Environmental and Civil Law: The Limits of Mutual Expansion
Natural Resources Law and Civil LawThe delineation of the spheres of operation of the civil and other branches of United States law and legislation is currently one of the most acute problems not only of environmental, environmental law, but also of the general theory of law: mutual expansion is facilitated, on the one hand, by the environmentalization of all branches of law, and on the other hand, the subordination of the rules of civil law to the turnover of all things, including natural objects included in this turnover.
The relationship between environmental and civil law and US law is all the more important because a number of norms of environmental codes and US laws provide, for example, the prohibition of privatization of certain property in isolation from the land, the conclusion of a number of civil law contracts and other transactions concerning natural objects according to the rules stipulated in the Civil Code.
Environmental provisions of civil legislation are conceptual and relevant to the environment: land and other natural resources can be alienated or transferred from one person to another in other ways, to the extent that their circulation is permitted by the laws on land and other natural resources (Art. 129 GK); to immovable things (real estate) are land plots and everything that is firmly connected with the land, that is, objects whose movement without disproportionate damage to their destination is impossible (Article 130 GK); possession, use and disposal of land and other natural resources, to the extent that their turnover is permitted by law, is exercised by their owner (in respect of mineral resources and many other natural resources and objects - only by the state) freely, if this does not damage the environment and violates the rights and legitimate interests of others (Article 209 of the Civil Code).
Following the construction of the fate of the main thing - the land is confirmed by judicial practice. According to the decision of the Presidium of the Supreme Arbitration Court of the USA of April 15, 2008, on the lawsuit that the obstruction was not caused in repair works of the non-residential building belonging to the plaintiff on the property right of the non-residential building and the obligation to admit the defendant to the protected construction site, the claimant was sent for a new consideration, site has the right to repair and restore the building, and the actions of the defendant, impeding the restoration of the building, violate the rights of the plaintiff.
It seems that the legislator should not go away from the hammer formula, which was justified in theory and in practice, Part 3 of Art. 129 Civil Code, drawn from Western European civil law. This formula is based on Part 1 of Art. 9, part 2 and 3 of Art. 36 of the Constitution and receives a subsequent reflection in Art. 209 CC. Part 3 of Art. 3, etc. ZK, Part 2 of Art. 3 LC, part 2 of Art. 4 VC and in other federal natural resources laws.
Civil law, according to clause "about" Art. 71 of the Constitution, belongs to the jurisdiction of the United States, land, natural resource, nature protection, according to clause "in", "d", "to" Part 1 of Art. 72 of the Constitution, to the joint jurisdiction of the United States and the subjects of the United States. The delimitation of land, other natural resources and related property powers between the federation and its subjects directly depends on the constitutional delimitation of the subjects of jurisdiction between them, the delimitation and interaction of the environmental, civil and other branches of United States law and legislation.
The choice of the relevant norms and requirements of the branches of law and legislation in law enforcement is of no small importance for the regulation of public relations, the determination of real and other rights to natural resources, to environmental management objects, and to resolve environmental and other disputes. The ratio of civil and environmental resources, of all environmental legislation, largely determines the further state of the natural habitat, the quality of the environment and the organization of rational use of natural resources.
Natural resources law, the sub-sector of environmental law, is the most closely related to civil law, since land plots, some other natural objects, are the most widespread and widespread object of civil turnover in comparison with other natural resources. The problem of combining natural resources, especially land, law and legislation and civil law and legislation, has a long history and is currently of concern not only to specialists but also to the general public, tens of millions of landowners and should not be exhausted by the simultaneous implementation of the concepts.
Discussions began as early as the beginning of the 20th century, when the discipline "Land Law" was introduced in the land surveying institute and land survey colleges. G. Shershenevich, K. Pobedonostsev and other well-known civilians of that time managed to express the special position of the land plots among the turnover of other things. Abolition of private ownership of land forever at the request of the Socialist-Revolutionaries in October 1917 led to the establishment of criminal liability for any transactions with land, provided for a period of seventy years. In the context of the topic of determining the relationship between natural resources and civil law, in the absence of land purchase and sale, the main theoretical problems of the second quarter of the 20th century. became the legal regulation of land use mainly for agricultural purposes and organization of protection and rational use of forests, waters as objects exclusively connected with land and regulated by land law.
