Land and Legal reform and Development of Land Legislature in the Russian Federation (Land Legislature of the Subjects of the Russian Federation)
Pavlov P.N., counselor of the Main state-legal department of the President of the Russian Federation
The richest land resources (1709 millions hectares of land) are centred in Russian Federation. The welfare of the society in the whole and people in particular depends in many respects on how they will be used and protected. Unfortunately, today, as before, in the land sphere the situation is far from being perfect and the agrarian question continues to remain one of the most acute in Russia. The bodies of legislative, executive and judicial authority can not part with old views on land till now. Despite of enormous modifications in social and economic spheres requiring serious reforming of the land relations, they quite often attempt to save the old order of land use in the greatest possible degree. Thus its incompatibility with market economy is not taken into consideration. To understand what is the source of these views, it is necessary to look at our recent past and to note, what ways we use now to reform the land relations. Without it it is impossible to understand, why at a federal level there is no land legislation, meeting modern demands, and some subjects of Russian Federation try to undertake the solution of land and legal problem.
Before lands were considered as an object of management. The legal regulation in the given field was reduced to installation of order of grant and exemption of the land lots, definition of the rights and duties of the citizens and legal entities in the field of usage and protection of land and so on. The economic part of land use was diligently shaded. On ideological motives the principle of free-of-charge usage of natural resources was established, the exclusive state ownership on them was declared and the only administrative character of redistribution of natural resources was provided. The rental relations, who thus inevitably arose, were hidden. Such distortions had a negative effect on the economic state of the country. It is enough to note, that USSR, and after its disintegration - the united republics becoming independent states, import a huge amount of food products. To overcome the problems, which have arisen in the land sphere, a land reform is necessary.
The modification of the land structure of Russia is proclaimed to be one of the main purposes of social and economic conversions, realised in previous years. Usage of lands became payable, private and municipal forms of landownership appeared, measures were taken to include land lots in the civil circulation and so on. However, if we turn to the content of federal laws and decrees of the President of Russian Federation, on the basis of which the land reform is carried out and which fixes its results, we shall see the inconsistency and clear legal imperfectness of these laws. The Civil code of Russian Federation (one of the best legislative acts in Russia) regards a land lot as real property, but property right and other real rights on land are defined in the separate chapter, which entered into force with the adoption of the land Code of Russian Federation. Thus, on the one hand, land lot is no longer regulated by the general provisions of the civil legislation on property, and on the other hand - the application of special civil and legal standards on land is not supposed, if it does not correspond with land legislation. Considering the fact that the federal laws on land claim for the introduction of another, than in the civil legislation, order of solution of land and property problems, the application of the Civil Code of Russian Federation in this part is rather problematic. The refusal to accept the fact that land is the real estate, not only formally, but practically, entails introduction of the land tax instead of the real estate tax and application of many other not very successful legal constructions. As to decrees of the President of Russian Federation, they have program, rather then regulatory, character and, naturally, can not substitute laws, though it is hard to overestimate their importance for the market economy setting. At least it is possible to affirm that they are not sufficient to maintain the normal law order in the land sphere. Besides they have serious legal defects, too.
Such development of land legislation bewilders, as the constitutional basis for standard legal regulation of agrarian questions is created. The constitution of Russian Federation, on the one hand, defines land legislation as independent branch in the Russian legal system, and on the other - underlines the necessity of definition of order and conditions of the land use in the federal acts (item “ê” part 1 article 72 and item 3 of article 36). The land legislation is non-random stipulated in legal classifier of branches of the Russian legislation prepared by the Main state-legal control department of the President of Russian Federation according to the Decree of the President of Russian Federation of December 16, 1993 ¹ 2171. The constitutional standards concerning the importance of land, independence of land legislation and establishing role of the federal acts in the agrarian questions regulating, are fixed along with the provisions of the Constitution of Russian Federation defining fundamentals of a market turnover of lands. So, the variety of the forms of the landownership is established, private property on land is accepted, the guarantees of realisation of the rights of the land lot owner (articles 9 and 36) are defined. To fulfil the indicated provisions of the Constitution of Russian Federation it is required only to change the usual system of legal regulation of agrarian questions. Nevertheless it does not happen now.
