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TASK 1
Which of the listed property will be able to return back the citizen Biryukov Arkady Pavlovich, who returned home 3 years after the entry into force of the court decision declaring him dead:
Cash in the amount of 100 thousand rubles, located on a bearer savings book, inherited by his wife Vladislava under a will;
2-room non-privatized apartment, which was transferred by the local administration under a social lease agreement to the Mudarisov family;
Personal belongings, including personal hygiene items, clothes, shoes, which were transported by son Andrey to his apartment;
A 2009 Audi car, bequeathed to his son Andrey and subsequently sold by him to his classmate Vyacheslav Voronin;
Shares of JSC "Sibvels" in the amount of 200 thousand rubles.
ANSWER: Citizen Biryukov Arkady Pavlovich, who returned home 3 years after the entry into force of the court decision declaring him dead, from the listed property will be able to return back:
Cash in the amount of 100 thousand rubles. located on a savings book to the bearer, inherited by his wife Vladislava by will,
Personal belongings, including personal hygiene items, clothes, shoes, which were transported by son Andrey to his apartment.
Task 2.
Borisova filed a lawsuit to declare her ex-husband deceased. In the statement, she indicated that she had no information about Borisov's whereabouts for more than 5 years, before that he evaded paying alimony, in connection with which his search was announced. The court, on the basis of Borisova’s application and a certificate from the housing office from Borisov’s last place of residence, ruled that he was declared missing and explained to the applicant that four years after the entry into force of the decision to declare Borisov missing, she could file an application with the court to declare him dead. Did the court make the right decision?
Solution: The court made the right decision.
An unknown absence - this is the recognition by the court of the fact of a long absence from the place of his permanent residence of a citizen in respect of whom it was not possible to find information about his place of residence. The law considers 1 year from the date of receipt of the latest information about the missing person (Article 42 of the Civil Code of the Russian Federation) as a period sufficient for deciding before the court the issue of declaring him missing. AT this case Count Borisov has grounds for a long absence without a trace (avoidance of paying alimony), so the court ruled quite correctly to recognize him as missing. The court also correctly explained Borisova that 4 years after the entry into force of the decision, she can apply to the court to recognize Borisov as dead, since the law considers 1 year from the date of receipt of the last information about the missing person (Article 42 of the Civil Code of the Russian Federation). By its decision to recognize Borisov as missing, the court legally confirmed the absence of Borisov and information about the place of his actual stay at the place of permanent residence for a period of 1 year. As mentioned above, 5 years must pass before Borisov is declared dead. Thus, Borisova will be able to file an application for declaring her husband dead, taking into account the deduction of 1 year established by the court, 4 years after the entry into the decision to declare her husband missing.
TASK 3
The prosecutor applied to the court to recognize Kirillov as having limited legal capacity. The statement noted that the lonely Kirillov, living in a room in a communal apartment, abuses alcohol, disturbs the peace of his neighbors, who turned to the prosecutor's office with a request to take necessary measures. The prosecutor's statement was accompanied by a certificate from the neuropsychiatric dispensary, which stated that Kirillov was a chronic alcoholic and needed to be disabled. The court ruled that Kirillov was recognized as having limited legal capacity. Is the judgment correct?
Solution: The abuse of alcohol or drugs, which is the basis for limiting the legal capacity of a citizen, is such excessive or systematic use that is in conflict with the interests of his family and entails unbearable expenses. Money for their acquisition, which causes financial difficulties and puts the family in a difficult situation. The fact that other family members have earnings or other income in itself is not a reason to refuse to satisfy the applicant's request if the family does not receive the necessary material support from a person who abuses alcohol or drugs, or is forced to support him in whole or in part. At the same time, it should be taken into account that the law does not make the possibility of restricting the legal capacity of a citizen dependent on recognizing him as a chronic alcoholic or drug addict (paragraph 3 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 04.05.1990 N 4 "On the practice of considering by courts Russian Federation cases on limiting the legal capacity of citizens who abuse alcohol or drugs" (as amended on 10/25/1996).
The basis for limiting the legal capacity of a citizen is the presence of a complex legal composition: the abuse of alcohol or drugs by a citizen and the difficult financial situation of the family in connection with this. Both of these conditions, as well as the presence of a causal relationship between them, are necessary to limit legal capacity. In this case, it is proved that Kirillov abuses alcohol, but there is no information that this led to the difficult financial situation of his family. Violation of the peace of neighbors is not a basis for limiting the legal capacity of a citizen. Thus, the decision of the court is incorrect.
TASK #4
Minors Dvornikov and Vasiliev are jointly and severally liable for the harm caused, but since they do not have income or other property sufficient to compensate for the harm, the obligation to compensate for the harm rests with their parents. Article 1080 of the Civil Code of the Russian Federation establishes joint and several liability for cases of harm caused by both legal entities and individuals.
Given that the guilt of Dvornikov and Vasilyev in causing harm has been established, they must, in accordance with Article 1080 of the Civil Code of the Russian Federation, bear joint and several liability to Dmitriev for compensation for harm.
According to the first part of Art. 1074 of the Civil Code of the Russian Federation, minors aged fourteen to eighteen years are independently liable for the harm caused on a general basis.
In accordance with part two of the same article, in the event that a minor between the ages of fourteen and eighteen has no income or other property sufficient to compensate for harm, the harm must be compensated in full or in the missing part by his parents (adoptive parents) or guardian, if they will not prove that the harm was not their fault.
