Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

(4)The right to own property, to possess, use and dispose of such property both as a single person as well as together with others, the freedom to possess, use and dispose of land and other natural resources—the freedom to own real estate (Arts.34 and 35) and freedom of the land market (Art.36(2));

(5)Freedom of contract—the freedom to conclude civil law and other transactions (Art.35(2));

(6)The right to protection against unlawful competition (Art.34(2)); the freedom to engage in any entrepreneurial activity and other economic activity not prohibited by law in accordance with the principle that “all which is not prohibited by law is permitted” (Art.34(1)).

The constitutional principle of freedom of movement of goods, services, and financial funds (Art.8(1)) is also extremely important as it ensures a stable regime of economic circulation. The new Russian Civil Code and other new civil legislation are gradually developing and complementing this constitutional principle, guaranteeing stable economic circulation on the legal branch level. In essence, norms on charter capital, the perfor- mance of obligations, and liability for violation of one’s obligations serve precisely this aim.

The fundamental economic rights, proclaimed in Chapter 2 of the Constitution, are both of a public law and private law nature. From our point of view, these should not be considered simply as norms of either a state (public) or a civil (private) law nature.

In their public law aspect, constitutional norms regarding fundamental economic rights ensure the protection of private property and freedom of entrepreneurship as economic and social institutes that form the material basis for a certain degree of organization of state power. The private law content of such norms ensures the protection of the rights of specific owners and entrepreneurs.

The complex nature of fundamental economic rights—their dual, public and private law aspects—determine the particular nature of their action. Demonstrating their public law content, norms providing for fundamental economic rights act in the field of relations between the state and individuals. When such norms display their private law content, they actively combine with civil law norms to act in the field of private relations.

This way, the system of private law norms is more extensive than the system of civil law legal norms. In addition to civil law norms, the system of private law norms includes the following:

(1)Constitutional norms governing fundamental economic and private rights (taken in their private law aspect);

(2)Norms governing private law found in land, water, forestry and mining legislation and legislation on the mass media;

(3)Private law norms found in laws and other normative acts of Subjects of the Russian Federation adopted under both the joint jurisdiction of the Federation and its Subjects, as well as the jurisdiction of Subjects of the Russian Federation.

The possibility that civil law norms exist in laws of Subjects of the Russian Federation does not contradict the provision ofArticle 71(o) of the Constitution, according to which civil legislation falls under the jurisdiction of the

RussianFederation.OnecannotbutagreewithProfessorTolstoi,who—in expressing support for the idea we propose concerning distinguishing the concepts of “civil legislation” and “civil law”—confirms that “we cannot turn a blind eye to the fact that we cannot do without the appearance of civil law norms on the level of Subjects of the Federation”.1

The fact that precisely civil legislation and not civil law falls under the jurisdiction of the Russian Federation means that laws of the Subjects of the Russian Federation—adopted in the field of joint jurisdiction and also jurisdiction by Subjects of the Russian Federation—may contain norms which, according to their branch attributes, are considered civil law norms. Naturally, however, they may not contradict the norms of federal civil legislation.

The study of the relationship between constitutional and civil law norms in the mechanism of the legal regulation of public relations represents a topical issue in need of interdisciplinary research at the intersection of constitutional and civil law.

2. The mechanism of interaction between these norms proposes the development of constitutional provisions through civil legislation, i.e., the clarification of the number of subjects of constitutional rights, their au- thority and capacity to regulate proprietary and non-proprietary rights.

The interaction of constitutional and civil law norms should be of a mutual, dual nature, meaning that both lawmakers in the process of writing laws—as well as law enforcers in the process of applying consti- tutional provisions—need to take the provisions of civil legislation into consideration. Constitutional concepts such as “ownership”, “property”, “entrepreneurship”, “intellectual property” and others can be properly interpreted only by taking civil law norms into account. However, it is also

1Iu.K. Tolstoi, O chasti vtoroi Grazhdanskogo Kodeksa Rossiiskoi Federatsii, St. Petersburg 1996, 16.

necessary—when applying civil law norms—to take their constitutional interpretation into account.

Article 15 of the RF Constitution establishes that constitutional norms are direct action (priamoe deistvie)norms,whileArticle18confirmsthatthe rights and freedoms of persons and citizens operate proprio vigore. They define the purpose, content, and application of laws, the activities of the legislators and the executive as well as of local self-governing bodies, and they are also enforced by the courts.