The federal land legislation currently in force does not correspond till now with the Constitution of Russian Federation and continues to regulate agrarian questions on the basis of regulations of the Soviet land law and its theoretical base. In the meantime current situation strongly requires the development of the new approaches to the regulating of agrarian questions. The land legislation should make free economic activity and government administration, which are now in many respects incompatible, harmonise. Without a cardinal modification of views on ways of the land and legal problem solution it will be impossible to create an interdependent system of land legislation.
The federal land legislation is extremely complicated. There is a set of the federal laws and other normative legal acts of Russian Federation concerning agrarian questions, but they are not systemised. Many regulations not only of the land legislation of USSR and RSFSR, but also of the new land legislation of Russian Federation have actually lost force, or there is an acute problem on their lawfulness. Owing to political or other reasons the federal acts, which constitutionality is rather doubtful, come into force in a series of cases. The gaps in federal land legislation are clear. The indicated oversights of the federal land legislation testify that nowadays it can not be a well regulator of the appropriate relations.
The solution of agrarian questions has been recently directly connected with the problem of adoption of the land Code of Russian Federation. For some reason the public thinks that the fact of entry into force of this legislative act is capable to improve the crisis in federal land legislation. So could be, if the content of the land Code of Russian Federation did not reflect the ideology of separate political forces. For many deputies of State Duma of the second convocation and members of the Council of Federation private property on land and market circulation of the land lots looked simply unacceptable. They did not stake at all the problem on regulation of limitations of the property right and other rights on land, and also projects regarding definition of precise frameworks of the civil circulation and other modes of land redistribution were not presented. They were the principal opponents of private property and land market. The land Code of Russian Federation worked out inside the State Duma of the second convocation, contains explicit signs of influence of the indicated part of legislature. But the communist majority of the State Duma of the second convocation rejected even this compromise variant. The land Code would play a positive role, if it has defined the circulation ability of land and has envisaged limitations of the rights on land. Certainly, now, when these problems are not solved, we can not speak about the civilised market of land. Alas, the political burden of an agrarian question does not allow federal institutions to concentrate on legal aspects of regulating of the land problems themselves.
At this depressing background, when the legal problems of the land relations regulating have gained at a federal level not a political sounding, appropriate to their role, the development of the land legislation of the subjects of Russian Federation took different directions, occasionally diametrically opposite. Locally the strong effect on a content of land legislation is rendered by such regional peculiarities of political character, as rushing to the sovereignty, “condoling” of the authorities of opposition or reformers and so on. It is necessary to pay special attention to general characteristic of the land legislation of the subjects of Russian Federation.
According to items “â”, “ä” and “ê”, part 1, article 72 of the Constitution of Russian Federation problems of possession, use and disposal of the land, of usage and protection of lands, of the land legislation are in common responsibility of Russian Federation and subjects of Russian Federation. The item 2 of article 12 of the federal Law “ On principles and order of differentiation of the matters of proxy between bodies of state authority of Russian Federation and bodies of state authority of the subjects of Russian Federation ” defines that before the adoption of the federal acts on problems referred to subjects of share responsibility, the subjects of Russian Federation have the right to perform their own legal regulation on such questions. After adoption of the appropriate federal law, the laws and other normative legal acts of the subjects of Russian Federation are put in correspondence with the adopted federal act. The indicated constitutional demand, which is disclosed in the special federal law, serves as a serious legal ground for independent legal regulation of agrarian questions at a regional level. The impossibility at the given stage to adopt the federal laws on land opens a space in the legal land problem solution.
However not only the indicated reason allows the subjects of Russian Federation to develop the land legislation according to their own consideration. The deputies of the State Duma of the second convocation attempted in due time to convince public that it is illegal to start purchase - sale of the land before the adoption of correspondent federal law. The given declaration which has been made out as the special decree, was the result of adoption of the Law of the Saratov region “ On land ”, where the alienation of not only garden lots and similar parcels, but also of other lands, including agricultural lands, was supposed. The Saratov governor has refuted this declaration without any effort, referring on federal constitutional standards having higher legal force and direct operation of the Constitution of Russian Federation on all the territory of Russia. Actually, it was turning out that the regional law was realising the demand of the Constitution of Russian Federation on private property on land, which at a level of the federal legislative authority remains like something unnoticed. It is curious, that the court in this problem was on the side of the Saratov authorities and has refused to recognise the Law on the Saratov region “On land ” as improper.