By virtue of the third part of Art. 1074 of the Civil Code of the Russian Federation, the obligation of parents (adoptive parents) and a trustee and the relevant institution to compensate for harm caused to a minor between the ages of fourteen and eighteen years old terminates upon reaching the age of majority by the person who caused the harm or in cases where, before reaching the age of majority, he had income or other property sufficient for compensation for harm, or when he has acquired legal capacity before reaching the age of majority.
In accordance with part 1 of article 2 of the Civil Code of the Russian Federation, citizens and legal entities are participants in relations regulated by civil law. The Russian Federation, constituent entities of the Russian Federation and municipalities may also participate in relations regulated by civil law (Article 124).
TASK 5
1. The individual entrepreneur Kurochkin traded in the wholesale market products made of genuine leather. By decision of the arbitration court, Kurochkin was declared insolvent (bankrupt), because for a long time he did not pay bills for the goods delivered to him and services rendered, did not pay employees wages. Two months after the completion of all procedures related to declaring Kurochkin bankrupt, he was presented with demands: a) by the regional trading company - to pay bills for the supplied leather. The company explained the untimely presentation of the claim by the fact that due to the change in its location, it received a message about Kurochkin's bankruptcy late; b) by citizen Rudnik - on payment to him of the cost of repairing a car damaged as a result of an accident, the culprit of which was found to be Kurochkin; c) citizen Semyonov, who was injured in this accident and became disabled - on compensation for the losses caused to him in connection with the loss of ability to work and the cost of treatment.
Solution: IP Kurochkin is obliged to fulfill all the requirements put forward to him. (part 3 and part 4 of article 25.)
In accordance with the Federal Law "On Insolvency (Bankruptcy)", creditors' claims individual entrepreneur if he is declared bankrupt, they are satisfied at the expense of his property in the manner and in the order provided for by the law on insolvency (bankruptcy).
First of all, the claims of citizens to whom the liquidated legal entity is liable for causing harm to life or health are satisfied by capitalizing the corresponding time payments, as well as claims for compensation for moral damage (that is, the claims of citizen Semenov)
Claims of creditors of each turn shall be satisfied after the full satisfaction of the claims of creditors of the previous turn, except for the claims of creditors for obligations secured by a pledge of property of a liquidated legal entity.
TASK 7
With the approval of his parents, 15-year-old lyceum student Novikov raised money to buy a motorcycle. He earned 60% of the required amount during the holidays; 30% - inherited from grandfather; the missing 10% was given to him by his grandmother. Without asking the permission of his parents, who went on vacation for a month, Novikov bought a motorcycle from his housemate, 17-year-old Demin. After that, Novikov had a small amount left, which he deposited into an account opened by him in his name at a branch of Sberbank. Returning from vacation, Novikov's parents felt that their son had made an unsuccessful purchase. They demanded that Demin and his parents terminate the contract. Demin's father also insisted on returning the motorcycle he gave his son last year for his 16th birthday. Novikov and Demin said they were not going to terminate the contract, since each of them disposed of his own property. Demin's father went to court with a demand to invalidate the sale and purchase agreement concluded between his son and Novikov.
The problem from civil law can be solved with the help of articles of the Civil Code of the Russian Federation - 26, 28.
1. The funds of a 15-year-old teenager were received as a result of earnings, under a donation agreement and by inheritance. Therefore, a teenager has the right to dispose of them at his own discretion and without the consent of legal representatives.
2. A 17-year-old's motorcycle was received as a gift and is the property of the minor.
The sale and purchase transaction is valid and the court will have no reason to cancel it.
TASK 8
Angela Sidorkina, 17, worked as a store clerk's assistant and spent nearly all of her earnings on expensive fashionable clothes. Angela's mother Roxana Sidorkina convinced her daughter of the unreasonableness of such expenses, since the family was experiencing serious financial difficulties. Roxana was a disabled person of group I and received a small pension, alimony from her ex-husband came irregularly and insignificant, while Roxana was dependent on two young children (Angela's brother and sister).
Angela claimed that she buys clothes with her own earnings, part of which she regularly gives to her mother for general family expenses and her food, and she is not obliged to support her brother and sister.
Roxanne appealed to the management of the store with a request not to give Angela a salary in her hands because of her minority. Having been refused, Roxana applied to the court with a request to deprive her daughter of the right to independently manage her earnings and appoint her as Angela's trustee.
Solution: The court will refuse the request referring to: Civil Code of the Russian Federation (CC RF) dated November 30, 1994 N 51-FZ - Part 1, Subsection 2. PERSONS, Chapter 3. CITIZENS (INDIVIDUALS).
Article 17. Legal capacity of a citizen
1. The ability to have civil rights and bear obligations (civil capacity) is recognized equally for all citizens.
2. The legal capacity of a citizen arises at the moment of his birth and ends with his death.
Article 26
2. Minors at the age of fourteen to eighteen years of age have the right independently, without the consent of their parents, adoptive parents and guardian:
1) dispose of their earnings, scholarships and other income.
TASK 10
22-year-old Vasily Pugovkin, under the influence of bad company, began to come home drunk, and later became addicted to gambling, including playing billiards, losing and drinking away all your earnings. To save their son from bad habits, his parents went to court with an application to limit Vasily's legal capacity. In particular, they asked the court to prohibit Vasily from selling his property and deprive him of the right to independently manage his earnings. Asking the court to appoint him as his son's trustee, Vasily's father argued that he would not spend his son's earnings on family needs, but intended to transfer money to Sberbank in the name of his son, provided that the son was forbidden to dispose of the deposit without the consent of the father. At the same time, Vasily's father undertook to fully meet the needs of his son at the expense of the family budget.
According to Art. thirty item 1 Civil Code of the Russian Federation, Vasily cannot be limited by the court in capacity, t.to. by his actions, he does not put his family in a difficult financial situation.
