Legal regime of land
The concept of "legal regime of land" is widely used in legislation1, scientific literature2 and has become established. However, there is no legal definition of this term in the legislation. At the same time, in environmental law science, there are quite a few approaches to defining the content of this concept. Let us consider some of them.
As noted by S.A. Bogolyubov, the legal regime of land is determined by a set of rules for their use and inclusion into civil circulation, protection, accounting and monitoring established by land, urban planning, forestry, water, nature conservation and other legislation, mineral resources legislation, and applies to lands of a certain category3.
A.K. Golichenkov defines the legal regime of land as a system of elements, including: a) principles applicable to the entire set of legal norms regulating relations concerning the use and protection of lands of a particular category; b) composition of subjects of rights to lands of this category; c) procedures for the emergence and termination of rights and obligations of subjects of rights to lands of this category; d) sanctions for violating legal norms regulating relations concerning the use and protection of lands of a particular category; The permitted use of land is determined based on their allowed usage4.
According to O.I. Krassov, the legal regime of land (all lands, individual categories and their types) represents a definition in legislation of the content of ownership rights, other rights on land plots, management of use and protection of land, measures for land protection, expressed in the rights and obligations of persons using land plots through establishing the basic purpose of land, zoning, restrictions on rights, public servitudes, and determining permitted use5.
On the other hand, I.A. Iconitskaya considers the legal regime of land as behavior that is possible and obligatory towards land established by norms of law6.
A significant contribution to the study of the legal regime of land has been made by such Soviet scholars as G.A. Aksenenev7, I.I. Evtykhieev8, N.I. Krasnov9.
According to E.A. Galinskaya, a number of land relations (conclusion and performance of contracts aimed at the transfer of rights to land plots, taxation of land, etc.) can be implemented only in relation to a land plot10. A land plot is a part of the earth's surface whose boundaries are defined in accordance with federal laws (Article 11.1 of the Land Code of the Russian Federation). It should be noted that not all scholars agree with such a definition of a land plot11. However, in this case, it is considered appropriate to follow current legal norms.
Research on the legal regime of land plots often forms part of academic studies12, however scholars' positions regarding the content of the legal regime of land plots also lack uniformity13.
Scholars also differ in their positions regarding certain elements of the legal regime of land plots. For example, L.E. Bandorin justified the position that permitted use of land plots is a primary and indispensable element of the legal regime of land plots14. Whereas according to A.A. Minayeva, the main and mandatory element of the legal regime of a land plot is the property relationship15.
O.I. Krassov's position is that the term "land" is a generic term in relation to the term "land plot," and naturally, they are interrelated16. At the same time, upon formation of a land plot, it does not lose the characteristics of land as a natural object and natural resource. This is due to the fact that provisions of land legislation regarding rational use and protection of land apply to the land plot17. However, precisely at the moment of formation, the land plot becomes an object of property turnover18. From the moment of formation of a land plot, the legal regime applicable to the corresponding category of land, within whose boundaries this land plot is located, applies to it.
In addition, it is the legal regime of land, rather than land plots, that is determined based on their belonging to a certain category and permitted use in accordance with territorial zoning (subparagraph 8 of paragraph 1 of Article 1 of the Land Code of the Russian Federation). It should be emphasized that types of permitted use are established in relation to land plots19. Thus, the legal regime of land is determined, among other things, based on the type of permitted use of the land plot.
In Chapter III of the Land Code of the Russian Federation, whose name is denoted as «ownership of land», ownership of land plots is regulated20. This indicates that the content of the concept of «ownership of land» includes the concept of «ownership of land plots».
Thus, considering within the scope of this dissertation the significance of territorial zoning in determining the legal regime of land, we will also include the legal regime of land plots within the content of the legal regime of land. At the same time, just as a land plot, a territory may have boundaries defined in accordance with federal laws. However, a territory is not an object of property circulation.
As noted by Yu.A. Tikhomirov, in recent years, both in domestic science and practice, and in foreign and international science and practice, concepts that are close to the concept of «territory» have been applied. Free trade zones, free economic zones, a unified economic space, customs territory, border zone, area of stable cooperation, and others21. This position appears to be justified, since in Russian legislation and international law norms, the term «zone» is often understood as a territory within whose boundaries a special legal regime applies22.