Striving of some subjects of Russian Federation for the sovereignty influences considerably the legal regulation of agrarian questions at a regional level. They consider the treaties on differentiation of proxies and terms of reference as a legal base allowing their independence in appropriate fields. The Republic Tatarstan can serve an example in this respect, its land legislation will be discussed below.
What common tendencies in development of land legislation of the subjects of Russian Federation can be pointed out?
First of all, this is an adoption of the regional codified legislative acts on land. Thus the lawfulness of such actions is quite often justified by the fact that according to the Decree of the President of Russian Federation of December 24, 1993 ¹ 2287 " On putting of land legislation of Russian Federation in correspondence with the Constitution of Russian Federation " an appreciable part of the land Code of RSFSR is recognised invalid, and also that the federal lawmaker during almost a whole decade refuses to accept the legislative acts on land, responding modern demands. If the references to the passivity of the federal lawmaker in a solution of the legal land problem are obvious, it is possible to argue with the affirmation about preserved till now legal vacuum in the field of legal land regulation caused by the evocative Decree of the President of Russian Federation. The hysteria concerning the irreparable gap in the legal land regulation, supposedly created by the President of Russian Federation, does not find the confirmation.
Nevertheless, this myth continues to exist. In particular, authorities of Goskomzem of Russia P.F. Loiko and V.F.Mogusev in theses of their report on an International congress “ Legal problems of land and agrarian reform in countries of Central and East Europe, Russia, Belarus, Ukraine, and other countries of CIS, Baltic states ” on September 9-10, 1999, taking place in Minsk, spoke about the following: "The crisis in law creating activity has appeared and then has gone deep by the end of 1993".
The decree of the President of Russian Federation of December 24, 1993 " On putting the land legislation of Russian Federation in correspondence with the Constitution of Russian Federation " has practically destroyed on 50 % the land Code of RSFSR, in force since 1991. The vast legal vacuum was formed, which is not permitting competently from the point of view of the legislation to regulate the relations, related with possession, usage and disposal of land, both at a level of the state as a whole, and at a domestic level of the citizens, firms and organisations ".
The conclusion is following: as soon as there is no possibility to restore the Code at a federal level, it is necessary it to do it at a regional level. The question is, was there anything to destroy? The matters of the property and civil circulation of lands were considered by the Code differently, than it is established by the Constitution of Russian Federation. For example, the citizens had no right to receive land in property for the enterprise activity, and legal entities had no right to have land in private property at all.
The property relations in the Code were regulated in a way, as if the civil local law has no relation to the land lots at all. The preservation of similar standards would lead to the alteration of the constitutional rights, the President of Russian Federation is the guarantee of. The constitution of Russian Federation also required conducting differentiation of a state property. The recognition of the federal property, property of the subjects of Russian Federation and municipal property on land inevitably caused a question on illegality of the statements of the Code, according to which the local authorities had the state land property in a complete disposal, and in some cases the state authorities of the subjects of Russian Federation were in command of the federal property land. After adoption of the Civil Code of Russian Federation and some other federal acts the references on the huge legal vacuum, which have arisen because of the cancelling of a series of standards of the land Code of RSFSR, call at least, bewilderment. Another problem is, why the circulation ability of lands is not yet established, it means that the lands withdrawn from the civil circulation and restricted in it are not indicated, and also the limitations of the rights on land are not defined and the state property is not differentiated. The land Code of RSFSR did not touch these problems at all. Thus, there is an impression, that the adoption of the codified legislative acts at a regional level, on the one hand, completes standards of the abolished Land code, and on the other - removes its gaps and other oversights. There are different approaches to a content of the codified legislative acts on land in different subjects of Russian Federation, but because of a legislative confusion in legal land problems at a federal level they look justified in any case. The codified legislative acts on land were adopted not in all subjects of Russian Federation. However stable increase of their number is seen. The legislative acts are adopted in the forms of laws or codes. There is no principal difference here. It is obvious, that the subjects of Russian Federation have accepted the tradition, formed in USSR, of the land relations regulation by the codified legislative acts, with other normative legal acts are promulgated in their further development. The land Code of the Republic Bashkortostan (which new edition is articulated in the Law of Republic Bashkortostan of February 25, 1999 ¹ 221-ç “ On modification and supplements in the land Code of Republic Bashkortostan ”, Law of Novosibirsk region of November 12, 1998 ¹ 28-03 “ On regulation of the land relations in Novosibirsk region ”, Law of the Saratov region of November 17, 1997 ¹ 57-ÇÑÎ “ On land ” may be taken as an example. As we see, the codified legislative acts on land are adopted in Ural and in Volga area, and in Siberia. What does make them alike? An attempt to install legal regulation of the land relations under the conditions of market economy. In one case under a cover of “sovereignty”, in others - with the purposes of realisation of the statements of the Constitution of Russian Federation on private property on land or federal acts accepting private property and circulation of lands on occasion.