TASK 11
By a court decision, Kirpichev, at the request of his wife Vorobyova, was declared dead. Being the only heiress, his wife received all the property belonging to Kirpichev. She sold a dacha, a piano, two paintings and a library consisting of books on metallurgy, some other things that personally belonged to Kirpichev. She gave a TV set and a refrigerator, acquired during her married life with Kirpichev, to her sister Khomyakova. Watch, gun and camera, which belonged personally to Kirpichev, she kept
A year after he was declared dead, Kirpichev returned home. He explained his unknown absence by the fact that he was serving a sentence for committing a crime, about which he did not want to tell anyone, including his wife. Continue life together he did not wish with Vorobyeva and demanded the return of his property. As it turned out, Kirpichev's dacha was bought by his former colleague Plyushkin, who knew that Kirpichev had been convicted and was serving his sentence. The piano ended up with Nesterenko, who bought it in a music salon. The paintings were bought by an art gallery, and the library by a technical lyceum. Kirpichev filed suits against all the subjects who turned out to have things that belonged to him: to Plyushkin, Nesterenko, the gallery, the lyceum, Khomyakova for the return of these things to him. From ex-wife Vorobyova, he demanded the return of the surviving things in kind, as well as reimbursement of the cost of those things that were sold by his wife, but whose owners Kirpichev did not find. When considering the dispute, Plyushkin asked that the claim be dismissed, since more than 6 years had passed since Kirpichev's disappearance, therefore, the limitation period had expired. If the court still decides to confiscate the dacha from him, then Vorobyova is obliged to return the money received for the dacha to him.
Solution: According to Art. 46 of the Civil Code of the Russian Federation, part 2
“Regardless of the time of his appearance, a citizen may demand from any person the return of the surviving property that was transferred to this person free of charge after the citizen was declared dead, except for the cases provided for in paragraph 3 of Article 302 of this Code. Persons to whom the property of a citizen who was declared dead passed through transactions for compensation are obliged to return this property to him if it is proved that, when acquiring the property, they knew that the citizen declared dead was alive. If it is impossible to return such property in kind, its value shall be reimbursed.
It follows from this article that the property that was transferred free of charge to other owners, that is, a TV set and a refrigerator, should be returned to Kirpichev. He will not be able to return the piano, paintings and library, because these things were bought by persons who do not know that a citizen declared dead is still alive. Another situation is with the dacha that Plyushkin bought from Kirpichev's wife. Plyushkin knew that Kirpichev had been convicted and was serving his sentence, that is, he knew that Kirpichev was alive. Therefore, Plyushkin will be obliged to return the dacha to Kirpichev.
TASK 12
14-year-old Alexei Sinitsyn joined a limited liability company. A few months later, Sinitsyn's father came to the director of the Society and said that Aleksey was spending his earnings unwisely: he bought very expensive things, visited restaurants, etc. At the same time, the family is experiencing financial difficulties, because in addition to Alexei, the family has two more young children. In addition, Alexei's mother is disabled for health reasons. The director was sympathetic to the problems of the family and ordered that only part of the salary be given to Alexei, and the rest to be given to his parents. Did the director do the right thing?
In accordance with Part.2 Article. 26 of the Civil Code of the Russian Federation, minors between the ages of fourteen and eighteen have the right to independently, without the consent of their parents, adoptive parents and guardian, dispose of their earnings, scholarships and other incomes.
From part 4 of this article it follows that, if there are sufficient grounds, the court, at the request of parents, adoptive parents or a guardian or a guardianship and guardianship authority, may restrict or deprive a minor between the ages of fourteen and eighteen years of the right to independently manage their earnings, scholarships or other income, for except in cases where such a minor has acquired legal capacity in full in accordance with paragraph 2 of Article 21 or Article 27 of this Code. In this case, despite the fact that Aleksey Sinitsyn did not acquire legal capacity in full, there is no court decision to limit his independent disposal of his earnings, so the director acted incorrectly.
TASK 13
Ten-year-old Oleg Solovyov, with the written consent of his parents, entered into a bank deposit agreement. Oleg repeatedly replenished the deposit with small amounts saved from the money he received from his parents for various small purchases. When the account turned out to be 20 thousand rubles, he decided to withdraw this amount and purchase a game computer console for himself. The bank operator refused to give him the specified amount, saying that Oleg would be able to receive money from his deposit only upon reaching the age of majority. Is the operator correct? What rights do minors have in relation to deposits in credit institutions?
ANSWER: The operator is right.
The legal capacity of minors, namely Oleg Solovyov, is regulated by Article 28 of the Civil Code of the Russian Federation. Minors aged 6-14 years old can independently make small everyday transactions, transactions aimed at gratuitous receipt of benefits that do not require notarization or state registration, transactions for the disposal of funds provided by legal representatives or with their consent by 3 persons for a specific purpose or for free disposal. Other transactions on behalf of minors can be concluded only by their legal representatives. Minors under 14 years of age may not make deposits in credit institutions and dispose of them. The rights of minors aged fourteen to eighteen years in relation to deposits in credit institutions are regulated by Article 26 of the Civil Code of the Russian Federation, clause 2, clause 3, which states that minors have the right, without the consent of their parents, in accordance with the law, to make deposits in credit institutions and dispose of them. Thus, the bank teller was right in refusing to issue a deposit to Oleg. Oleg will be able to receive his contribution at the age of 14
TASK 14
Twelve-year-old Alexander Vasiliev took part in the filming of a feature film, for which he was paid a reward in the amount of 5 thousand rubles. With this money, he bought stationery: a fountain pen, a pencil case and an expensive notebook. Alexander's parents felt that he spent the money unwisely, took the purchases back to the store and demanded that the director take them back. The director refused to satisfy the demand of the parents, because from a conversation with the boy he learned that Alexander made purchases with the money he earned, and minors can manage their earnings on their own. Who is right in the dispute? Will the decision change if the reward was received by the father of Alexander Vasiliev, who transferred the money to his son with the words: “You can manage your earnings yourself”?
