Wine lawsuit. WINDICATION COSSION OF CIVIL RIGHT

UDC: 347.2 / .3

Chigonina L. A.

lecturer, Department of Civil Law Disciplines,

RF FGBOU V

simferopol

Babayan K. V.

student krf fgbou in

"Russian State University of Justice",

simferopol

Skoritskaya O. D.

student krf fgbou in

"Russian State University of Justice",

simferopol

Features of the content and application of the WINDICATION Claim

The article analyzes the main elements of the WINDICATION Claim, the presence of a totality of which allows you to recover a thing from someone else's illegal actual ownership. Moreover, the content of the named claim is revealed not only from the position civil law, but also from the point of view illuminated in scientific legal literature. In addition, the main provisions of the topic under consideration are supported by the materials of judicial practice, which makes it possible to further explore the features of the application of the WINDICATION Claim within the framework of the existing reality.

Keywords. WINDICATION, WINDICATION SUBLICATION, OWNER, TITLE OWNER, Conscientious and unscrupulous acquirer, actual illegal possession.

Meaningful place among real-acting protection in civil law It is assigned to the WinDicational Council, under which the claim is recognized that does not own the owner's thing to illegally actually possessing it in a non-overall. From the Latin language, the named claim is translated as "Announcement of Power", "Require." It should be noted that the feature of its content and application is reflected in the following legal categories: Subject, subject of dispute, object, base presentation and satisfaction, as well as jurisdiction and lawsuit. Due to the fact that the absence or violation of at least one of listed conditions It entails the impossibility of presenting such a kind of claim to its satisfaction with the court, we believe it is advisable to consider each of these elements in more detail.

It is clear that the subjects of the WinDikational Claim appeases from the plaintiff - the owner and a person who owns such property on the basis of the law or contract (title owner), and on the side of the defendant - a person in the actual / illegal possession of which is challenged property (an unimpressed thing I got the thing at the subject who did not have the right to dispose of it).

It should be noted that an important role in the issue of determining the parties of the WINDICATION COST is given to this circumstance as good faith and the unscrupulousness of the acquirer.

In this regard, the actual owner of the thing, which did not know and could not know about what had acquired a thing belonging to the alpoistor acquired, was considered in good faith. For example, a conscientious acquirer can be considered a person who has acquired a thing in a commission store previously stolen by the owner. This owner cannot be requested by money, as well as the presenter securities. Nevertheless, the property can be returned to the plaintiff, if it was received by a conscientious acquirer of free. For example, as a gift or in the order of inheritance. And also, in the case of a paid acquisition, if such property was lost by the owner or other title owner, either kidnapped or left the ownership of the latter other ways besides their will. However, it should be borne here that if the property was originally dropped out of ownership of the owner according to his will (renting an apartment for rent), as O. G. Zubareva points out, and then illegally (was alienated by selling it) came to a conscientious acquirer, then the above In such a situation, there will be no act ( legal owner It will be able to claim only reimbursement of incurred losses - a video restriction).

It should be noted that considering Art. 303. Civil Code Russian Federation (hereinafter - the Civil Code of the Russian Federation) The conscientious acquirer is obliged to compensate the plaintiff all incomes that he learned or had to learn from property during the time he learned or should have learn about the illegality of his own ownership. In addition, he has the right to leave the improvements made by him if they can be separated without substantial damage to property. And if this department is impossible, then it is entitled to demand from the plaintiff to compensation for all costs associated with improved improvements, but not over the size of an increase in property value.

The legislator provided that the actual owner, who knew or in circumstances, should have known or in circumstances, was recognized, or in circumstances was to be aware of the lack of rights to property. In particular, the acquisition of any thing with "hands" at an underestimated price or in the absence of documents on it are grounds for the diverse in the right seller to alienate such property. This owner has property to be exterminated by the owner in all cases without any restrictions. In addition, such an acquirer must return the plaintiff all the incomes he received or should have been received from the property during his own possession.

At the same time, both conscientious and unscrupulous acquirer have the right to demand from the legal owner of the reimbursement of the necessary costs of maintaining property during which the owner is due to property revenues.

In turn, the subject of the dispute is the requirement to return to the rightful owner or other title owner of his thing from someone else's unauthorized ownership. A. P. Sergeev and Yu. K. Tolstoy indicate that their goal is recognized as the restoration of actual possession, which is achieved by performing bilateral action: seizure and transfer.

