The claim of invalidation of the act of state registration of...

An action to invalidate the act of state registration of rights (registered right) for real estate

What should be understood as an act of state registration?

The definition of state registration is given in paragraph 1 of Art. 2 of the Law on Registration of Rights to Real Estate. According to this rule, state registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state of origin, restriction (encumbrance), transfer or termination of rights to real estate in accordance with the US Civil Code. Separately, the law states that state registration is the only evidence of the existence of registered law. The registered right to immovable property can only be challenged in court. A similar provision is contained in Cl. 6, Art. 8.1 of the Civil Code of the United States

Is the act of state registration creating civil law or confirming it?

The grounds for the appearance of civil rights and duties are listed in art. 8 of the US Civil Code. Among them are indicated both transactions and acts of state bodies, but only those that are provided by law as the basis for the emergence of civil rights and obligations. However, neither the US Civil Code nor the Law on Registration of Rights to Real Estate name registration act as the basis for the emergence of civil rights and obligations. Moreover, the Law on Registration of Rights to Real Estate names an act of state registration as an act of "confession" and Confirmation & quot ;. And no matter how attractive the reconciling the concept of the meaning of both elements, according to which the act of state registration and the transaction are elements of legal composition that entail the emergence of a property right with the determining role of the first element (registration act), it should not mislead anyone. The correctness of the conclusion about the decisive significance of state registration is questioned by posing the question of the dependence of the elements on each other. It is known that if a transaction requiring state registration is made in the proper form, but one of the parties evades its registration, the court is entitled, at the request of the other party, to make a decision on the registration of the transaction. In this case, the transaction is registered in accordance with the decision of the court (paragraph 2 of Article 165 of the Civil Code of the United States) (and let it be here about the registration of a transaction, but not the right of ownership, this still does not change the legal nature of registration). Is it possible to come up with a counter example - when there is a registration of a non-existent transaction and the court obliges the parties to conclude such a transaction only because there is information about its registration? Even with a very rich imagination it is difficult to think of something like this.

Thus, the act of state registration is not the basis for the emergence of civil rights and obligations. Its purpose is the recognition and confirmation by the state of the right, arisen by virtue of the ground provided for in Art. 8 of the US Civil Code. This may be a transaction, including a contract, for example, a contract of sale and purchase, as well as an act of a state body or a local government body, for example, a decree of the head of a local government body on granting a land plot on the right of ownership. And, finally, one can not ignore the fact that transactions are actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations (Article 153 of the Civil Code of the United States). Whereas citizens (individuals) and legal entities acquire and exercise their civil rights by their own will and in their interest (clause 2 of Article 1 of the Civil Code of the United States). If we give priority to state registration, we must recognize that transactions, as well as rights requiring state registration, are not dependent on the will of participants in civil legal relations, but on the will of state bodies. We emphasize that state registration is vital, but it is not necessary to consider it as the basis for the emergence of civil rights and obligations.

From these positions, it is quite accurate to determine the state registration given by the Constitutional Court of the USA in Resolution No. 154-0 of July 5, 2001: "State registration is a formal condition for ensuring state, including judicial, protection of the rights of a person arising from contractual relations, the object of which is immovable property, is called upon only to certify by the state the legal force of the relevant legal documents. Thus, state registration creates guarantees of proper fulfillment of obligations by the parties and, consequently, contributes to the consolidation and stability of civil turnover in general. It does not affect the very content of this civil law, does not limit the freedom of treaties, the legal equality of the parties, the autonomy of their will and property independence, and therefore can not be regarded as an unacceptable arbitrary interference of the state in private affairs or restriction of human and civil rights, including those guaranteed by the Constitution of the United States of the right to own, use and dispose of property on legal grounds, as well as freedom of economic activity and .

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