ANSWER: In the ensuing dispute, the boy's father is right.
The right of a child to dispose of property belonging to him by right of ownership is determined by Articles 26 and 28 of the Civil Code of the Russian Federation, which determine the legal capacity of minors aged 14 to 18 years and the legal capacity of minors. However, the current civil legislation does not provide for the possibility for adolescents under the age of 14 to independently manage their own income. Therefore, in the dispute between the store director and Vasiliev's father, the boy's father is right. The arguments given by the director of the store are valid only for minors aged 14 to 18 years (Article 26, Clause 2 of the Civil Code of the Russian Federation). If the reward had been received by the boy’s father, who then handed over the money to his son with the words: “You can manage your earnings yourself” (i.e., agreed to dispose of the funds), then the store manager could, on absolutely legal grounds, refuse to return purchases. He must justify his refusal by referring to Article 28, Clause 2, Clauses 1 and 3.
TASK 15
By the decision of the local administration, seventeen-year-old Vasilyeva was allowed to marry Fedorov before reaching the age of eighteen. After registering the marriage, intending to move to her husband, who lives in another village, Vasilyeva decided to sell the house, which had passed to her by will. Since none of her fellow villagers expressed a desire to purchase a house for permanent residence, she agreed with Nikitin to sell him a house for demolition for $ 500, USA. Vasilyeva's parents objected to this deal. In their opinion, the house should not have been sold for demolition at all, since it is located in good condition and they managed to find a buyer willing to purchase a house for permanent residence for a large amount. Vasilyeva replied that the contract with Nikitin had already been concluded, and she did not intend to change or terminate it. The parents filed a lawsuit in court to recognize the contract concluded with Nikitin as invalid, as committed by their minor daughter without their consent. Solve the case.
Solution: According to Art. 21 of the Civil Code of the Russian Federation, in the case when the law allows marriage before reaching the age of eighteen, a citizen who has not reached the age of eighteen acquires legal capacity in full from the time of marriage. She had every right to conclude an agreement with Nikitin on the sale of the house for demolition. Parents' claims are unfounded, tk. their daughter is fully capable from the moment of marriage and has the full right to dispose of property at her own discretion.
TASK 16
Viktor Petrov received a tape recorder as a gift from his grandmother on the occasion of his graduation from school. After some time, he asked his grandmother if she would object to him exchanging the tape recorder for a video camera belonging to his friend Nesterov. Grandmother did not object and formalized her consent to the transaction in writing. The exchange took place. Victor's father, having learned about the exchange, demanded that Nesterov return the tape recorder and take back the video camera, since he did not give his consent to the exchange. Nesterov refused, explaining that, as far as he knew, the tape recorder was presented to Victor not by his father, but by his grandmother, who gave written consent to the transaction. Under these circumstances, as Nesterov believed, the minor Victor did not need the consent of his father to complete the transaction. Who is right in this dispute? Will the decision change if Victor's mother agrees to the exchange at the request of the grandmother? Decision:
In this dispute, Victor's father is right. Will not change.
Paragraph 1 of Art. 26 of the Civil Code of the Russian Federation provides that minors aged 14 to 18 make transactions with the written consent of their legal representatives - parents, adoptive parents or guardian. First of all, the current legislation imposes on parents the obligation to protect the rights and interests of children. Parents are the legal representatives of their children and act in defense of their rights and interests in relations with any physical and legal entities, including in the courts. To exercise the functions of protecting the rights and interests of children, parents do not need any special powers. Victor did not receive written consent to the exchange from his parents. Therefore, Victor's father was right in the dispute. Nesterov's argument that the tape recorder was donated not by his father, but by his grandmother, who gave written consent to the transaction, must be rejected, since in this situation, Victor's father and mother, and not his grandmother, are legal representatives. If Victor's mother had agreed (in writing) to the exchange at the request of his grandmother, then Victor's father would have been wrong, since the terms of the transaction made by the minor Victor would correspond to clause 2, clause 4, article 26 of the Civil Code of the Russian Federation, which in turn sends us to clause 2, clause 3, article 28 of the Civil Code of the Russian Federation (there is the consent of the legal representative).
TASK 17
Travkin bought a concert grand piano in a musical instrument store. The next day, Travkin's wife came to the store manager and demanded to take the piano back and return the amount of money received by the store. At the same time, she explained that Travkin suffers from schizophrenia, is under the supervision of a neuropsychiatric dispensary, and in the near future she intends to go to court with a statement declaring him incompetent. The seller invited by the director of the store, who made the purchase, said that Travkin's behavior did not give the slightest reason to suspect any mental abnormalities. In addition, Travkin, testing the instrument, performed at a very high professional level several technically complex excerpts from the works of Beethoven, Liszt and Debussy. Travkin's wife presented a medical certificate, which noted that Travkin had been subject to periodic attacks of schizophrenia for a number of years, which had become more frequent over the past few months, but in the intervals between them he was quite capable of giving an account of his actions and directing them. Are there grounds for declaring the transaction invalid?