The object of the Wine Claim is an individually-specific thing stored in nature. This means that the lawsuit will not be satisfied about the recovery of generic things, as well as not stored in nature, since it is possible to recover only a specific thing, without replacing its other thing, other kind and quality.

Thus, the grounds of presentation and satisfaction of the WINDICATION Claim are recognized by the aggregate of the actual and legal circumstances, with whom the plaintiff connects its demand for the defendant and asks for the protection of its right. In this case, it can be attributed, with the exception of the already given, the following:

1) As a rule, this is the absence between the parties to contractual relations about the disputed property, which follows from the absolute nature of the right of ownership. At the same time, as M. A. Ostashevsky indicates, the right to the WINDICATION cannot be considered as an absolute, as facing an indefinite circle of persons. In legal

the space is absolute is the right of ownership, a corresponding duty to refrain from his violation. In addition, appreciating legislative acts It can be argued that the requirement itself may arise only at the time of violation of law and he opposes a certain subject, namely the illegal owner;

2) As you know, the owner does not actually own a thing, i.e. it cannot be carried out by the generally installed "Triad" of the authority, and it is to own, use and dispose of property belonging to it;

3) the property is necessarily in the actual illegal ownership of a non-overall;

4) the thing is preserved and the net in nature;

5) In addition, the burden of proving this kind of claim to fall on the plaintiff. He must submit an undeniable evidence of his property right to investigate property. For example, if it real estate - extract from the USRP; In the event of any other property - a check on purchase or other acquisition documents.

Following in the direction of studying the content and application of the WINDICATION Claim, the jurisdiction of such claims needs refinement. According to the Decree of Plenum Supreme Court RF, protection of violated civil rights, including real rights, Courts general jurisdiction, Arbitration Courts, Arbitration Courts. Consideration of this appeal will be carried out at the place of residence (for the organization - at the location) of the defendant.

No less relevant is the question of of limitation such claims where the legislator is established total time In 3 years. At the same time, the beginning of the calculation of the term is recognized as the day when the plaintiff learned or was supposed to learn that the property was out of his possession and his right to it was broken.

Currently there is a very interesting judicial practice about the recovery of property from someone else's illegal ownership. As follows from the explanations contained in P.P.32, 36 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 29.04.2010 No. 10/22 "On some issues arising in judicial practice When resolving disputes related to the protection of the right of ownership and other things "(hereinafter referred to as the Resolution), the owner has the right to refer its property on behalf of which it is actually in illegal ownership, while he must prove his ownership of property ownership defendant. In this case, the ownership of movable property is proved using any provided procedural legislation evidence confirming the emergence of this right of claimant. Also, the fact of this category is to be proof and the fact of finding property in the actual hold of the defendant. It is impossible, however, do not notice that it does not establish at least one of these facts excludes the satisfaction of the WINDICATION Claim.

So, in Samara regional Court Received appeal complaint On the decision district Court On the recovery of movable property from someone else's illegal possession. The subject of proof on the claim is the presence of the claimant of a real law on controversial property, as well as the ownership of the defendant with this property without a proper legal basis and indicating the plaintiff individually defined signs of exterminated property. In this case, the defendant could not prove that he owns acquired by movable property on legal grounds. The judicial board came to the conclusion about the satisfaction of the claim and the extermination of property from someone else's illegal ownership of the defendant, since controversial property dropped out of his own ownership in addition to his will. We assume it is advisable to indicate that this conclusion of the court is consistent with paragraph 39 of the previously specified decree. According to which, in meaning of paragraph 1 of Art. 302 of the Civil Code of the Russian Federation The owner has the right to refer his property from someone else's illegal possession regardless of the objection of the defendant that he is a conscientious acquirer if he proves the fact

the disposal of property from his possession or possession of the person to whom it was transmitted by the owner, besides his will.

In conclusion, we note that the WINDICATIONSHIP is one of the most complex real-on-legal ways directly aimed at protecting ownership of the property as absolute. subjective right, the presentation of which is not related to the presence of any specific obligations and is intended to restore the established legal regime Ownership, use and orders of the legal owner in relation to the property belonging to him. The practical of all law scientists exploring this topic indicate that the observance of the proposed order of its content and application is the necessary and dominant condition in satisfying the last court, as well as the achievement of the goals set in front of it, in particular, the comprehensive timely civil legal protection of property owners and other title owners from unlawful encroachment on the part of other persons.