Besides adoption of the codified legislative acts on land in the subjects of Russian Federation the obvious tendency to promulgate special laws regulating particular agrarian questions is noticed. At a federal level just now the Government of Russian Federation has decided to adopt the similar normative acts. In 1999 it brought in the drafts of the federal acts “ On the state land cadastre ”, “ On the valuation of lands ”, “On state and municipal lands ” and
“On a land-use system ”. While the federal Act “On the state land cadastre ” has been just brought into power, and the destiny of other draft laws is not known. Either they will successfully pass all phases of the legislative process, or they will share the destiny of the land Code of Russian Federation. In the subjects of Russian Federation the promulgation of the similar legislative acts goes already rather intensively and with the explicit signs of acceleration. In particular, it is possible to enumerate the following legislative acts: the law of the Nizhniy Novgorod region of October 28, 1998 ¹ 18-3 “ On a land-use system ”, Law of the Chita region of February 17, 1999 ¹ 149-340 “On grant and withdrawal of the land lots on the territory of the Chita region ”, Law of Tomsk region of October 23, 1998 ¹ 173 “ On recognition of lands as the property of Tomsk region ”, Law of the Republic Kareliya of December 31, 1997 ¹ 248-ÇÐÊ “ On limiting sizes of the land lots granted to the citizens in their property ”, Law of the Saratov region of June 5, 1997 ¹ 36-ÇÑÎ “ On the termination of the rights on land on the territory of the Saratov area ”, Law of the Moscow region of June 7, 1996 “ On the command of the land lots being state property and used for the support of enterprise activity on the territory of the Moscow region ”. The presented list of the special land legislative acts shows the scales of appropriate actions at a regional level in geographical, temporal, and subject plan.
In the conditions, when the special federal acts on land are not adopted, the federal lawmaker took the paths of including of separate norms (standards) of the land right to the federal acts not included in the system of land legislation. The subjects of Russian Federation took the same paths. The third tendency in development of land legislation at a regional level is the regulation of agrarian questions in the legislative acts, though affecting agrarian questions, but having other subject of regulation. I shall illustrate this statement by some legislative acts: the law of the Republic Bashkortostan of July 29, 1998 , ¹ 177-Ç “ On the hypothecation ”, Law of the Chita region of April 22, 1999 ¹ 166-340 “On a subsidiary small-holding ”, Law of the Pskov region of December 28, 1995 ¹ 34-03 “ On management of nature in territory of region”, Law of the Moscow region of January 9, 1997. ¹ 4/97-03 “ On arrangement and functional zoning of the territory of the Moscow region ”, Law of city of Moscow of December 9, 1998 ¹ 28 “ On town-planning zoning of the territory of city of Moscow ”.
From the publications in mass media, and from special legal and other literature it can be seen, that many experts do not know about availability of the indicated regional laws or deliberately do not pay them any attention. Only the federal land legislation is discussed or analysed. However it is necessary to take into account, that the regional laws are the laws in force, and many problems, originating in practice are solved on their basis. The scholastic reasoning on their unconstitutionality and illegality, although confirmed by the references to general requirements of the federal legislation, will hardly have serious legal consequences. The federal acts on land strictly speaking, is still absent, and those legislative acts, which contain standards of the land right, are obscure or their lawfulness is not obvious from the point of view of the Constitution of Russian Federation. Irrespective of a view on the problems of relation of the federal and regional land legislation, the knowledge of land legislation of the subjects of Russian Federation is necessary now.