In this case, there are no grounds for recognizing the transaction as invalid, the transaction can be recognized as void only if the citizen is recognized as incapacitated (Article 171, Clause 1 of the Civil Code of the Russian Federation). Based on Art. 29, paragraph 1 of the Civil Code of the Russian Federation, only a court can recognize a citizen as incompetent in the manner prescribed by civil procedural legislation. Since Travkin's wife does not have a corresponding court decision (Article 285 of the Code of Civil Procedure of the Russian Federation), it means that the transaction cannot be recognized as invalid.
But it is also possible that the court will recognize the transaction as invalid. If later the citizen is recognized as legally incompetent and it is proved that at the time of the transaction he was not able to understand the report in his actions, as well as the guardian will receive a claim to recognize the transaction as invalid (Article 177, paragraph 2 of the Civil Code of the Russian Federation).
Since the medical certificate notes that Travkin is subject to periodic attacks of schizophrenia and in the intervals between them he is able to give an account of his actions and manage them, on the basis of this certificate, citizen Travkin can be recognized as capable at the time of the transaction.
A citizen may be recognized as incompetent due to a mental disorder, when he does not understand the meaning of his actions and cannot manage them (Article 29, Clause 1 of the Civil Code of the Russian Federation).
The transaction on behalf of an incapacitated person is made by his guardian (Article 29, Clause 2 of the Civil Code of the Russian Federation).
TASK 18
Golubev, a member of the geological expedition, was on a ship from Nakhodka to Sakhalin. In the Sea of Japan, the ship was caught in a storm and sank. Most of the crew and passengers were picked up by nearby ships, but several people, including Golubev, could not be found. A radiogram was sent to Golubev's wife stating that her husband had gone missing in a shipwreck in stormy weather. After 8 months, Golubev, at the request of his wife, was declared dead by the court. All his property was inherited by his wife: the dacha, Travkin's wife came to the store director and demanded to take the piano back and return the amount of money received by the store. At the same time, she explained that Travkin suffers from schizophrenia, is under the supervision of a neuropsychiatric dispensary, and in the near future she intends to go to court with a statement declaring him incompetent. The seller invited by the director of the store, who made the purchase, said that Travkin's behavior did not give the slightest reason to suspect any mental abnormalities. In addition, Travkin, testing the instrument, performed at a very high professional level several technically complex excerpts from the works of Beethoven, Liszt and Debussy. Travkin's wife presented a medical certificate, which noted that Travkin had been subject to periodic attacks of schizophrenia for a number of years, which had become more frequent over the past few months, but in the intervals between them he was quite capable of giving an account of his actions and directing them. Are there grounds for declaring the transaction invalid?
In accordance with Article 177 1. A transaction made by a citizen, although capable, but who at the time of its conclusion was in such a state when he was not able to understand the meaning of his actions or manage them, may be recognized by the court as invalid at the suit of this citizen or other persons whose rights or legally protected interests are violated as a result of its commission.
2. A transaction made by a citizen subsequently recognized as legally incompetent may be recognized by a court as invalid at the suit of his guardian, if it is proved that at the time of the transaction the citizen was not able to understand the meaning of his actions or manage them.
A transaction made by a citizen subsequently limited in legal capacity due to a mental disorder may be declared invalid by a court at the suit of his trustee, if it is proved that at the time of the transaction the citizen was not able to understand the meaning of his actions or manage them and the other party to the transaction knew or should have know about it.
3. If the transaction is recognized as invalid on the basis of this article, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code shall apply accordingly.
TASK 19
Golubev, a member of the geological expedition, was on a ship from Nakhodka to Sakhalin. In the Sea of Japan, the ship was caught in a storm and sank. Most of the crew and passengers were picked up by nearby ships, but several people, including Golubev, could not be found. A radiogram was sent to Golubev's wife stating that her husband had gone missing in a shipwreck in stormy weather. After 8 months, Golubev, at the request of his wife, was declared dead by the court. All his property was inherited by his wife: a dacha, a motorcycle, a bicycle, etc. Deciding to move to her parents in Moscow, she sold the dacha and the motorcycle, and gave the bicycle to her nephew. Golubev soon returned. It turned out that he, along with two crew members, managed to get off on a life raft, which was carried to a desert island, where they lived all this time, until they were accidentally discovered by the crew of a helicopter flying near the island. Golubev's wife stated that the marriage between them was terminated, since Golubev was declared dead in the manner prescribed by law. Golubev demanded the return of the things that belonged to him from the persons who had them. In addition, he demanded that his wife reimburse the cost of things that were not preserved in kind by the time of his return. Are Golubev's demands justified?
According to Part 1 of Art. 45 citizen can be in judicial order declared dead if at the place of his permanent residence there is no information about his place of stay for 5 years, and if he went missing under circumstances threatening death or giving reason to assume his death from a certain accident - within 6 months.
According to Art. 46 in those cases when a citizen declared dead appears at the place of his residence or at the location of his property, the act of declaring him dead is canceled and all property and personal non-property rights are returned to him.
The legislator determined the procedure for returning property to a person declared dead by a court decision (clause 2, article 46 of the Civil Code of the Russian Federation). Claims for the return of property may be filed regardless of the term for the appearance of a citizen declared dead, while only the property that has been preserved is returned to him. However, in those cases when the property of the declared deceased passed to the state by right of inheritance (Articles 552, 553 of the Civil Code of the Russian Federation) and was sold, the amount received from the sale of property is returned to the citizen. Similarly, the norm regulates the return of property preserved in kind, transferred to other persons under gratuitous transactions (for example, heirs gave it to their friends). In this case, it is subject to return, and if the property has already been sold, they are obliged to reimburse the value of the property (provided that they knew that the declared deceased was actually alive).