Literature

1. Civil Code of the Russian Federation (part of the first): Feder. Law Ros. Federations of 30.11.1994 No. 51-FZ (ed. From 28.12.2016): adopted by the state. Duma Feder. Cathedral Ros. Federation 21.10.1994 // Meeting of the legislation of the Russian Federation. - 1994. - № 32. - Art. 3301.

2. Resolution of the Plenum of the Supreme Court of the Russian Federation №10 / 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights" // Bulletin of the Supreme Court of the Russian Federation. - 2010. - № 36.

3. Appeal definition No. 33-1576 / 2017 dated February 20, 2017 in case No. 331576/2017, Samara Regional Court. - [Electronic resource] // URL: http: rospravosudie.com.

4. Gambarov, Yu. S. Civil law. a common part / Yu. S. Gambarov. - M., 2003. -

5. Zubareva, O. G. possession and its design in the civil law of the Russian Federation: Dis. ... Cand. jurid science - Rostov-on-Don, 2003. - 158 p.

6. Ostashevsky, M. A. Protection of the rights of a conscientious acquirer: dis. ... Cand. jurid science - Krasnodar, 2006. - 178 p.

7. Sergeev, A. P., Tolstoy, Yu. K.: Civil law / OT. ed. A. P. Sergeev, Yu. K. Tolstoy. - M., 2004 - T.1. - 765 p.

8. Sukhanov E. A. Russian Civil Law: Textbook: In 2 volumes. Volume I. General part. Related law. Hereditary law. Intellectual rights. Personal non-property rights / Answer ed. E. A. Sukhanov. - M.: Statute, 2011. - 958 p.

WINDICATIONSHIP - This is the requirement of the owner on the return of property from someone else's illegal possession. The possibility of filing to the court of this claim is governed by Article 301 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation).

The claimant in this situation is the owner, that is, the person legally owning the right of ownership, the defendant is a subject with property, contrary to the desire of the owner and does not have legal grounds for it.

! WINDICATION - (from lat. - "Protection") - Claiming the claimant owner of legal ownership through trial In persons who have agreed property without legal reason.

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Features of the WINDICATION Claim

This model of legal proceedings began to form still in Roman law. Stating the WINDICATION Suit, first of all, should be taken into account that they have the right to vote (return) of property from the hands of third parties who illegally owning them can only own the owner (from Art. 301 of the Civil Code) or another person who may not be direct The owner, but possesses any property on the right of life lifelong heritage or by other grounds provided for by the legislation of the Russian Federation. This entity has the right to protect his property also against the owner (from Art. 305 of the Civil Code of the Russian Federation).

! Please note that the burden of proving the fact of the property of the owner's property in which or ownership (legally or illegal) falls on the plaintiff.

The purpose of the Wine is the return of property to the owner by selecting it from an illegal user. But first, the owner himself must prove that he owns the property on the basis of the law. Therefore, the statement of claim for defending property must include data proving the availability of ownership of the person who applies to the subject of the dispute.

In the civil law system of the Russian Federation, the WinDikational lawsuit is presented as one of the numerous and most effective methods of protecting property. Based on it, the owner is entitled to demand its property back by the person who is illegally owned by it. But that the judge adopt to consideration and satisfied the claim for the return of legal property, the owner needs to be familiar with the extensive range of rules and conditions:

• the owner of the property at the time of filing the claim physically should not be physically owned by his property, and cannot have another opportunity to return it, except for statements in the judicial authority;
• if the property is actually not at the disposal of the owner, but it turned out in the hands of a third party who took possession of them as a result of illegal actions - kidnapped or who assigned to the find, the probability of satisfaction of the WINDICATION Claim is quite high. It is worth noting that the embezzlement of any kind of property is not a reason for legitimate legal use and is prosecuted by law, as it is regulated by the norms of the Criminal Code of the Russian Federation;
• if the deadlines for the pre-prisoner between the parties to the Treaty on temporary possession and use by any property have expired, and the actual owner does not want to return property to the owner, then the WINDICATION SCIENCE will rather be satisfied. It is worth noting that the object of the dispute during and before the end of the trial should be in the same condition as at the time of signing the parties to the contract. Also, in the case of the destruction and / or damage of the property, the owner has the right to declare a claim for damages;
• claims claimant must be clearly formulated, the claim object is specified by a specific subject or part of it;
• the plaintiff is obliged to prove its right to legitimate property (for example, presenting a certificate of state registration Rights, evidence of a record in a landmark book, a share in the right, etc.).

