Subject and Method of Land Law. Land as an Object of Legal Regulation

General Provisions

Subject of Land Law

• Land relations refer to relationships regarding the use and protection of land.
• They are independent, vital, stable, and subject to control.
• Land is simultaneously regarded as a natural object, natural resource, and real estate.

Method of Legal Regulation

• Land law combines the imperative method (mandatory rules, public law) and the dispositive method (possibility of independent choice by participants, private law).
• The imperative method prevails, but flexible

Land as an object of legal regulation

• Land is protected as part of nature, used as a resource, and at the same time may be an object of property rights.
• Priorities are given to protection and rational use, while property interests operate within these frameworks.

Land law has an independent subject and a special method of regulation, combining public and private elements, and land as an object of law has a complex, multi-faceted nature.

We will now consider the above issues in detail.

Subject of Land Law

According to in the general theory of law, the criteria for dividing law into separate branches are the subject and method of legal regulation. If the subject answers the question of which relationships law regulates, then the method answers the question of how this regulation is carried out¹. In jurisprudential theory and practice, the terms "branch of law" and "branch of legislation" are used as non-identical. From a philosophical perspective, the system of law and the system of legislation relate to each other as content and form. The system of legislation is the expression of the system of law, its objective form[The main factor determining the difference between one branch of law and another is the subject of legal regulation, that is, a qualitatively homogeneous type of social relations regulated by the corresponding branch of law, their specificity[^3]. Social relations are relations between people concerning objects of the material world, related to their use[^4]. These relations have the following characteristics: 1) they are vital for a person and their associations; 2) they are volitional, purposeful (rational) relationships; 3) these are stable, recurring, and typical relationships; 4) these are behavioral relationships over which external control can be exercised (for example, by jurisdictional authorities)[^5]. Each branch of law has its own sphere of legal regulation, accordingly, and its own subject of legal regulation[^6].

Land legislation regulates relationships concerning the use and protection of land in the Russian Federation as a basis for the life and activities of peoples residing on the corresponding territory (paragraph 1 of article 3 of the Land Code of the Russian Federation). This norm

is based on the provisions of Part 1 of Article 9 of the Constitution of the Russian Federation, according to which land and other natural resources are used and protected in the Russian Federation as the basis of life and activities of the peoples residing on the corresponding territory.

Based on the above provisions of the legislation of the Russian Federation, it can be concluded that the subject of land law and legislation are land relations (i.e., relations arising in connection with the use and protection of land). Land relations, as a general rule, are not regulated by other branches of law. Norms of other branches of law (mainly

Civil and administrative law (as well as other branches of law) may regulate land relations to the extent that these relations are not regulated by land law (for example, in the area of filling gaps in land law regulation).

Land relations are: vital for a person and their communities; volitional, purposeful (rational); stable, recurring, and typical; behavioral, allowing for external control (e.g., by judicial authorities). Thus, land law has an autonomous subject of legal regulation.

It is important to note that in the literature, there are views expressed other views on the autonomy of land law. According to V.A. Dzorzortsev «… land relations have been divided into those regulated by civil and administrative law, so the grounds for recognizing land law as an independent branch of law no longer exist; now land has fallen within the scope of civil law, being an object of economic circulation»[^7]. This argument cannot be considered justified, since land has a complex legal regime and is simultaneously a natural object, a natural resource, and immovable property.

Method of Land

An additional basis for dividing law into branches is considered the method of legal regulation, representing a set of techniques and methods for regulating social relations, influencing human behavior[^8]. The most common and polar in their characteristics are the imperative and dispositional methods. The imperative method is based on subordination relations, the subordination of some legal subjects to others. It is characteristic of administrative and executive criminal law[^9]. The imperative****method provides for regulation of participants' behavior in legal relations through establishing a rule of conduct that must be unconditionally complied with. Participants in the corresponding legal relations are not entitled to change this rule of conduct at their own discretion. The imperative method represents the manifestation of public principles in law, and it is characterized by vertical relationships, also known as subordination relationships or power and subjection relationships.