In the event that the property of a citizen declared dead has passed to other persons through transactions for compensation, then it shall not be returned to the owner. At the same time, these persons will be obliged to return this property to him if it is proved that, when acquiring the property, they knew that the citizen declared dead was alive, and if it is impossible to return such property in kind, its value is reimbursed.
TASK 20
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Tarasova applied to the notary's office with a request to issue her a certificate of the right to inherit the property that belonged to her husband, who, by a court decision made four years ago, was declared missing. Believing that, according to the law, Tarasova's husband should be considered dead, the notary issued a certificate of inheritance to his widow.
A citizen may be declared dead by a court if there is no information about his place of residence in the place of his residence for five years, and if he has gone missing under circumstances that threatened death or give reason to assume his death from a certain accident - within six months , and also, in accordance with clause 3 of this article, the day of death of a citizen declared dead is considered the day the court decision on declaring him dead comes into force. Thus, the action of the notary should be recognized as unlawful, since four years, not five years, have passed since the disappearance of Tarasova's spouse. Therefore, he cannot be declared dead, and Secondly to recognize him as dead, a court decision that has entered into legal force is required.
Task number 12.
Proleiko, who worked as a sailor on a fishing boat, did not show up for work one day. It turned out that he was not at home either. From that day on, he disappeared, and Proleiko's wife's attempts to find a husband were unsuccessful. Six months later, Proleiko's wife applied to the court to declare her husband missing or to declare him dead. As indicated by the applicant, in the future she wants to ask the social protection authority to grant her and the three minor children who are dependent on her a survivor's pension.
The court found that on the day Proleiko disappeared, he was seen in a state of intoxication on the seashore. Witnesses claimed that they dissuaded Proleiko from swimming because the sea was stormy, but Proleiko responded to this with rudeness. It turned out that earlier he had a penalty from the captain of the ship for absenteeism due to being in a state of intoxication and two penalties for unauthorized bathing in the sea. The court issued a decision declaring Proleiko dead, believing that he drowned while swimming in the sea while intoxicated, i.e. went missing under circumstances that give reason to assume his death from an accident.
Decision: In accordance with Article 45, paragraph 1. of the Civil Code of the Russian Federation “Declaring a citizen dead”
A citizen may be declared dead by a court if there is no information about his place of residence in the place of his residence for five years, and if he has gone missing under circumstances that threatened death or give reason to assume his death from a certain accident - within six months .
Since six months have passed and Proleiko has not appeared that he had previously received a penalty from the captain of the ship for absenteeism due to being in a state of intoxication and two penalties for unauthorized swimming in the sea, he can be considered dead. Thus, the court correctly ruled.
Task number 13.
By a court decision, Kirpichev, at the request of his wife Vorobyova, was declared dead. Being the only heiress, his wife received all the property belonging to Kirpichev. She sold a dacha, a piano, two paintings and a library consisting of books on metallurgy, some other things that personally belonged to Kirpichev. She gave a TV set and a refrigerator, acquired during her married life with Kirpichev, to her sister Khomyakova. She kept the clock, gun and camera that belonged personally to Kirpichev.
A year after he was declared dead, Kirpichev returned home. He explained his unknown absence by the fact that he was serving a sentence for committing a crime, about which he did not want to tell anyone, including his wife. He did not want to continue living together with Vorobyeva and demanded the return of his property. As it turned out, Kirpichev's dacha was bought by his former colleague Plyushkin, who knew that Kirpichev had been convicted and was serving his sentence. The piano ended up with Nesterenko, who bought it in a music salon. The paintings were bought by an art gallery, and the library by a technical lyceum. Kirpichev filed suits against all the subjects who turned out to have things that belonged to him: to Plyushkin, Nesterenko, the gallery, the lyceum, Khomyakova for the return of these things to him. From his ex-wife Vorobieva, he demanded the return of the preserved things in kind, as well as reimbursement of the cost of those things that were sold by his wife, but whose owners Kirpichev did not find.
When considering the dispute, Plyushkin asked that the claim be dismissed, since more than 6 years had passed since Kirpichev's disappearance, therefore, the limitation period had expired. If the court still decides to confiscate the dacha from him, then Vorobyova is obliged to return the money received for the dacha to him.
Solution: According to Art. 46 of the Civil Code of the Russian Federation, part 2
“Regardless of the time of his appearance, a citizen may demand from any person the return of the surviving property that was transferred to this person free of charge after the citizen was declared dead, except for the cases provided for in paragraph 3 of Article 302 of this Code. Persons to whom the property of a citizen who was declared dead passed through transactions for compensation are obliged to return this property to him if it is proved that, when acquiring the property, they knew that the citizen declared dead was alive. If it is impossible to return such property in kind, its value shall be reimbursed.
It follows from this article that the property that was transferred free of charge to other owners, that is, a TV set and a refrigerator, should be returned to Kirpichev. He will not be able to return the piano, paintings and library, because these things were bought by persons who do not know that a citizen declared dead is still alive. Another situation is with the dacha that Plyushkin bought from Kirpichev's wife. Plyushkin knew that Kirpichev had been convicted and was serving his sentence, that is, he knew that Kirpichev was alive. Therefore, Plyushkin will be obliged to return the dacha to Kirpichev.
Task number 14.
Six-year-old Boris Orlov inherited an apartment and a dacha from his grandfather. In connection with the upcoming move to another city, Boris's parents decided to sell the apartment to one of his father's colleagues, and give the dacha to Boris's thirty-year-old brother, who lived nearby with his family and was not going to leave the city. Since such donation and sale contracts are subject to state registration, Boris's parents turned to a law firm with a request to formalize all Required documents for their state registration. What should law firms do?