After evidence of the availability of rights to own any property, the owner may unconditionally apply for a claim, including immovable property.

Designed to satisfy the filed claim, the owner reserves the right to demand from the defendant (subject to the satisfaction of the filed claim) monetary compensation In the amount of the amount earned by the illegal owner of the property during the illegal use of the dispute. In this situation, the owner is also entitled to take advantage of the possibility of submitting a security claim, which involves the return of the amount earned by dishonest illegal way.

WINDICATION in the presence of a contract

The statement of the claimant on the return of legal property can only be satisfied if both parties have not previously been in collusion, i.e., if the contract was not concluded on the perpetual transfer of ownership, which has legal force. If the contract was concluded, but subsequently was recognized as illegal, then in such situations, the legislation of the Russian Federation involves the use of special legal measures, the purpose of which is possible judicial challenge Property owner of property rights.
Consider the situation when the property of the owner fell into the hands of another person after the transfer agreement has lost its legitimate grounds as a result of any circumstances. Then the Wine-written claim should contain both the causes and evidence of the illegality of the aforementioned Agreement and the request for the return of property, called restitution.

! Restitution - the process of returning property by the owner, transferred to them to the third party, on the basis of the recognition of the agreement between them is invalid.

Types of illegal use

The person to which the claim is made can use the object as in good faith and unfair. In connection with this actual owners, it is customary to distinguish with the following types:

• the unscrupulous owner (owner of the property, which knows about the illegality of its use or possession, but not giving it into the hands of the legal owner);
• the conscientious owner (a person who received the property of the property does not have reliable information about the illegality of the receipt of this property).

Example of a vinticational claim in civil law

Physical or entity, Rencing room and thus having rights to its use is considered a legal owner on legal basis, if the lease agreement was concluded. The lease agreement should be spelled out that the landlord transmits his property to temporary possession and use of the tenant, as well as the conditions for the provision of rent (rent, its order and deadlines, the term of the agreement, etc.).

After the lease term indicated in the contract concluded between the parties, the tenant is obliged to leave the room or conclude with the landlord new treaty With new conditions. Illegal recognized the use of a leased object outside the time periods established in the contract. But, it is worth understanding that this is not the situation in which the leaser needs to declare a wine lawsuit. In this situation, it is enough to be guided by Article 622 of the Civil Code of the Russian Federation, indicating a person leaseing an object on the return of ownership to the legal owner upon the expiration of the lease agreement.

Finally

Thus, one of the most effective methods of protection of ownership, which our legislation provides today is a WINDICATION Suit. Nevertheless, the success of the Wine is directly related to the competent definition and formulation of claims that pretended by the respondent, as well as from the totality of measures aimed at creating the actual base, proving the legitimate ownership of property, as the claimant's claim and its opponent. This implies a thorough study of the materials of the case and other data, important in the formation of evidence-based reasons in the process of trial.

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Civil law protection of property rights provide various funds provided for in the legislation. All of them form a single system.

Main ways to protect

The following methods are provided in the civil law system:

1. Completely legal. They include such methods that are based on the protection of the legal capabilities of the parties to the relations, are used to compensate for the proposed by the owner, as well as to return unjustiously saved or acquired property.
2. Arising from the general rules. These include the requirements for the recognition of property rights, on the release of material values \u200b\u200bfrom arrest, including claims to public administration and authorities that approved acts that violate the interests of the subjects.
3. Owned. These include WINDICATION and Negators.

Consider the latest methods in more detail.

WINDICATION AND NEWORAL ISKI

The interests of the owner may violate in various ways. So, material values \u200b\u200bcan be illegally withdrawn from the owner. To claim property, the subject can submit a WINDICATION Suit. In civil law, such a requirement is recognized by NEF. This means that the parties to the conflict are not related to the obligations about controversial property. The legislation provides for another way of protection - a negative lawsuit. It is submitted if violation of interests is expressed in the commission of certain actions that do not affect the ownership, but create obstacles to the normal implementation of other legal opportunities. On the land plot The construction can be built, which limits the access of sunlight to plantations on the adjacent one; bailiff It may erroneously include in an inventory about the arrest of someone else's property that is in the debtor, and so on.