In light of the above, it should be noted that the scientific categories of "land" and "territory" are closely related. The legal regime of land to a certain extent influences the legal regime of territory, just as the legal regime of territory affects the legal regime of land. These scientific categories are sometimes equated in legislation and scientific literature as objects of legal regulation.
For example, «classification of land according to its designated use into categories, in accordance with which the legal regime of land is determined based on their belonging to a certain category and permitted use in accordance with territorial zoning and requirements of legislation;» (paragraph 8 of part 1 of article 1 of the Land Code of the Russian Federation). «A differentiated approach to establishing the legal regime of land, according to which when determining their legal regime, natural, social, economic and other factors should be taken into account;» (paragraph 10 of part 1 of article 1 of the Land Code of the Russian Federation). «Adoption in territorial planning documents of boundaries of functional zones does not entail a change in the legal regime of land located within these zones» (part 12 of article 9 of the Urban Planning Code of the Russian Federation). "The boundaries of hunting grounds include lands whose legal regime allows for the conduct of activities in the field of hunting" (paragraph 1 of Article 7 of Federal Law No. 209-FZ dated July 24, 2009 "On Hunting and on Conservation of Hunting Resources and on Amendments to Certain Legislative Acts of the Russian Federation" // RSZ RF. 2009. No. 30. Art. 3735). ↩
See, for example, Aksenenev G.A. Legal Regime of Agricultural Lands // Agriculture and Law in the USSR. Moscow, 1977; Anisimov A.P. Theoretical Foundations of the Legal Regime of Settlement Lands in the Russian Federation: Abstract of Dissertation ... Doctor of Juridical Sciences. Saratov, 2004; Balezin V.P. Main Problems of the Legal Regime of Rural Settlement Lands: Abstract of Dissertation ... Candidate of Juridical Sciences. Moscow, 1972; Balezin V.P. Legal Regime of Urban Development Lands: Dissertation ... Candidate of Juridical Sciences. Moscow, 1960; Bedova E.S. Legal Regime of Settlement Lands: Abstract of Dissertation ... Candidate of Juridical Sciences. Moscow, 2012; Bogolepov R.D. Legal Regime of Industrial and Transport Lands: Abstract of Dissertation ... Candidate of Juridical Sciences. Moscow, 1964; Evtykhiev I.I. Regulation of Land Relations in Cities. Gorky, 1929; Erofeev B.V. Legal Regime of City Lands. Moscow, 1976; Galinovskaya E.A. Application of Land Legislation: Problems and Solutions: Scientific-Practical Guide. Moscow, 2012; Land and Law: A Guide for the Russian Landowner / Ed. by S.A. Bogolyubov. Moscow, 1997; Zolotova O.A. Legal regime of land in protective zones: abstract of dissertation ... candidate of legal sciences. Moscow, 2013; Iconitskaya I.A. Land Law of the Russian Federation. Moscow, 1999; Krassnov N.I. Theoretical foundations of the legal regime of special-purpose lands in the USSR: abstract of dissertation ... doctor of legal sciences. Moscow, 1966; Krassov O.I. Concept and content of the legal regime of land // Ecological law. 2003. No. 1; Lisina N.L. Legal regime of settlement lands: abstract of dissertation ... candidate of legal sciences. Moscow, 2003; Minina A.A. The concept of "legal regime of land" and its significance in land law // Legal issues of real estate. 2005. No. 1; Minina E.L. Permitted use of land plots: issues of establishment and change // Journal of Russian Law. 2012. No. 1. P. 62 - 67; General theory of Soviet land law. Ed. by N.A. Syrodoyev. Moscow, 1983; Sivakov D.O. Legal regime of water fund lands: dissertation ... candidate of legal sciences. Moscow, 2004; Tarasenko O.V. Legal regime of transport lands. Moscow, 2009; Trifonov A.S. Civil law regime of industrial lands: abstract of dissertation ... candidate of legal sciences. Volgograd, 2006; Umerenko Yu.A. Some problems of the legal regime of reserve lands // Modern Law. 2012. No. 7. P. 74 - 79; Fatkulлина D.F. Legal regime of land of environmental protection purpose: diss... candidate of legal sciences. M., 2006. ↩
Land and Law: A Guide for Russian Landowners / Ed. by S.A. Bogolyubov. Moscow, 1997. Pp. 34 - 35. ↩
Golichenkov A.K. Environmental Law of Russia: Dictionary of Legal Terms. Moscow, 2012. P. 299. ↩
Krassov O.I. The Concept and Content of the Legal Regime of Lands // Environmental Law. 2003. No. 1. ↩
Ikonitskaya I.A. Land Law of the Russian Federation. Moscow, 1999. P. 181. ↩