Solution: According to Article 575 of the Civil Code of the Russian Federation, “Donation is not allowed, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles: on behalf of minors and citizens recognized as incompetent, by their legal representatives;”. In accordance with paragraph 2 of Article 37 of the Civil Code of the Russian Federation, “The guardian is not entitled, without prior permission from the guardianship and guardianship authority, to make, and the trustee - to give consent to transactions for the alienation, including the exchange or donation of the property of the ward, its hiring (renting) , for gratuitous use or as a pledge, transactions entailing the waiver of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other actions that reduce the property of the ward ”Based on the above, Boris Orlov’s parents cannot donate a dacha, and An apartment can be sold only with the permission of the guardianship and guardianship authority.
Task number 15.
Citizen Belov, recognized in the manner prescribed by law as legally incompetent, for several months bought one fountain pen a day in the same store. The wife appointed as his guardian brought all the purchased fountain pens to the store and demanded that the store manager return the money paid for them. The store manager refused to comply with the demand of Belov's wife, citing the fact that Belov made small everyday transactions that any citizen has the right to make on their own. Who is right in this dispute?
Solution: A transaction made by a citizen recognized as legally incompetent is void and entails the consequences provided for in par. 2, 3 p. 1 art. 171 GK.
Only in the interests of a citizen recognized as legally incompetent due to a mental disorder, a transaction made by him can be recognized by the court as valid at the request of his guardian and provided that it was made to the benefit of this citizen (clause 2 of article 171 of the Civil Code of the Russian Federation).
Thus, in this dispute, Belov's wife is right, classifying the transaction as a small household value does not have to solve the problem.
Task number 16.
Borisova filed a lawsuit declaring her ex-husband dead. In the statement, she indicated that she had no information about Borisov's whereabouts for more than 5 years, before that he evaded paying alimony, in connection with which his search was announced. The court, on the basis of Borisova’s application and a certificate from the housing office from Borisov’s last place of residence, ruled that he was declared missing and explained to the applicant that four years after the entry into force of the decision to declare Borisov missing, she could file an application with the court to declare him dead. Did the court make the right decision?
Solution: The court made the right decision.
An unknown absence - this is the recognition by the court of the fact of a long absence from the place of his permanent residence of a citizen in respect of whom it was not possible to find information about his place of residence. The law considers 1 year from the date of receipt of the latest information about the missing person (Article 42 of the Civil Code of the Russian Federation) as a period sufficient for deciding before the court the issue of declaring him missing. In this case, Mr. Borisov has grounds for a long-term missing person (avoidance of paying alimony), so the court ruled quite correctly to recognize him as missing. The court also correctly explained Borisova that 4 years after the entry into force of the decision, she can apply to the court to recognize Borisov as dead, since the law considers 1 year from the date of receipt of the last information about the missing person (Article 42 of the Civil Code of the Russian Federation). By its decision to recognize Borisov as missing, the court legally confirmed the absence of Borisov and information about the place of his actual stay at the place of permanent residence for a period of 1 year. As mentioned above, 5 years must pass before Borisov is declared dead. Thus, Borisova will be able to file an application for declaring her husband dead, taking into account the deduction of 1 year established by the court, 4 years after the entry into the decision to declare her husband missing.
Task number 17.
The prosecutor applied to the court to recognize Kirillov as having limited legal capacity. The statement noted that the lonely Kirillov, living in a room in a communal apartment, abuses alcohol, disturbs the peace of his neighbors, who turned to the prosecutor's office with a request to take the necessary measures against Kirillov. The prosecutor's statement was accompanied by a certificate from the neuropsychiatric dispensary, which stated that Kirillov was a chronic alcoholic and needed to be disabled. The court ruled that Kirillov was recognized as having limited legal capacity. Is the judgment correct?
Solution: The abuse of alcohol or drugs, which is the basis for limiting the legal capacity of a citizen, is such excessive or systematic use that is in conflict with the interests of his family and entails unbearable expenses of money for their acquisition, which causes material difficulties and puts the family in a difficult position. The fact that other family members have earnings or other income in itself is not a reason to refuse to satisfy the applicant's request if the family does not receive the necessary material support from a person who abuses alcohol or drugs, or is forced to support him in whole or in part. At the same time, it should be taken into account that the law does not make the possibility of restricting the legal capacity of a citizen dependent on recognizing him as a chronic alcoholic or drug addict (paragraph 3 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 04.05. alcohol or narcotic drugs" (as amended on 10/25/1996).
The basis for limiting the legal capacity of a citizen is the presence of a complex legal composition: the abuse of alcohol or drugs by a citizen and the difficult financial situation of the family in connection with this. Both of these conditions, as well as the presence of a causal relationship between them, are necessary to limit legal capacity. In this case, it is proved that Kirillov abuses alcohol, but there is no information that this led to the difficult financial situation of his family. Violation of the peace of neighbors is not a basis for limiting the legal capacity of a citizen. Thus, the decision of the court is incorrect.
Task number 19.
14-year-old Alexei Sinitsyn joined a limited liability company. A few months later, Sinitsyn's father came to the director of the Society and said that Aleksey was spending his earnings unwisely: he bought very expensive things, visited restaurants, etc. At the same time, the family is experiencing financial difficulties, because in addition to Alexei, the family has two more young children. In addition, Alexei's mother is disabled for health reasons. The director was sympathetic to the problems of the family and ordered that only part of the salary be given to Alexei, and the rest to be given to his parents. Did the director do the right thing?
Solution: In accordance with Part.2 Article. 26 of the Civil Code of the Russian Federation, minors between the ages of fourteen and eighteen have the right to independently, without the consent of their parents, adoptive parents and guardian, dispose of their earnings, scholarships and other incomes.