Conditions of the WINDICATION COST

Legislation places a number of claims for claims of this kind. In particular:

1. As an object of the claim, an individually defined thing should be. At the same time, property having generic signs is separated from other homogeneous objects.
2. The thing must be in possession of another subject.
3. As a respondent, an illegal owner of the property, which is located. They may have a subject, selflessly carred material values, or a person who bought them from a citizen who had no right to dispose of them.

As a applicant, not only the direct owner of the property, but also his title owner. At the same time, the plaintiff must prove the availability of ownership.

Participants of the dispute

As the plaintiff, the owner of the material values, which they do not own at the time of the claim. However, in practice there is an exception consistent with legislation. It consists in the fact that the WINDICATION claim can send Jurliso, carrying out the operational management of property, which was transferred to him by the owner. Such a situation occurs if the state is the legal owner. The defendant is the subject, which actually uses material values \u200b\u200bat the time of submission of the application. If the illegal owner handed over the thing to someone, then the claim is presented to the person who has it. At the same time, the owner must be recognized illegal.

Illegal possession

Consider cases in which the subject can submit a WINDICATION Suit. In civil law, the following types of illegal property are distinguished:

1. Bona fide. It suggests that the subject does not know, and it should not be aware of the wrongness of ownership.
2. Unfair. In this case, the actual owner knows or should understand according to the circumstances that the property hit him illegally.

Features of the conscientious acquirer

The subject can obtain material values \u200b\u200bbelonging to another person for money in exchange for any material values, services or in the form of remuneration for work. In any case, it must be paid acquisition. The unlawful owner who did not have intent in his actions, since he did not know that he was receiving property from a subject that had no rights to him. The person in this case cannot foresee, does not know and does not want the onset of adverse consequences for the owner. In the actions of a conscientious illegal acquirer, there is no careless form of guilt. He not only did not want to and did not realize, but did not allow the probability of the offensive negative consequences For the legal owner.

Rules of seizure

Return of the illegally held thing to the owner or the owner is the main reason why the WINDICATION COST is served. Civil law has certain rules for the seizure of such material values. First of all, the return of things from unscrupulous illegal ownership can always be implemented. The satisfaction of the WINDICATION Claim in the event of a conscientious retention of property is possible if material values \u200b\u200bwere received free of charge. It may be inherited transmission, donation. If the thing is acquired for the fee, the value will have a way to retire it by the owner feeding the WINDICATION Suit.

Example: Property was leased, and then illegally got to a conscientious acquirer as a result of sales. The owner cannot demand the return of material values. In this case, there is a limited imaging claim. In civil law, such a situation provides for only the possibility of owner to demand damages. If the thing dropped out of the property against the will of the owner, then even on a bona fide acquirer in this case, the Winekatius spreads. This rule, however, does not act in relation to money and securities for the bearer. They cannot be treated.

Important moment

The owner may require the seizure of property only in cases established by Art. 302 GK:

1. With the loss of material values \u200b\u200bto the rightful owner. In this case, the value will have its causes and circumstances.
2. Under the loss of things, the subject she was transferred to the ownership. In this case, it will not matter what the foundation of the provision of a thing is the owner, the main thing is that it is legal.
3. With the abduction of property. In this case, it is also not important in what form it happened (theft, fraud, robbery, robbery, etc.). The key task in such a situation is to establish that the property was alienated by the embezzlement.
4. When removing a thing from ownership against the will of the subject in a different way. Other embodiments include such cases such as the transaction under the influence of threats, violence, deception, error, malicious agreement of the person representing the owner, with another person.

The main point that combines these cases is that the property has dropped out of ownership against the will of the legitimate owner.

Reference calculations

What are the consequences of WINDICATION? This requirement assumes that:

1. The unscrupulous owner must return or compensate for the owner all the revenues he received for the period of use of the thing. The proper acquirer reimburses only the benefit that arose from the moment he became aware of the wrongness of ownership.
2. The illegal owner of the material values \u200b\u200bthat have incurred the cost of their improvement may require the owner of their compensation. It will not matter whether it is a conscientious or unscrupulous user.
3. In case of deterioration of the state of property to the illegal owner, rules apply implemented obligationwhich occurs when damage causes.
4. The conscientious user who made a separable improvement can leave him for himself.