Having considered legal bases and tendencies of land legislation development at a regional level, it is expedient to analyse common peculiarities of regulating of the land relations in the separate subjects of Russian Federation.
The land legislation of each subject of Russian Federation is very specific. Nevertheless though conditionally enough they can be grouped together. Thus it is necessary to put a political constituting in a basis of appropriate gradation. Despite the wish to stay apart from a political background of the legal land problem, it arises inevitably. To pretend, that it does not exist, means to refuse to look in eyes of the truth.
Only politics and politologists may, probably, judge how politically expedient those or other operations in the land-legal sphere are. In this case it would be desirable to evaluate the circumstances from the point of view of norms of the Constitution of Russian Federation, local law and rules of legal technique. This approach is reasonable because at the review of the legal land problem the purely legal matter frequently disappears, yielding a place to ideological debates, where political favours of the opponents prevail. It is characteristic for the civil officers and scientists, including lawyers as well. Now the Constitution of Russian Federation, which fixes a base of market economy, is in force, therefore from the legal point of view it is necessary to justify the need of realisation of the constitutional demands for the solution of the legal land problem.
All subjects of Russian Federation fix fundamentals of market economy in a land area in this or that extent. The differences consist in a degree of their sequence. One subjects of Russian Federation solve more appropriate problems, than federal centre, others tend to go together with it, and thirds lag behind, not wishing to accept the market relations in land area in full extent. It is necessary to underline once again a conditional character of this subdivision, since in the subjects of Russian Federation, belonging to the named groups, on some directions the explicit advance in development of land legislation is seen, while on others - not. Some subjects of Russian Federation demonstrate their independence in the solution of agrarian questions, and others tend not to go out of the frameworks of federal legislation, there are subjects of Russian Federation, which perceive a position of federal legislative or executive authority. Under such circumstances it is at least aberrant to affirm, that in some subjects of Russian Federation the land legislation is better, than in others.
Taking all that into account, it would be reasonable to give a characteristic of land legislation of the subjects of Russian Federation, regulating the land relations on a following basis:
- the agreements about differentiation of the matters of reference and responsibilities (on an example of the Republic Bashkortostan and the Republic Tatarstan);
- the constitution of Russian Federation and decrees of the President of Russian Federation (on an example of the Samara area);
- the federal acts and decrees of the President of Russian Federation on land (on an example of the Primorsky region);
- the federal laws which are not conceding the land circulation in some areas (on an example of the Krasnodar region).
The main legislative act regulating the land relations on the territory of the Republic Bashkortostan, is the land Code of the Republic Bashkortostan; its new edition is articulated in the Law of Republic Bashkortostan of February 25, 1999 ¹ 221-3 “ On modification and supplements in the land Code of Republic Bashkortostan ”). According to the article 1 of this Code in accordance with the Constitution of the Republic Bashkortostan and the Agreement between Russian Federation and the Republic Bashkortostan of August 3, 1994 “ On differentiation of the terms of reference and mutual delegating of proxies between state authorities of Russian Federation and state authorities of the Republic Bashkortostan ” the land legislation is under the jurisdiction of Republic Bashkortostan.
Thus, the Code inferred territory of Republic Bashkortostan out of responsibility of the federal land legislation. The illegality of this step is obvious. Even if to abstract from the affirmation convincing enough that in a part, contradicting the Constitution of Russian Federation and federal acts, the Agreement can not be considered valid, the lawfulness of the declaration of land legislation by an area of exclusive support of the Republic Bashkortostan is more than disputable. The item 5 of article 3 of the above stated Agreement has referred to support of the Republic Bashkortostan a solution of problems of possession, use and disposal of land being property of its multinational people according to the local law of the Republic Bashkortostan and the agreements with federal authorities of Russian Federation. In the Agreement the land legislation is not mentioned at all, and it is possible to understand that “property” in the given context is only the property of the Republic Bashkortostan.