From part 4 of this article it follows that, if there are sufficient grounds, the court, at the request of parents, adoptive parents or a guardian or a guardianship and guardianship authority, may restrict or deprive a minor between the ages of fourteen and eighteen years of the right to independently manage their earnings, scholarships or other income, for except in cases where such a minor has acquired legal capacity in full in accordance with paragraph 2 of Article 21 or Article 27 of this Code. In this case, despite the fact that Aleksey Sinitsyn did not acquire legal capacity in full, there is no court decision to limit his independent disposal of his earnings, so the director acted incorrectly.
Task number 20.
Ten-year-old Oleg Solovyov, with the written consent of his parents, entered into a bank deposit agreement. Oleg repeatedly replenished the deposit with small amounts saved from the money he received from his parents for various small purchases. When the account turned out to be 20 thousand rubles, he decided to withdraw this amount and purchase a game computer console for himself. The bank operator refused to give him the specified amount, saying that Oleg would be able to receive money from his deposit only upon reaching the age of majority. Is the operator correct? What rights do minors have in relation to deposits in credit institutions?
Solution: The operator is right.
The legal capacity of minors, namely Oleg Solovyov, is regulated by Article 28 of the Civil Code of the Russian Federation. Minors aged 6-14 years old can independently make small household transactions, transactions aimed at obtaining gratuitous benefits that do not require notarization or state registration, transactions for the disposal of funds provided by legal representatives or with their consent by 3 persons for a specific purpose or for free disposal. Other transactions on behalf of minors can be concluded only by their legal representatives. Minors under 14 years of age may not make deposits in credit institutions and dispose of them. The rights of minors aged fourteen to eighteen in relation to deposits in credit institutions are regulated by Article 26 of the Civil Code of the Russian Federation, clause 2, clause 3, which states that minors have the right, without the consent of their parents, in accordance with the law, to make deposits in credit institutions and dispose of them. Thus, the bank teller was right in refusing to issue a deposit to Oleg. Oleg will be able to receive his contribution at the age of 14.
Task number 21.
Twelve-year-old Alexander Vasiliev took part in the filming of a feature film, for which he was paid a reward in the amount of 5 thousand rubles. With this money, he bought stationery: a fountain pen, a pencil case and an expensive notebook. Alexander's parents felt that he spent the money unwisely, took the purchases back to the store and demanded that the director take them back. The director refused to satisfy the demand of the parents, because from a conversation with the boy he learned that Alexander made purchases with the money he earned, and minors can manage their earnings on their own. Who is right in the dispute? Will the decision change if the reward was received by the father of Alexander Vasiliev, who transferred the money to his son with the words: “You can manage your earnings yourself”?
Solution: In the ensuing dispute, the boy's father is right.
The right of a child to dispose of property belonging to him by right of ownership is determined by Articles 26 and 28 of the Civil Code of the Russian Federation, which determine the legal capacity of minors aged 14 to 18 years and the legal capacity of minors. However, the current civil legislation does not provide for the possibility for adolescents under the age of 14 to independently manage their own income. Therefore, in the dispute between the store director and Vasiliev's father, the boy's father is right. The arguments given by the director of the store are valid only for minors aged 14 to 18 years (Article 26, Clause 2 of the Civil Code of the Russian Federation). If the reward had been received by the boy’s father, who then handed over the money to his son with the words: “You can manage your earnings yourself” (i.e., agreed to dispose of the funds), then the store manager could, on absolutely legal grounds, refuse to accept shopping back. He must justify his refusal by referring to Article 28, Clause 2, Clauses 1 and 3.
Task number 22. After the death of his grandfather, ten-year-old Sasha Sadov became the owner of a Zhiguli car. The car was in the garage, and no one used it for more than two years from the date of grandfather's death. After some time, Sasha was summoned to the tax office, where he was asked to pay the tax from the owners Vehicle. Sasha's parents believed that an incapacitated son could not be recognized as a subject of tax legal relations and pay taxes. The tax inspectorate submitted the documents for consideration by the legal adviser. Prepare a reasoned legal opinion.
Solution: It follows from clause 1 of article 28 of the Civil Code of the Russian Federation that for minors under the age of fourteen (minors), transactions, with the exception of those specified in clause 2 of this article, can only be made on their behalf by their parents, adoptive parents or guardians. Sasha Sadov's parents will pay tax on vehicle owners.
Task number 23.
By the decision of the local administration, seventeen-year-old Vasilyeva was allowed to marry Fedorov before reaching the age of eighteen. After registering the marriage, intending to move to her husband, who lives in another village, Vasilyeva decided to sell the house, which had passed to her by will. Since none of her fellow villagers expressed a desire to purchase a house for permanent residence, she agreed with Nikitin to sell him a house for demolition for $ 500, USA. Vasilyeva's parents objected to this deal. In their opinion, the house should not have been sold for demolition at all, since it is in good condition and they managed to find a buyer willing to buy a house for permanent residence for a large sum. Vasilyeva replied that the contract with Nikitin had already been concluded, and she did not intend to change or terminate it. The parents filed a lawsuit in court to recognize the contract concluded with Nikitin as invalid, as committed by their minor daughter without their consent. Solve the case.
Solution: According to Art. 21 of the Civil Code of the Russian Federation, in the case when the law allows marriage before reaching the age of eighteen, a citizen who has not reached the age of eighteen acquires legal capacity in full from the time of marriage. She had every right to conclude an agreement with Nikitin on the sale of the house for demolition. Parents' claims are unfounded, tk. their daughter is fully capable from the moment of marriage and has the full right to dispose of property at her own discretion.