Specificity

In normal turnover, property is carried out by the subject, which is its owner or state bodies, to which it is granted to operational management. In practice, however, there are cases when material values \u200b\u200bbelong to one person, but they use them another. In this case, a certain order will act - the WINDICATIONAL. The claim is in such a situation the requirement of the intangremental owner to a non-overall, illegally useful property, about seizing it in nature. It protects the interests of the proper owner as a whole. The lawsuit is presented in cases where there is a violation of the order, use and possession at the same time. In this case, the subject, deprived of these opportunities, remains the owner of the property. That is what acts as a basis for submitting an application to court.

An object

If the process of the WINDICATION, the claim is the requirement of withdrawal only individually-defined things. It should exist in kind to the direction of the statement. If the property died or the generic thing was mixed with the same, the goal of the Wordication will not be achieved. In this case, the requirement cannot be placed, since there are no material values \u200b\u200bin kind. If the subject of the dispute died or was destroyed after the direction of the claim, by the time of the proceedings, it will not be satisfied. When maintaining the economic condition, the fate of improvements is solved according to the rules of Art. 303 GK.

Advanced

The term of the Wine Claim is 3 years. It is calculated from that day when the owner has become or could be aware of the violation of his interests. As for movable property, the term starts from the date of its detection. In this case, at the request of the removal of a thing from someone else's use when changing the illegal owner, it does not begin again.

The history of the formation of the Winekaya

In contrast, in the German ordinary right in the turnover of movable property, the "Hand Muss Hand Wahren" rule was operating (it. Hand by hand answers ): Only things that came out of the hands of the owner against his will (abducted, lost) could be exterminated by any third party, the same things that were voluntarily entrusted to them, in case of alienation, they could not be exterminated At the conscientious acquirer, and the former owner had only the right to the claim for loss to the one who he was entrusted to: "WO MAN SEINEN GLAUBEN GELASSEN HAT, DA MUSS MAN IHN SUCHEN" (it. That who is entrusted to, so and need to look ).

The Roman Wine Dormitory Rule with a lively trade was able to lead to very serious difficulties, since the buyer could never be sure that some other person would not appear, which would prove his ownership of the thing and will pick it up. The German rule "Hand Muss Hand Wahren" eliminated such uncertainty. Therefore, it received a common distribution first in a special trading right of various states, and then in the general law.

Property Wine Covery

The rules for the claims by the owner of his belonging on the basis of a vinticational claim in the civil law of a number of states are based on the presumption that the owner of movable property is its owner.

In connection with the action of such a situation, the duty of evidence of the wrongness of the ownership of the thing by the defendant falls on the plaintiff. The defendant owner from the proof of the foundation of the acquisition of the ownership is released.

Windiculture and conscientiousness of the defendant

According to the current Russian legislation, the owner has the right to refer property from a conscientious acquirement only in the case when the property is lost by the owner or a person who has been transferred to the owner of possession, either kidnapped in one or another, or dropped out of their possession otherwise, in addition to their will. If the property acquired free of charge from the person who did not have the right to alienate him, the owner is entitled to refer to property in all cases. Money, as well as bearer securities, cannot be exterminated from a bona fide acquirer

If the property from someone else's illegal ownership, the owner has the right to also demand from a person who knew or should have known that his possession is illegal (the unscrupulous owner), the return or compensation of all income that this person learned or should have learned for all the time of ownership; From the bona fide owner of the return or compensation for all revenues, which he learned or was to be learned from the time he learned or should have learn about the misunderstanding of ownership or received an agenda on the claim for the owner's return.

The owner, as conscientious and unfinished, in turn has the right to demand from the owner of the reimbursement of the necessary costs of property from the time from which the owner is due to property revenues.

The conscientious owner has the right to leave the improvements made by him if they can be separated without damaging the property. If such an improvement department is impossible, the conscientious owner has the right to demand compensation made on improving costs, but not over the size of an increase in the cost of property.

see also

• Claim for the recognition of real law
• Conditional lawsuit

Notes

Sources

• Large legal dictionary. 3rd ed., Add. and recreated. / Ed. prof. A. Ya. Sukhareva. - M.: Infra-M, 2007.
• Novoselova A.A., Podhelov T.P. WINDICATION SUBJECTIVE: Elemental composition problems // South Ural state University. Series "Law". 2008. No. 8. Vol. 14. P. 89-92
• Stitches T.P. On the question of the criteria for the ratio of continication and viniculture // Modern law. - 2010. - № 6. - P. 69-72

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• WINDINGSTAD OLE.