At the moment, the main debate over private ownership of land and proposals for referendums about its purchase and sale have died down; tens of millions of owners, tenants and owners of land plots have issued their rights to them. The legislator has defined the possibilities, limitations and limits of the turnover of land and forest areas, water objects that are privately owned, although here there are discussion issues requiring independent discussion and legislative decision. Among them - the extent and extent of the restriction of the civil turnover of lands provided for in Art. 56, 56-1, 94-100, etc. ZK, on the purchase and sale of forests located on the lands of the forest fund and lands of other categories; on the protection of water bodies located on land plots in private ownership; on strengthening the legal protection of lands of specially protected natural areas; on the restoration of municipal environmental and the development of municipal land control; on a full state environmental review of projects that may have negative consequences for land, other natural resources and the environment.
In conditions of active, during one and a half decades of permanent change, the so-called "perfection", of United States environmental resources, especially land and environmental legislation, civil legislation is an island of stability that can not be overestimated. Its impact on the entire environmental, environmental and other sectors of United States legislation continues to be dominant, and if not exclusive, but restraining numerous additions to the environmental legislation in the Land Code, the VC, the LC, the Federal Law on Environmental Protection, the animal world, and the subsoil.
It is necessary to determine in principle the question of the correlation between civil and nature resources, environmental law. Better than envisaged in Part 1 of Art. 1 ZK, and this can be attributed to other natural objects put into civil circulation, it is difficult to say, namely: the earth is the basis of life and human activity, a natural object, the most important part of nature, a natural resource and simultaneously - real property, the object of law property and other rights to land; regulation of the use and protection of lands is carried out in the interests of the whole society while ensuring the guarantees of each citizen for the free possession, use and disposal of his land plot; when regulating land relations, the principle of delimitation of the operation of the norms of civil legislation and norms of land legislation in the part of regulating relations on the use of land is applied.
Repeatedly a number of deputies made efforts to abolish part 3 of Art. 3 ZK (mediated by the above-mentioned norms of the Constitution and the Civil Code), according to which the property relations for the ownership, use and disposal of land plots, as well as for the transactions with them, are regulated by civil legislation, unless otherwise provided by land, forestry, water legislation, subsoil legislation, on environmental protection, special federal laws. However, the legal community and the Federal Assembly of the USA does not change this fundamental for understanding the correlation of land and civil legislation of the norm.
Noteworthy is the notion of a special law, which, according to generally accepted principles of law, in the event of discrepancies between the norms of laws, should have priority in relation to the general law. It is reasonable to consider civil law establishing general rules for the implementation of property relations, a more general law (on issues of property turnover!) In relation to laws on natural resources and facilities whose property turnover should be carried out according to the general rules of the Civil Code with exceptions established by special laws on these natural resources and objects. Special laws that have a priority character in relation to the general law - the Civil Code are the laws on joint-stock companies, on cooperation, on agricultural cooperation, on the state registration of rights to real estate and transactions with it, etc. Special laws include VC, LC and others federal natural resources laws.
The discussion of the correlation between civil and environmental law and legislation as formally equivalent branches of United States law and legislation as a general and special methods and directions for regulating property relations, as a predominantly private and predominantly public regulatory principle, as well as their delineation, has been devoted to a number of works, their common and special features. Without repeating them, it is possible to name some properties of lands and other natural objects that are currently being actualized as specific things: the non-handmade, mainly the origin of land, forest areas and other natural objects; their non-replaceability, non-transferability, irreplaceability, inconsistency and non-use until the end; predominantly public nature of nature use and goals, directions, ways of protecting the environment; numerous restrictions and encumbrances on the turnover of natural objects, complete exclusion of subsoil plots and some other natural objects from civil circulation; division of land into categories for their intended use, land zoning, classification of forests, subsoil, reservoirs.