Example of an imperative norm: "when adjacent land plots are merged, a single land plot is formed, and the existence of such adjacent land plots is terminated" (paragraph 1 of Article 11.6 of the Russian Land Code (ZK RF)). The cited provision provides for only one consequence of merging adjacent land plots. Participants in the relevant legal relationship do not have the possibility, at their own discretion, to change the consequences of merging adjacent land plots.

The dispositive method implies equality of parties and is applied in areas of private law (civil, labor, family)[^10]. The dispositive method provides for regulation of the behavior of participants in legal relations through establishing a rule of conduct that may be modified participants in legal relations at their own discretion, independently, within the limits defined by the corresponding legal norm. The dispositive method represents the manifestation of private principles in law; it is characterized by horizontal relationships based on the autonomy of will of the parties involved in the legal relationship. A dispositive norm can often be identified by the phrase "if otherwise provided in the contract." A dispositive norm allows the parties to provide for another order of regulation of the relevant relations in the contract. If the parties do not do so, the norm provided for by law will apply.

The dispositive method provides participants in legal relationships with the opportunity to independently determine possible courses of action. For example, a dispositive norm may provide for a certain rule of conduct and include the phrase «if otherwise not provided for in the contract». This allows parties to stipulate in the contract an alternative method of regulating the relevant relations; if the parties do not do so, the legal norm provided by law will apply. It is interesting that in both cases, from the moment of concluding the contract, this norm becomes imperative.

Example of a dispositive norm: *«it is permissible to combine a land plot encumbered with a mortgage,*with a land plot not encumbered by a mortgage. At the same time, the right of mortgage applies to the entire formed land plot, unless otherwise provided for in the agreement between the parties" (paragraph 6 of Article 11.6 of the Land Code of the Russian Federation). The cited provision provides for the autonomy of will of the participants in the relevant legal relationship, i.e., the parties may provide in the agreement for other consequences of merging the corresponding land plots. If the parties do not provide for such a provision in the agreement, the rule of conduct established by the legal norm shall apply.

The imperative method of legal regulation has a public-law nature; it is characterized by

Vertical relationships of power and subordination. The dispositional method has a private law nature; for it, horizontal relationships based on the autonomy of will of the parties to legal relations are characteristic.

Land law regulates the behavior of participants in land relations through a special combination of imperative and dispositional methods of influencing human behavior. The predominant method of influence on people's conduct in land law is the imperative one. In this regard, it should be noted that the method of land law is imperative-dispositional with the predominance of the imperative.

At the same time, new compositions of imperative and

dispositive modes of regulation. In public spheres where equality of parties traditionally does not exist, elements of private law increasingly penetrate, associated with the use of contractual and consensual procedures, while elements of public law are more widely present and applied in the sphere of private law. The necessity remains to search for an optimal combination of methods of legal influence[^11]. The doctrinal opposition between private and public law does not withstand the test of modern realities[^12]. For example, in the first and second parts of the Civil Code The Code of the Russian Federation, in the form of norms regulating certain types of contracts, contains about 1600 imperative and only about 200 dispositive provisions[^13], with dispositive nature being present in the sphere of criminal law regulation[^14].](#_ftn2)

Land law includes elements of both public and private law, legal institutes which have both sectoral (land law) and inter-sectoral legal nature (for example – legal liability for land violations).

Thus, land law affects

behavior of people is a combination of imperative and dispositive methods of legal regulation based on the understanding of land as a natural object, natural resource, and real estate.

Land as an Object of Legal Regulation

The principles of land legislation are defined in paragraph 1 of article 1 of the Land Code of the Russian Federation. Subparagraph 1 of the aforementioned article defines the principle of taking into account the significance of land as the basis of human life and activity. According to this principle, regulation of relations regarding the use and protection of land is carried out based on the understanding of land: 1) as a natural object protected as an important component of nature; 2) as a natural resource used as a means of production in agriculture and forestry, and the basis for conducting economic and other activities on the territory of the Russian Federation; 3) simultaneously as immovable property, an object of property rights and other rights to land.