Watch what is a "WINDICATION SUBCE" in other dictionaries:

WINDICATIONSHIP - In civil law, the claim for the recovery of its property from someone else's illegal possession. The owner is entitled to demand not only the return of property, but also reimbursement of income that the illegal owner has extracted or should have learned ... Financial vocabulary

WINDICATION SUMMER is ancient legal Institute, known since the time of the origin of Roman law. At the moment, this lawsuit applies within the framework of civil legal relations.

What it is

WINDICATIONSHIP - This is a specific way to ensure your right-minded and interests. That legal phenomenon Used provided that it does not have this title right holder.

In order to get his thing back, the right holder is given the right to apply by submitting this claim. This legal institution is a way to ensure the interests of the persons with the entire three powers, as well as other persons with their own, special rights. A citizen who owns at least one of possible rightsprovided for russian legislationmay file a lawsuit in the order of vinegar.

Dear readers! The article tells about the typical ways to solve legal issues, but each case is individual. If you want to know how solve your problem - Contact a consultant:

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The subject of this act is such a phenomenon as the right demand. It occurs in the presence of such circumstances:

1. The thing ceased to be in the possession of a citizen without his will, for example, when kidnapping or she was lost.
2. It is necessary to determine the item among others to it.
3. The property in this period of time actually dwells by the person who, according to the law, cannot be.

The object of any application submitted to the Court is essentially a dispute. In other words, this is the cause of its occurrence. In the case of WINDICATION, this is a thing with a number of characteristic features that allow it to individualize among other similar. That is, there must be a real opportunity to determine it among other things and identify its properties and quality.

So, the object can be:

• the share that is in the right of common share ownership;
• property, that is, the thing.

Bases for feeding

Before any kind, it is necessary to have sufficient grounds for its feed. You can select a certain group of circumstances giving reason to submit a claim.

Base	Characteristic
Availability of right (title)	The citizen must have a real confirmation that he is a legal owner called titular. Possession can occur on the right of ownership or right of the tenant in relation to the leased property.
Violation of law	There must be sufficient evidence that this citizen does not own its property in the actual sense. As a rule, upon presentation of this of the statement It is necessary to submit a petition for imposing arrest to it to avoid possible problems in future.
Availability of a claim	This means that at the time of filing the claim, the property must be existing. In the event that its death or damage occurred, then the presence of a dispute in the order of the speech can not go. The copyright holder can only calculate on reimbursement of damages caused by this situation.

Terms of satisfaction

Legal practice has developed a circle of conditions, in the presence of which the WINDICATION claim filed by the plaintiff will be satisfied:

1. The defendant received a thing with the help of illegal actions. It is necessary to identify the presence or absence of the relationship of the parties by this or that agreement. If they are, the plaintiff does not have the right to demand a refund.
2. There was unfair acquirement. These are such cases when the thing was transmitted to the person who knew about the impossibility and illegality of its alienation, but consciously acquired it.
3. The property in any way ceased to be at its legal right holder. In the event that circumstances will be revealed, indicating that a citizen voluntarily gave a thing, then the claim will not be satisfied.

There is a deviation from these three conditions.provided for in legislation. It is associated with special objects - values \u200b\u200brecognized securities In accordance with banking rules and money.

So, when you retire them from the possession of the eligible owner, they are not subject to return, since they are not individually identified. This rule is valid only in cases of conscientious acquisition and gratuitous transfer conditions.

Participants of the dispute

As with any other dispute in the Wine Covenant, there are two main subjects - the plaintiff and the defendant:

1. Plaintiff - These are citizens or organizations that are according to the rules of civil legislation by the authority owners - title. This is a person who has one of legal rights: Property, maintenance, management, rental rights and other.
2. Defendant According to this dispute, any person who has seen property in an illegal order. Often they are the unfinished acquirer. The illegality of owning a thing is proved by the lack of any act confirming the transfer or consent of the most titular owner.

Reference calculations

Civil Code of the Russian Federation is provided special order Calculations for the seizure of property that was acquired in illegally. Right to reimbursement and other compensation payments have both sides.