In the Agreement nothing is said about regulating the land relations exclusively by the Bashkir local law too. At the same time in the Code the statements of the Agreement are interpreted by regional authorities according to their own comprehension, and rather far from the literal sense of the appropriate declarations. It is necessary to underline, that these discussions have tiny practical value. The standards considering operation on the territory of the Republic Bashkortostan of only its land legislation, are not yet admitted unlawful. If to analyse a content of the Code, it becomes clear, that the overwhelming number of its standards is doubling the demands of the land Code of Russian Federation reviewed now by State Duma. The same approaches to definition of land resources composition and to their governmental management are fixed in it. However regarding the land property and civil circulation of the land lots the Code has another position, than left communistic majority of the State Duma of second convocation. All patterns of land property are recognised, including private property, and also the civil circulation of the land lots is included. The private property on lands is forbidden when their predestination interferes with their turnover, and also on some lands of agricultural assigning. The direct indications about private property on other lands, as a rule, are not present.
For example, only from general requirements of the Code it is possible to make a conclusion about private property on land and civil circulation of the land lots in an area of enterprise. Not the Constitution of Russian Federation, but the results of republican referendum of December 17, 1995 on land are the legal basis for including of these regulations in the Code. The republic Bashkortostan, having accepted a position of the moderate part of State Duma of the second convocation in a solution of the legal land problem, tries here to underline its independence from federal centre. The similar approaches are seen in other legislative acts of Bashkortostan dealing with agrarian questions. The law of Republic Bashkortostan of July 29, 1998 ¹ 177-3 " On the hypothecation " doubles the majority of the regulations of the federal Law " On the hypothecation (deposit of the real estate) ", but does not mention anywhere the action of the federal legislation. This case is very indicative in that relation, how does the Republic Bashkortostan provide the unity of economic and legal space of Russian Federation. On the one hand, by doubling standards of the federal legislation, it guarantees their application, and on the other - demonstrates the independence from the federal centre. The difference between the Russian and Bashkir laws on the hypothecation is that the latter one supposes the deposit of a more broad range of the land lots. If the article 62 of the federal Law it is allowed to pledge garden, subsidiary and other similar lots, and also lands occupied by buildings and structures, and only to the extent necessary for their economic maintenance, the article 62 of the Law of the Republic Bashkortostan shows the possibility of pledge of the land lots being in private property. Since the land Code of the Republic Bashkortostan supposes private property on land, where the state property is conserved under the federal acts, the hypothecation in Bashkiria in a series of cases will be applied contrary to demands of the federal Act. Nevertheless in this part the Bashkir law will correspond with the Constitution of Russian Federation and decrees of the President of Russian Federation, which suppose private property on land for the enterprise purposes and provide limitations of the proprietary rights, only if it will aggrieve to an environment and offend the rights and legitimate interests of other entities.
The land legislations of the Republic Bashkortostan and the Republic Tatarstan are very alike. In Tatarstan as and in Bashkortostan, the codified legislative act on land is the basis of the land legislation development. The land code of the Republic Tatarstan of June 10, 1998 ¹ 1736 and Land code of the Republic Bashkortostan have no principal difference with the land Code of Russian Federation reset by the President of Russian Federation to the State Duma regarding the questions of definition of a composition of lands and the procedure of governmental administration of land resources.
However there are significant differences in Tatarstan and Bashkortostan regarding differentiation of proxies with state authorities of Russian Federation in a land area. The article 2 of the land Code of Republic Tatarstan supposes an operation on the territory of Tatarstan of the law of Russian Federation within the frameworks, defined by the Agreement of Russian Federation and the Republic Tatarstan " On differentiation of the terms of reference and mutual delegating of proxies between the state authorities of Russian Federation and state authorities of the Republic Tatarstan ".
The content of the Agreement has no special contraventions with the Constitution of Russian Federation in the part of land regulations. Of course, it is indicated in it that the state authorities of the Republic Tatarstan solve problems of possession, use and disposal of land, but at the same time is said about share accomplishment of proxies in a land sphere or reference of some of them to the responsibility of Russian Federation, for example, it applies to land legislation problems of the shared use of lands, installation of legal bases of the uniform market. Moreover, the article 2 of the land Code of the Republic Tatarstan indicates that its land legislation is based on the Constitution of Russian Federation. Under such circumstances it is impossible to speak about the refusal of the Republic Tatarstan to recognise action of the land legislation of Russian Federation on its (Tatarstan) territory.