The concept of land as a natural object[^15] is based on the fact that land is one of the components of the natural environment (Article 1 of the Federal Law of January 10, 2002 No. 7-FZ "On Environmental Protection"), subject to protection (the protection of land is addressed in Chapter II of the Land Code of the Russian Federation (ЗК РФ)).

The concept of land as a natural resource[^16] is based on the fact that land is the main means of production in agriculture and forestry.

The concept of land as real estate[^17] is based on the fact that land and other natural resources can be alienated or transferred from one person to another in various ways to the extent permitted by laws on land and other natural resources (paragraph 3 of Article 129 of the Russian Civil Code (GC RF)).

The aforementioned concepts about land are interconnected. This means that when regulating relations within the framework of one concept of land, we cannot ignore another.

Land-related legislation establishes priority for the protection of land as a key component of the environment and a means of production in agriculture and forestry over its use as real estate, according to which possession, use, and disposition of land are carried out freely by owners of land plots, provided this does not cause harm to the environment (subparagraph 2 of paragraph 1 of article 1 of the Land Code of the Russian Federation).

The combination of imperative and dispositive norms of land law unites the common object of legal regulation, which is land.

construction (point 1 of article 130 of the Russian Civil Code).

[1] The State and Law: textbook / ed. by A.S. Pigolkhin. M.: Yurait-Izdat, 2006. P. 356. [^2]: General Theory of Law and the State / ed. by V.V. Lazarev. M.: Yurist, 2001. P. 143. [^3]: Theory of the State and Law / ed. by A.S. Pigolkhin. M., 2006. P. 356–357. [^4]: Krassov. Ecological Law: Textbook. M.: Norma, 2008. P. 33. [^5]: Theory of the State and Law / ed. by S.S. Alekseev. M., 2004. [^6]: Vlasenko.

[1] Theory of the State and Law: Textbook. Moscow: Prospekt, 2011. P. 237. [^7]: Dzorzhevskiy. Issues of Improving Civil Law of the Russian Federation in Transition to a Market Economy // State and Law. 1994. P. 26. [^8]: Theory of the State and Law / ed. A. S. Pigolkhin. Moscow, 2006. Pp. 356–357. [^9]: Theory of the State and Law / ed. S. S. Alekseev. Moscow, 2004. [^10]: Theory of the State and Law / ed. [^11]: Theory of the State and Law in Science, Education, and Practice: Monograph / Editorial Board Chairman T.Ya. Khabriyev / Institute of Legislation and Comparative Law under the Government of the Russian Federation; Moscow State University of Law named after O.E. Kutafin (MGUPS). M., 2016. P. 285. [^12]: Theory of the State and Law in Science, Education, and Practice / edited by T.Ya. Khabriyev. M., 2016. P. 409. [^13]: Braginsky. V.V. Vitryansky. Contract Law. Book One: General

Provisions. Access mode: legal information system «ConsultantPlus». [^14]: Sumachev. Dispositive in criminal law (theoretical and applied analysis): abstract of dissertation … doctor of juridical sciences). Yekaterinburg, 2006. [^15]: Natural object - natural ecological system, natural landscape and elements composing them, having retained their natural properties (article 1 of the Federal Law dated January 10, 2002 No. 7-FZ «On Environmental Protection»). [^16]: Natural resources represent components of the natural environment, natural objects and

natural-anthropogenic objects used or which may be used in economic and other activities as sources of energy, production goods, and consumer items with consumer value (Article 1 of Federal Law No. 7-FZ dated January 10, 2002 "On Environmental Protection"). [^17]: Immovable property (real estate) includes land plots, subsoil plots and everything that is firmly connected to the earth, i.e., objects whose relocation without disproportionate damage to their purpose is impossible, including buildings, structures, and unfinished construction objects