The plaintiff has the right to payments with the following features, which are determined depending on the type of owner:

The right to receive any kind of compensation have conscientious and unscrupulous owners. In compensation payments in this case, all that they have been spent on the content and maintenance of things.

Special place is given Improvements of the object of the Wonderful dispute. Under them are understood by such improvements that were intelligent and necessary for a period of time. If they can not be separated from the thing, the title owner reimburses costs, and if possible, the person who owned a thing can leave them in his property.

The term of lawsuit

Limitation of actions - This is a special legal phenomenon that is of paramount importance when submitting any suit. This is the term that gives the right to a subject of civil law to submit an application for courts.

It is counted from the moment the person learned or should have learn about the violation of rights. By general rule, It is equal to the 3rd year. However, in some cases, it is strictly established by law.

A total three-year term applies along the WINDICATION. Of particular importance should be given to the moment from which this period will be calculated. So, with the WINDICATION, it is calculated from the moment the person learned about the actual loss of property. This provision applies to property recognized by the driven. The estate applies the procedure for calculating from the moment the citizen learned about the violation of his right.

What is the difference from a negative claim

Windiculture and come from Roman legal conflicts. At that time, they were the main ways to protect the violated rights of subjects. The difference is as follows:

Thus, the main difference between a negative claim that he is aimed at protecting the right to use a citizen with his thing. He can also be filed as the owner and the owner, tenant and other persons.

How to make a vincedit

Before making a WINDICATION Suit, it is necessary to determine whether there are foundations for its submission and if there are - Stake up:

1. Initially filled with the "Capka Cap", which indicates the details of the court, as well as the index. It is necessary to write, who is the plaintiff, and who is the defendant.
2. After that, you must specify the name of the document: "WINDICATION SUBJECT".
3. The following describes the content of the claim, which sets out information about the property, as well as the very essence of the France. In this part, you must specify all the documents referenced by the plaintiff.
4. In addition, it is necessary to place an application to the suit, where all the documents submitted by the Court will be indicated.

Sample 2020.

The claim served in the order of vinegar consists of:

• indication of the court and the parties in the case;
• describing a part where the creature of the dispute is set;
• a petition in which a citizen sets out his request to court;
• an application in which all acts that have evidentiary importance are indicated;

When applying, you need to pay state duty. Its size is determined within the framework of the NC RF. So, its size is equal to 300 rubles, as we are talking about a requirement that has no evaluation.

Filled example

In the proletarian court of the Samara region
Ul. Soyfer, d.18. 300340.

Plaintiff: Filkina A.O
Samara, ul. Construction, d.3

Respondent: Friends Oh.
G. Samara, Strelekova D. 8

WINDICATIONSHIP

On November 30, 2020, I was sold a Renault car, blue, state. The number of the U001E citizen is friendly, which is confirmed by the contract of purchase between us. Friendly did not provide me with a car to use, the keys refused to give up, justifying it by the fact that the vehicle is faulty and after repair it will give it to me. Himself actively uses a car, which is confirmed testimony testimony Krasikov V.I, residing at ul. Mira, D.8. Witness Talka court hearing I undertake to provide.

Thus, based on the provisions of Article 301 of the Civil Code of the Russian Federation, I ask:

1. Oblige the defendant to transfer me a car for use
2. Remove me incurred costs for forced rental vehicle.

Application:

1. Receipt of payment of state. duties.
2. Copy of the claim 1 thing.
3. Copy of contract purchase - sales.
4. Calculation of expenses incurred by me.

Arbitrage practice

The consideration of the imaging disputes in court is constantly. So, for example, the decision of the Crimean Court was determined from whom the property remains, which is the subject of the dispute in the order of vinegar. The plaintiff appealed to this requirement to court and provided the necessary evidence in the form of a contract confirming its right. The court considered the arguments of the parties, came to the conclusion that the lawsuit should refuse, as there is a court decision on the recognition of an agreement concluded between the parties, invalid.

The court of the Kemerovo region considered the case on the suit of a citizen of G. to a citizen K. On withdrawal from its unlawful possession of the vehicle. In proof of its rightness, the plaintiff brought the contract of purchase - sales, as well as the testimony of witnesses. The defendant insisted that he had long gave the plaintiff, who now slanders him for the sake of benefits. The arguments of the defendant in court were not confirmed. The court satisfied the lawsuit of a citizen K.