The system of land, natural resource, environmental law and legislation has been formed over a century; changing it will entail a breakdown of legal relations that need stabilization, and not in rebuilding and reloading. One should not forget the difficult decade preceding the adoption of long-suffering acting ZK, VK, LC, during which the positions of the president, government, chambers of parliament and their factions competed. It is optimal to combine at present the civil legal basis for regulating the turnover of natural objects in circulation with specific environmental regulations and restrictions that govern the use of natural resources and environmental protection.
Various real legal measures have been implemented recently to ensure property rights to land plots and other natural objects - the state cadastre of land plots and other natural objects is included in the state cadastre of other real estate objects while preserving their specifics; there is a unified state body for registration of lands, other natural objects and other real estate objects - Rosreestr.
A model of a single real estate object is created, which occurs when the identity of the owner of the land plot and the owner of the building, construction, other immovable property located on it: if the owner of the building is not the owner of the land plot occupied by this object, then the land legislation and practice of its application presuppose his right to use such a site for passage to the structure belonging to him. If there are problems, it is not due to a lack of real rights to natural objects and other real estate provided for by law, but in the shortcomings of its implementation; the law currently presupposes the registration of the right of state, municipal and private ownership of natural objects.
In part 3 of Art. 36 of the Constitution refers to the conditions and procedures for the use of land, determined on the basis of federal law, and in numerous regional laws on the use and protection of land in the United States, on the circulation of agricultural land (the last word belongs to the legislator); it is the land as an object of legal regulation that has so many natural, geographical and other regional peculiarities that it is impossible to deprive the legislator of the opportunities to take into account these features and seems hopeless. Here we can state the merits of a combination of civil and natural resource legislation, in which regional lawmaking should not go beyond the scope of the US competence establishing general rules of conduct in property relations, and use joint and own competence in the field of regulation of natural resources relations.
These theoretical reflections are basically confirmed by practice. The US Supreme Arbitration Court, having examined the applications of the Territorial Administration of the Federal Agency for Federal Property Management in the Chita Region and the State Institution "Chita District of Ketcha", in its decision of May 21, 2008, established: the territorial department of the Federal Agency for Federal Property Management in the Chita Region filed a lawsuit to the Limited Liability Company "Tantalus"; on recovery of losses that constitute the value of the land plot and formed from the illegal construction of a residential multi-apartment building on this land plot that is in federal ownership and granted for permanent (unlimited) use of the Chita KECh for defense needs.
As a result of actions to carry out construction work on the land plot of LLC in accordance with Art. 15, 1064 GK, art. 9, 62, 63 3 K there was a duty to reimburse the US in the revenue of the federal budget the amount of losses in the amount of the market value of the land. The following are subject to inclusion in the circle of circumstances that are subject to proof in the present case: the unlawful nature of the defendant's conduct, the violation of the norms of town-planning, land and other legislation, the presence of harm and its size, the causal relationship between the wrongful conduct of the harm-bearer and the consequences, the fault of the harm-bearer, the claimant, taking measures by the plaintiff, aimed at preventing or reducing the amount of losses.
The court found the defendant's arguments legitimate that at the time of the signing of the cooperation agreement and the start of construction, the Chita KECh possessed all the necessary documents sufficient for organizing and conducting the construction of a multi-apartment residential building stipulated by the US urban legislation. The defendant proved that he did not blame himself for causing losses in the form of real damage, connected with the actual loss of the land plot by the plaintiff. The absence of guilt is grounds for refusing to satisfy claims for damages in the form of real damages. It is not seen from the presented materials that the uniformity in the interpretation and application by the courts of the norms of the law, the rights and freedoms of man and citizen, according to generally recognized principles and norms of international law, international treaties of the United States, as well as the rights and legal interests of an indefinite circle of persons or other public interests are violated.
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