The republic Tatarstan considers the priority of demands of the Constitution of Russian Federation over the federal acts in the field of the property on land and civil circulation of the land lots. On this set of problems Tatarstan follows mostly not the federal acts, but demands of the decrees of the President of Russian Federation. It is possible to tell, that in Tatarstan this problem is solved even more sequentially, than at a federal level.
By the decree of the President of the Republic Tatarstan of March 24, 1995 ¹ ÓÏ-192 " On regulating the land relations in Republic Tatarstan " the private property on land is established and secured, the transmission of lands to the property of the citizens and legal entities for the purpose of the enterprise activity is permitted, the lands circulation ability is defined, the forms of the civil circulation of the land lots are indicated, and they are declared to be the real estate.
The land code of the Republic Tatarstan has strengthened the indicated position at a legislative level and has recognised all patterns of the land property. In contrast with the federal acts the Code has solved the problem on the land lots, which can not be in private property, basing on concrete needs of the society. From article 83 of the Code it can be understood, that the assigning of particular land lots mentioned (common use, state natural reserves and so on), instead of reason of political-ideological character, has served as encumbrance to transmission at private property. The Code stipulates the withdrawal of these lands from the civil circulation (item 2 of article 82).
The problem with the land lots for an agricultural production and support of a farmer facilities is also reasonably solved. The assigning of lands is again taken as a basis. The private property in itself does not hinder with the keeping to assigning of agricultural lands, but at a free circulation the modification of their special-purpose designation is possible. One can assume that for these reasons the Code only restricts the circulation of the mentioned lands, but does not eliminate it (item 3 of article 82).
The particularities of sale and purchase, donation, pledge, succession and other agreements with the land lots are envisaged In the Code. Thus, the Code has created legal bases of the agrarian questions solution under the conditions of market economy. The Code is not the ideal legislative act and has a series of significant oversights. For example, fairly declaring agricultural lots as having restricted circulation ability, it for some reason put their grant to the farmers and other individual businessmen dependent upon necessity of passing the examinations and receiving the license (item 1 of article 94). It is possible to consider such conditions, say, for the hereditary peasants not only as nothing justified, but also even humiliating. At the same time the similar oversights do not belittle positive features of the Code. It have solved the main agrarian questions, problems of the land property circulation ability of the land lots, land deals, state management of land resources under new economic conditions.
After declaration of a series of articles of the land Code of RSFSR invalid by the President of Russian Federation the questions regarding the legislation which should solve some land problems arose. Earlier it was already pointed out, that the fears concerning the relevant legal gaps are strongly exaggerated. However in separate areas the gaps in land legislation have really appeared. First of all it is related to the granting and withdrawal of the land lots, and also the indemnity to the owners of land, land tenants and land users. At a federal level the legislative authority has refused to remove the similar gaps, having centred on gambling with private property on land and civil circulation of the land lots. It is easy to guess that the federal acts properly regulating the market relations have not appeared too. The land local Law of the Republic Tatarstan took the path of elimination of the gaps in the federal legislation caused by the cancelling of a series of the land-rights standards, as well as the refuse to regulate the new market relations. The decrees of the Chamber of Ministers of the Republic Tatarstan of November 30, 1998 ¹715 " On the affirmation of the Regulation on the order of withdrawal and granting of lands of state property, to the enterprises, citizens and their unions " (with supplements of February 15, 1999), of February 12, 1993. ¹ 54 " On the affirmation of the Regulation on indemnity to the owners of land, land tenants, land users, leasers and losses of agricultural and forestry production caused by exemption of lands or temporal occupation, the aggravation of quality, limitation of usage of the land lots, Standards of cost of assimilation of new lands instead of withdrawal of ones and List of operations, on which the refunds envisaged for reimbursement for agricultural and forestry production losses may be spent " (with modifications of June 13 and July 2, 1996, and of November 10, 1998), of March 21, 1996 ¹221 " On the affirmation of the Regulation on the order of conducting of competitions and auctions on sale of the land lots and other transactions with the land " (with modifications of February 15, 1999).