In the opinion of G.A. Akseneneck, determining the legal regime of any category of land means, first, defining these lands as an object of this land relationship, second, determining the circle of land users of these lands, establishing their rights and obligations, third, identifying the order of state management of these lands, and finally, fourth, indicating those forms and measures of liability that are defined by law for users (Akseneneck G.A. Legal Regime of Agricultural Lands // Agriculture and Law in the USSR. Moscow. Juridical Literature. 1977. P. 55.). ↩
In the opinion of I.I. Evtyukeev, under the general legal basis - state ownership of land - there exist different, non-overlapping in scope land regimes for individual categories of land. A land regime is understood as the status of rights and obligations of land management bodies with respect to a particular category of land, that is, the performance by land management bodies of basic functions - administrative, judicial, and regulatory (Evtyukeev I.I. Regulation of Land Relations in Cities. Gorky, 1929. P. 1.). ↩
In the opinion of N.I. Krasnov, the legal regime of the state land fund should be understood as the established by norms of Soviet law order of proper behavior in relation to land as an object of exclusive state ownership, land use rights and legal protection, aimed at ensuring its rational use as a universal condition of labor and main (primary) means of production (Land Law / Ed. by G.A. Aksenchenko. Moscow, 1969. P. 250.). ↩
Galinskaya E.A. Application of land legislation: problems and solutions: scientific and practical guide. Moscow, 2012. P. 61. ↩
In the opinion of O.I. Krassov, "Violation of land often relates to intrusion into the underground space, into the subsoil. In some cases, law does not recognize such actions as use of subsoil, in others - considers them as subsoil usage. Therefore, it is necessary to obtain a license for the right to use subsoil, to formalize a mining or geological concession. Violation of land leads to the fact that from the legal standpoint, the surface of the land on the plot is destroyed, for example, during open-pit mining, construction of underground structures not related to the extraction of minerals, such as underground shopping complexes, underground parking lots, etc. In this regard, it is unlikely justified to use the term "surface" in the considered legal concept" (Krassov O.I. Land plot - the basis of the conceptual apparatus of land law // Ecological Law. 2011. No. 4. Pp. 4 - 12.). ↩
See, for example, Anisimov A.P., Melikhov A.I. The Legal Regime of Land Plots. A New Inter-Industry Approach to the Relationship Between Civil and Land Law. // Right and Economy. 2008. No. 12; Bandorin L.E. Permitted Use of Land Plots: diss.… Candidate of Juridical Sciences. Moscow, 2011; Bugrov D.S. The Legal Regime of Land Plots as Real Estate: diss.… Candidate of Juridical Sciences. Saratov, 2004; Gerasin S.I. The Legal Regime of Land Plots and Other Real Estate Objects Located Thereon // State and Law. 2006. No. 5. P. 118 – 123; Kichigin N.V., Leon'tev A.E. The Legal Regime of Land Plots Located Within the Boundaries of Water Protection Zones and Coastal Protective Strips // Ecological Law. 2007. No. 4; Kravchukova T.V. Civil-Legal Regime of a Land Plot: diss.… Candidate of Juridical Sciences. Moscow, 2006; Mininaeva A.A. Ownership Relations as the Main and Mandatory Element of the Legal Regime of a Land Plot // Ecological Law. 2005. No. 6. ↩
M.G. Piskunova's position is that the legal regime of a land plot is determined by: transferability (Article 129 of the Civil Code of the Russian Federation, Article 27 of the Land Code of the Russian Federation, Forest Code of the Russian Federation, Water Code of the Russian Federation); category of land - its intended purpose (Articles 1, 7 of the Land Code of the Russian Federation, Law on Circulation of Agricultural Land); permitted use of the plot (Articles 1, 7 of the Land Code of the Russian Federation); territorial zone and urban planning regulations (for settlement lands) (Urban Planning Code of the Russian Federation, Article 85 of the Land Code of the Russian Federation) (Piskunova M.V. Cadastre - the head of everything // Business Advocate. 2003. No. 24. Access mode: «Consultant Plus» system.). D.S. Bugrov notes that the legal regime of land plots must be determined and disclosed in accordance with the categories of land established by land legislation. The legal regime of land plots is revealed as an independent comprehensive legal institution, as a set of legal norms in the field of use and protection of land. One of the most important characteristics (criteria) of the legal regime of land plots is their primary intended use, provided in accordance with the features of land categories (Bugrov D.S. The Legal Regime of Land Plots as Real Estate: Diss. ... Candidate of Juridical Sciences. Saratov, 2004.). According to D.V. Kozlov, the legal regime of land plots as a private law category includes: cadastral survey (determination of boundaries) and registration of land plots as objects of land and civil relations; the circle of holders of property and obligation rights on land plots, their rights and obligations; civil liability for violation of legislation (Kozlov D.V. Comprehensive (complex) legal regime of land plots // Garant System. 2012.). ↩
