The inviolability of property was first enshrined in the Basic Laws of the Russian Empire, introduced in 1906. In the Constitution of the RSFSR of 1937, the basis of the Soviet state was proclaimed socialist public property. This situation continued until 1993, until the adoption of the new Constitution. The inviolability of private property is guaranteed by the state today. This is stated in part 1 of article 35 of the Basic Law. Let us further consider the features of the principle of inviolability of private property.
General information
Modern scholars use different approaches to the interpretation of the concepts of "inviolability of private property" and "freedom to exercise the rights of the owner." The Constitutional Court also gives a lot of clarification on these issues.
In a general sense, the inviolability of private property is considered as a state of protection against any encroachment, as a legislatively prohibited prohibition on the commission of any actions contrary to the will of the owner. It is recognized as a guarantee of individual freedom, self-determination, autonomy. The right to inviolability of private property ensures the realization of other freedoms and human and civil rights. The fact is that without it, society will not be able to limit power. In this regard, according to some jurists, it is not enough to simply say that the Constitution contains a provision on the inviolability of private property. The law in Russia guarantees precisely the inadmissibility of attacks by third parties, including the state. The inviolability of property implies a ban on unlawful interference in the process of realization by a subject of his legal rights.
Key Aspects of the Concept
Two aspects of the inviolability of private property should be distinguished. First, we need to talk about the right of a person to be protected. Secondly, we are talking about the actual state of property of a subject protected by the state. It is ensured through participation in legal relations, reflecting the permissible limits of external intervention.
Features of concepts
According to O. E. Kutafin, the right to immunity acts as a legal form of mediation of immunity as such. This conclusion is similar to the statement of V. A. Patulin. He said that immunity, regarded as a factual state, appears in the unity of existing legal forms and social relations, reflecting some aspects of this immunity.
It is necessary to clearly understand the nuances of law enforcement. The restriction of the inviolability of private property (both illegal and lawful) leads to a restriction of the right of the owner. In other words, the subject is deprived of the opportunity to freely dispose of his property. However, while limiting the inviolability of private property, the owner is guaranteed protection against unlawful encroachments.
Normative Content of Immunity
Attempts to determine it are made in the framework of constitutional law science and judicial practice of the Constitutional Court. The Constitutional Court concluded that the normative content of inviolability of private property includes guarantees to ensure the owners of free use of their property, stability of legal relations arising from this, inadmissibility of arbitrary seizure of objects or unjustified restriction of the rights of subjects.
G. A. Gadzhiev, taking as a basis the principle established in part 2 of article 8 of the Constitution, and the provisions of paragraph 4 of Art. 212 of the Civil Code, includes in the legal content of the concept under consideration the condition that the legal capabilities of all legal owners are protected in the same way.
From the foregoing, the following conclusions can be drawn. The principle of immunity includes:
- Non-interference in the process of realization by the owner of his rights.
- Protection of legal opportunities of owners and protection of property.
- Inadmissibility of unreasonable seizure of objects or arbitrary restriction of the rights of the owner.
Explanations
Non-interference in the exercise by the owner of his rights implies the obligation of the state power to ensure a certain isolation of the subject and his property from other persons by fixing the prohibitions in the legislation and determining the status of the person as the owner.
The protection of property and rights is carried out through the application by state bodies and public associations of a set of measures aimed at preventing infringement of the interests of subjects. The norms fix the tools and mechanisms that ensure the elimination of the causes of violations, obstacles for the owners to exercise their legal capabilities. The protection of rights and property, thus, contributes to the establishment of normal, equal relations.
Property protection from encroachment is carried out by state bodies, local authorities and their officials. It aims to restore the violated or contested rights of the owners. Non-governmental institutions also take part in protecting property.
Inadmissibility of arbitrary seizure of property or disproportionate restriction of the rights of the owner
These elements of immunity are most attractive to researchers.
The consolidation of certain restrictions in the legislation may be caused by the need to ensure the stability of property relations and develop them within the framework permitted by the Constitution and other regulatory acts. In accordance with Art. 55 of the Basic Law, the rights of the owner can be limited only by federal legislation and only to the extent that it is necessary to protect the constitutional order, health, morality, legitimate interests, freedoms of other entities, as well as to maintain the defense capability and security of the state.
The essence of the limitation
In the legal literature there is no single approach to the definition of this concept. Some authors believe that the restriction of the rights of the owner consists in the removal of certain powers. Others believe that competence, which should be limited, is not excluded from the content of rights. What does it mean? This means that the legal owner can exercise subjective law to the extent that it is permissible under the existing restriction. It seems that the second approach is more convincing. The fact is that the restriction itself implies some difficulties, deterrence in the exercise of rights. According to V.P. Kamyshansky, the restriction does not exclude certain powers, but only narrows the possibilities of a legitimate owner.
Conclusion
As the Constitutional Court points out in its decisions, human rights can be limited only to the extent that the law permits to ensure the necessary recognition and respect for the interests of other entities, protect state security, maintain public order, prevent violations of regulatory requirements, protect life and health. It is important at the same time to prevent the transformation of prohibitions into an unconstitutional diminution of rights. To do this, the conditions for establishing a restriction must be observed. Among them there is a risk of harming the interests of the state, society and other citizens, the proportionality, unambiguity and clarity of the wording of the prohibitions.