In the process of applying the law, law enforcers must always endow branchnormswiththeirconstitutionalmeaning.Consequently,constitu- tional norms, along with branch norms, together have a regulatory effect on concrete social relations. A similar “layering” of constitutional norms and civil law norms also takes place in the regulation of proprietary relations. In and of itself, the opportunity to similarly “layer” various legal norms, and their ability to encompass the same social relations, attests to a certain degree of their similarity.

WedonotsharetheopinionofProfessorChechotwhoholdsthat— prior to taking part in the mechanism of legal regulation—constitutional rights must first “dissolve” into their corresponding private rights coun- terparts insofar as this throws doubt on the ability of such norms to be exercised in their pure form; this contradicts their subjective character, in connection with which they are transferred to the category of elements of civil and labor legal capacity.2

The formulation of Article 18 of the Russian Constitution—which states that “rights and freedoms of man and citizens operare proprio vigore”—inouropinionalsopresupposesthat,inpractice,incertainsitu- ations not only branch norms but, also, the constitutional norms which predetermine them should be applied. In this way, direct regulatory in- fluence on proprietary and related non-proprietary relations is achieved through constitutional provisions on the rights and freedoms of man and the citizen, in particular: norms dealing with fundamental economic and private rights.3

Constitutional rights that directly establish the foundations of Rus- sia’s economic system are deemed to be economic rights.These include: the right to freely utilize one’s abilities and property in entrepreneurial activities and other activities permitted by law (Art.34(1), RF Constitu-

2D.M. Chechot, Sub”ektivnoe pravo. Formy ego zashchity, Leningrad 1968, 16-17

3It is no accident that Art.79 of the Law “On the Constitutional Court of the Rus- sian Federation” stipulates that if a ruling of the Constitutional Court—declaring a normative act (or portion thereof) unconstitutional—creates a gap in the legal regulation, then the relevant norms of the Constitution of the Russian Federation must be directly applied.

tion), the right to private property and other property rights (Art.35), and the right of citizens of the Russian Federation and their associations to privately own land (Art.36). From the meaning of Articles 22(1), 35(2), and 37, we can extract a constitutional right to freedom of contract.

Figuratively speaking, a considerable number of civil rights, i.e., branch rights stipulated by civil legislation, are created “under the wing” of such constitutional rights. Fundamental economic rights guarantee a certain degree of freedom in the economic field.They have a proprietary character and are distinguished from other fundamental private rights that ensure personal immunity—the right of privacy of one’s personal and family life, protection of one’s honor and reputation (Art.23(1), RF Constitution), freedom of movement and the right to choose one’s place of domicile (Art.27(1)). Fundamental private rights do not predetermine the basis of economic and social foundations, and as a result may not be considered fundamental economic rights. Personal non-proprietary civil rights may be found (Arts.150, 152, RF Civil Code) “in the shadow” of such constitutional rights, i.e., under their corrective influence.

The 1993 Russian Constitution also contains a number of fundamental rightswhich—whilenotentirelyeconomicinnature—dohaveeconomic and constitutional significance and, accordingly, affect civil rights.

This concerns fundamental rights such as the constitutional right to intellectual property (Art.44(1), RF Constitution), the constitutional right to freedom of thought and word (Art.29(1), RF Constitution) which in the economic field is refracted into the constitutional right to industrial property and the right of commercial freedom of the press. Under the influence of these fundamental rights are found exclusive rights (Art.138,

RF Civil Code) and the right to advertisement (Federal Law of 18 July 1995, “On Advertising”).

The right of each individual to compensation from the state for torts caused by the unlawful acts (or inaction) of state bodies or their officials (Art.53, RF Constitution) has a certain degree of economic and constitutional importance. This right is matched by the civil right to compensation of losses caused by state and local self-governing bodies (Art.16, RF Civil Code).

The mechanism of “layering” constitutional norms on civil law norms may be described using the example of a case reviewed by the RF Constitutional Court of 9 June 1992 dealing with the constitutionality of a governmentdecreeconcerningtheacquisitionofautomobilesbycitizens who used special-purpose checks and deposits. In 1988, Sberbank and the

Trade Ministry of the USSR confirmed regulations in accordance with which Sberbank accepted special-purpose deposits from workers involved

in the construction and operation of the Baikal-Amur Railroad for the acquisition of automobiles; this was to be done by way of transferring a portion of their salary to such special deposit accounts. According to the terms and conditions of such deposits, the necessary funds would accrue within a period of three to five years in accordance with an employee’s application; once a sum sufficient to purchase an automobile had been accrued, a branch of Sberbank would be obliged to issue to depositors a special voucher granting the depositor the right to purchase a certain make of automobile at a certain price according to the depositor’s registered place of domicile.