Bandyrin L.E. Permitted Use of Land Plots: Dissertation ... Candidate of Juridical Sciences. Moscow, 2011. P. 42. ↩
Mininaeva A.A. Ownership relations as the main and mandatory element of the legal regime of a land plot // Ecological Law. Moscow, 2005. No. 6. ↩
Krassov O.I. A land plot - the basis of the conceptual apparatus of land law // Ecological Law. 2011. No. 4. P. 4 - 12. ↩
"Formation of land plots should not lead to inclusions, insertions, broken boundaries, checkerboard patterns, impossibility of placing real estate objects and other shortcomings that hinder the rational use and protection of land, as well as violate the requirements established by this Code and other federal laws" (paragraph 6 of article 11.9 of the Land Code of the Russian Federation). ↩
"Real estate (immovable property) includes land plots, subsoil plots and everything that is firmly connected to the ground, i.e., objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, and unfinished construction objects" (paragraph 1 of Article 130 of the Civil Code of the Russian Federation). ↩
"urban planning regulation - permissible uses of land plots within the boundaries of the relevant territorial zone, as well as everything located above and below the surface of land plots and used during their construction and subsequent operation of capital construction objects, maximum (minimum and/or maximum) sizes of land plots and maximum parameters of permitted construction and reconstruction of capital construction objects, as well as restrictions on the use of land plots and capital construction objects;" (paragraph 9 of Article 1 of the Urban Planning Code of the Russian Federation). ↩
See, for example, paragraph 1 of article 15 of the Russian Federation Land Code, according to which land plots acquired by citizens and legal entities on grounds provided for by the legislation of the Russian Federation are the property of citizens and legal entities (private property). ↩
Legal Space and the Human: Monograph / Eds. Yu.A. Tikhomirov, E.V. Pulyaeva, N.I. Khlyudeneva. Moscow, 2012. p. 13. ↩
For example, an emergency situation zone is a territory where an emergency situation has occurred (paragraph 4 of article 1 of the Federal Law dated December 21, 1994, No. 68-FZ "On Protection of Population and Territories from Emergency Situations of Natural and Technological Nature" // RSZ RF. 1994. No. 35. Art. 3648.). An emergency population alert zone is a territory that is at risk of the occurrence of rapidly developing dangerous natural phenomena and technological processes posing an immediate threat to the lives and health of people located on it (paragraph 11 of article 1 of the Federal Law "On Protection of Population and Territories from Emergency Situations of Natural and Technological Nature"). The term "residential zone" means a specially equipped territory where special traffic rules apply, and entries and exits are marked by appropriate signs (Convention on Road Traffic (concluded in Vienna on November 8, 1968) // Treaty Series. Volume 1732. New York: United Nations, 1999. P. 396 - 587.). Water protection zones are territories adjacent to the shorelines of seas, rivers, streams, canals, lakes, reservoirs, and on which a special regime for carrying out economic and other activities is established in order to prevent pollution, littering, siltation of the aforementioned water bodies, depletion of their waters, as well as preservation of the habitat of aquatic biological resources and other objects of animal and plant life (Part 1 of Article 65 of the Water Code of the Russian Federation dated June 3, 2006 No. 74-FZ // RSZ RF. 2006. No. 23. Art. 2381 (hereinafter - WCRF)). ↩
Морфология
Род
Понятие «правовой режим земель» мужского рода.
Склонение и число
| Падеж | Единственное число | Множественное число |
|---|---|---|
| Р | правового режима земель | правовых режимов земель |
| Д | правовому режиму земель | правовым режимам земель |
| В | правовой режим земель | правовые режимы земель |
| Т | правовым режимом земель | правовыми режимами земель |
| П | правовом режиме земель | правовых режимах земель |