ 747 GGU).

Realisation of actions for using and management affirms the majority vote. In interests of a generality the management and using order can be transferred each joint owner to the reasonable discretion of the judge (§ 745 I, II GGU). This mentioned reference to the judge is an obstacle for infringement of interests of minority in case the made decision does not consider its interests.

The German law provides two exceptions of majority rule application at decision-making. Change of a special-purpose designation of property is possible only on the basis of unanimously made decision. The purpose of use of the general thing for each of joint owners is a sense of participation in a generality, therefore change of the purpose of use is possible only taking into account opinion of each of joint owners. Besides change of a special-purpose designation of the community property the decision on the order should be unanimously accepted the general thing.

GK Austria regulates management of the common property of norms § 833 which differentiate usual and extreme management.

For realisation of usual management the majority rule which is defined not by quantity of persons, and on size of shares operates. The necessary actions directed on the maintenance of a thing and maintenance of its consumer qualities concern measures of usual management, carried out in interests of all joint owners and not demanding special expenses. [260]

The criterion of differentiation of usual and extreme management is indistinctly formulated by the legislator therefore is an occasion to quarrels at law. The judiciary practice analysis shows, that to usual actions for management except all measures under the community property maintenance carry, including, cancellation of the rent contract with the tenant of the community property, decision-making on appointment

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The managing director, operating repair, including changes of property by means of realisation of building actions which follow

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From simple maintenance of a special-purpose designation of a thing.

Improvement of property and change of its special-purpose designation concern emergency measures on management, including: the conclusion on longer, than usually, term or on unusual treaty provisions of rent of the community property, regulation of questions of using of the general

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Thing, and also realisation of the building actions concerning

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Basic designs of the house.

The greatest differentiation of actions on management is carried out by the Swiss legislation which allocates five kinds of administrative actions, namely:

1. Necessary actions on management is the all actions necessary for extraction of profit from a thing and bar of claim by lapse of time of deterioration of its condition. Besides necessary building actions (item 647 GK of Switzerland), repair, restoration or reconstruction which are obligatory for normal functioning of a thing and profit reception concern this group. An example of other necessary actions on management are calculation under the mortgage, purchase of a forage for animals, appointment of the representative etc. [261 [262] [263] [264] [265]

2. Urgent actions on management, that is what should be undertaken immediately if the risk of approach of losses or property deterioration threatens. For example, urgent repair of the water drain or a roof. Such actions can be undertaken by any joint owner.

3. Usual actions on management (item 647 GK of Switzerland). They are directed or on reception of profit on the general thing, or on prevention of harm (losses). These are the purposeful actions undertaken by joint owners at a normal current of affairs, are in interests of each of them and do not demand especial expenses. They can be carried out by each joint owner until other will not be established by the agreement of the parties.

4. The important actions on management (item 647 GK of Switzerland) are efficiency duties on the management, not concerning to usual, and also to building actions. For realisation of the important actions for management the special majority of voices of joint owners is necessary.

5. Building actions (for example, building of system of a central heating or installation of the necessary equipment). Building actions also come under to differentiation:

Necessary building actions for which realisation decision-making by the majority vote of joint owners or the decree is necessary. In enterprise sphere other quorum can be established;

Useful are objectively useful building actions, the decision on which realisation is accepted also by the majority vote;

Magnificent building actions. For their realisation the unanimous decision is required.

The management order is legislatively settled concerning necessary and urgent actions (item 647 II GK Switzerland), however regulation has the optional nature and can be changed the unanimous decision which concerning real estate comes under to registration in land records.

In connection with the stated general scientific, theoretical and legal arguments it is considered possible to draw following conclusions:

The first: the right of Germany, Austria, Switzerland and France contains the rules of law of the joint property regulating managerial process by the community property. The necessary actions directed on the maintenance of a thing and maintenance of its consumer qualities concern management, carried out in interests of all joint owners and not demanding special expenses, and as actions directed on improvement of property and change of its special-purpose designation. And administrative actions come under to strict classification (Germany and Austria - usual and extreme management; Switzerland - necessary actions on management, urgent, usual, important and building administrative actions; France - the measures directed on preservation of property, urgent measures, other actions in common interests). Depending on a kind of administrative decisions to their acceptance it is applied either the majority rule, or unanimities.

The second: the Russian right of the joint property does not contain the general provisions regulating a procedure or the maintenance of administrative actions. Necessity of addition of the Russian norms about the joint property norms, about administration of common property is caused: first, the economic maintenance; secondly,

neohvachennostju all possible actions of the joint owner by a classical triad of competences of the property; thirdly, necessity

Unifications of the civil legislation [266].

1.4.

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A source: FILATOVA ULJANA BORISOVNA. INSTITUTE of the RIGHT of the JOINT PROPERTY In ROMANO-GERMAN COUNTRIES of the LEGAL FAMILY (Germany, Austria, Switzerland, France And Russia: rather-LEGAL RESEARCH). The dissertation on competition of a scientific degree of the Doctor of juridical science. Moscow - 2015. 2015

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  2. the Russian doctrine about the nature of relations of the general the share Properties
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  6. the agreement on definition of an order of possession, using and the order the general thing
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