In 1991, the Government of the RSFSRissued a resolution postponing until 1992 the receipt of 533,000 automobiles using Baikal-Amur Railroad checks. This postponement in effect represented the state’s unilateral amendment of the terms of performance of its obligations, i.e., a mora- torium. During the period in which the postponement was in effect, the

President issued an edict liberalizing prices which abolished state-regulated prices for many goods, including automobiles.As a result, citizens whohad been granted the right to purchase automobiles with deposits during the second half of 1991 and who—as a result of the moratorium—were not able to exercise said right, incurred substantial damages caused by the state due to the sharp increase in automobile prices. Relations between employees of the Baikal-Amur Railroad and the state were not considered to be ordinary contractual relations. Under conditions of general privatization, both the Baikal-Amur Railroad (as an employer) and Sberbank (as a banking institution) represented the state in contractual relations—as a result, contractual relations in this case were burdened by the element of public law. Professor Rudden has correctly noted that the bank loan (de- posit)contractinquestionwasnotastandardcivillawagreementregulated by the Civil Code, insofar as it was a “special purpose” agreement—not opentoallcitizensonanequalbasis,butonlytocertainworkersselected on the basis of the administration’s estimation of their importance for the general public interest. The savings accounts of the victims were reevaluated, i.e., the currency exchange rate was raised in relation to other deposits by the public authorities.4

Due precisely to the fact that relations between citizens and the state were complicated by an element of public law, the Constitutional Court found that it was appropriate to refer to Article 67 of the 1978 Russian Constitution (seeArt.53, 1993 RF Constitution) which stipulated the right of private entities to compensation from the state for damages. Similar

4See V.V. Boitsova and L.V. Boitsova, “Interpretatsiia printsipa otvetstvennosti gosudarstva za ushcherb, prichinennyi grazhdanam, v pratike Konstitutsionnogo Suda”,

Gosudarstvo i pravo 1996 No.4, 57-58.

to Article 53 of the Constitution, the provisions of Article 16 of the Code may apply only in the absence of contractual relations. However, the

Constitutional Court found that the state’s tort liability is stipulated not only by norms of civil law but of constitutional law as well; moreover, as a right stipulated by constitutional law, it possesses an independent legal content and may arise independently.

We concur with V.V. and L.V. Boitsova that in the constitutional sense, violation of the principles of constitutional government serves as grounds for imposing liability upon the state, and that the provisions of the Constitution cannot be examined in isolation since they contain an internal unity and hierarchy of values. An understanding of the Constitution as a whole assumes that its provisions should be interpreted in such a manner as to avoid violating other constitutional norms and principles.5

Grounds for civil law liability of the state are determined by the norms of the Code (Art.16 and Ch.25, RF Civil Code).

The mechanism of “layering” constitutional norms onto branch norms has also been considered by the RF Constitutional Court in a 1993 case dealing with the constitutionality of restrictions upon the period for compensation resulting from involuntary absence from the workplace owing to the unlawful termination of employment. In the opinion of the Court:

“the right to full compensation of torts inflicted upon individuals by the unlawful acts of state bodies and officials is included among the rights of the person and of citizens. A clarification of its content upon reproduction in the norms of branch legislationispossibleonlybytakingintoaccountthespecificsoftheregulatedpublic relations. However, at the same time, restrictions should not be established on full compensation of torts for citizens whose rights and freedoms have been violated by the unlawful acts of state bodies and officials.”6

In disclosing the content of the principles of constitutional government, upon the violation of which the state may be held liable in the constitutional sense, the Constitutional Court ruled that:

“thecustomoflawenforcementpracticeinquestioncontradictsaboveallgenerallaw principles of justice, legal equality, the state’s guarantee of the rights and freedoms of the person and of citizens, and of compensation by the state of all torts caused to individuals by the unlawful acts of state bodies and officials stipulated by the

Constitution of the Russian Federation. These principles enjoy the highest degree of normative generalization, predetermine the content of constitutional rights of man, have a universal character and in this regard have a regulatory effect on all areas of public relations. The mandatory nature of such principles consists of both their priority before other legal institutions as well as the extent of their action on all subjects of the law.”7

5Ibidem, 54.

6Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii 1993 No.2-3, 60.

7Ibidem.

conflicts arising between two major laws: constitutional laws governing the protection of honor and reputation (Art.23(1), RF Constitution) and the constitutional right to freedom of thought and word (Art.29, RF Constitution). Having imparted constitutional meaning to Article 7 of the RSFSR Civil Code, the Constitutional Court nevertheless refused to acceptKozyrev’scomplaint,rulingthatalthoughasignificantandtopical issuehadbeenpresentedtotheCourtintheappeal—specifically,howthe requirementsofprotectionofhonorandreputationshouldbeguaranteed so as not to contradict the interests of freedom of discussion of political problems in each specific case—the resolution of such issues falls under the competence of courts of general jurisdiction.

4. As shown by the practice of the Constitutional Court, the unconstitutionality of a civil law norm may be established in instances where its content is not clearly defined. In a case reviewing the constitutionality of Article 54, paras.1 and 2, of the RSFSR Housing Code, heard by the Constitutional Court on 25 April 1995, the Court expressed the opinion that:

“the provisions of part one,Article 54 of the Housing Code of the RSFSRon the right of an employer to house other citizens in his residential premises ‘in accordance with established procedure’ has a blanket character.The uncertainty of its legal content doesnotallowananswertothequestion:bywhichbodyandaccordingtowhichact should said procedure be established, and this leads to an arbitrary understanding of what this means in essence.”

The legal position taken by the Constitutional Court in this case in essence is contained in the following phrase:

“the possibility the arbitrary application of the law is considered a violation of the equality of all persons before the law and the court, declared by the Constitution of the Russian Federation (Art.19(1)).”

5. Articles 19 and 27(1) of the Constitution use the concepts “domicile” and “residence”. Simultaneously, Article 20 of the Code establishes that domicile is recognized as the place where a citizen permanently or predominantly resides. What should we take as the meaning of “place” in the constitutional sense of this concept? A minimum of two distinct interpretations can be proposed. First, the place where a citizen permanently or predominantly resides may be understood as her/his chosen locality, meaning a point on the map. A second possible interpretation is not simply a “point on the map” but, rather a specific residence with an address. If one uses the second interpretation of the concept of “place”, then registration—on a notification basis—of citizens according to their domicile and place of residence as it exists in Russia should be completed

only if actual housing is present. In the absence of housing (even for fully valid reasons), registration acquires an aspect of permission rather than notification. Consequently, from the constitutional right of freedom of movement and residence, it follows that only the first interpretation of

“place” is constitutional. And in considering the Avanov case dealing with the constitutionality of provisions from Article 8, parts one and three, of the Federal Law “On the Procedure of Exit from the Russian Federation and Entry into the Russian Federation”, and also the constitutionality of points 10, 12, 21 of the Regulations of the Registration of Citizens

(confirmed by the RF Government), the Constitutional Court based its conclusions on an interpretation of “domicile” and “residence” that corresponds to the Constitution.

The concepts “domicile” and “residence” exist in the legislation of many countries. Domicile is usually understood as the lawful, legally registered location of an individual which forms a strong legal connection determining his legal status and within which s/he exercises rights and obligations (electoral rights, obligation to pay taxes, mandatory military service obligations, etc.). Residence usually refers to the fact of temporary residence in a certain place.

In the judicial practice of the United States, domicile is understood as the legally registered housing of an individual. In one court ruling, domicile was defined as the place where an individual has fixed and per- manent housing to which s/he intends to return even if s/he temporarily resides in another place.9

Residence, in American judicial practice, is interpreted in a variety of ways: as the place where an individual actually lives at a given time, as his/her place of sojourn, as shelter (Perez v. Health and Social Services, reviewed by the Supreme Court of New Mexico).10 Residence is more than simply one’s physical presence yet less than domicile. Residence is defined by the fact of residence in a certain place while domicile means residence in such place with the intention of acquiring legal registration and permanent housing.

As opposed to domicile, residence signifies living in a certain place temporarily. Moreover, residence may be established for those without a permanent place of residence (for example, migrant Roma).

Insofar as residence represents temporary domicile, the question arises: may legal norms restrict the period of temporary residence to a certain period, for example, six months? Precisely such a period of registration of place of residence is established in point 10 of the Regulations

9See Black’s Law Dictionary, 484-485.

101977 NMCA 140, 573 P2nd 689, 91 NM 334.