The land legislation of the Republic Bashkortostan and the Republic Tatarstan is directed, on the one hand, on regulation of the land relations in conditions of market economy, and on the other - on the extension of the regional rights. Thus as a basis of the land legislation creation they consider the contracts on differentiation of the terms of reference and authorities. It looks surprisingly, but, from the legal point of view Tatarstan conducts more consistent policy on agrarian questions in the field of fixing the market relations and considerably more weighted policy in relation to federal centre, than, say, Bashkortostan. Whether the references to a so-called “separatism” and “parade of sovereignties”, concerning land and legal problem are objective, time will show, when the special federal acts on land will come into force and the problem on their correspondence to the Constitution of Russian Federation will be forgotten. If the subjects of Russian Federation will refuse to make their laws correspond with the stated federal acts, there will be legal basis to speak about their unconstitutionality and illegality. But now this question is not acutel. Without land legislation, adapted for market economy, even regional, it is impossible to solve the whole complex of social and economic problems.
The bases for development of land legislation of the Samara area are the demands of the Constitution of Russian Federation and decrees of the President of Russian Federation. The federal acts, which groundlessly restrict private property and civil circulation in the land sphere only to garden, country and similar sites, are not regarded at the land relations regulation in the Samara area. The decrees of the President of Russian Federation on land are not only realised, but the normative legal acts are issued to ensure their execution. In particular, the decree of the governor of the Samara area of September 25, 1997 ¹ 277 “ On measures on realisation of the Decree of the President of Russian Federation of 16.05.97 ¹ 485 “ On guarantees to the owners of the real estate objects in acquiring of the land lots located on these real estate objects” and perfecting of the order of sale of the land lots ”.
In the Samara area people understand, that the land reform requires creation of appropriate legal base. It is impossible to be restricted here to decrees of the President of Russian Federation and subordinate legislation, published to ensure their execution. The land reform should be conducted on the basis of laws. At the same time it is impossible to ignore completely the position of the federal authorities, differently how is it possible to provide the unity of economic and legal space, which serves the basis for the standard social and economic situation in the country as a whole and subjects of Russian Federation. The governor of the Samara area has a sane position. In the decree of April 27, 1998 ¹ 105 “ On the affirmation of a complex plan of the area administration on realisation of the message of the President of Russian Federation to the federal Assembly “ by common forces - to the raise of Russia (On a situation in a country and main directions of the policy of Russian Federation) ”, document “ Twelve businesses of the Government of Russia in 1998 in the field of economic and social policy ” and program of social and economic development of the Samara area in 1998 ” he has scheduled some measures on creation of the legal fundamentals of a land reform. So, the target is set to develop regional normative and legal base regulating the deposit of the land lots, sale of the land lots on tenders, valuation of lands, zoning of lands, land-use system, state land cadastre, control of the public lands.
The legislative authority of the Samara area, unlike the federal, has occupied a constructive position. The regional legislative acts regulating land relations in conditions of market economy have appeared. They are worked out substantially on the basis of the provisions of the Constitution of Russian Federation and decisions of the President of Russian Federation on land.
Among the legislative acts of the Samara area on agrarian questions the Law of the Samara area of July 16, 1998 ¹ 11-ÃÄ “ On land ” holds the central place. The article 1 of this Law without any stipulations recognises operation of the federal legislation on the territory of the Samara area. The question on limits of independence of the Samara area in legal regulation of the land relations is solved in the Law “On land ” within the framework of the Constitution of Russian Federation.
The categories of lands, condition of their usage and protection, order of grant of state and municipal grounds, right and duties of the citizens and legal entities in the field of usage and protection of lands, control of land resources, protection of lands, payment for land, refund of losses of an agricultural production at exemption of lands (chapter 4, 8, 11, 13- 16) are defined in the Law on land, as a rule, according to federal land legislation. Whereas the new federal acts on the indicated problems are not present, the separate incorrespondances of the Law “ On land ” with the legislative acts of RSFSR and Russian Federation in the given part can not be seen as ignoring of the position of federal legislative authority. Moreover, they can be considered as elimination of the gaps before the solution of these problems in the federal acts.
Land-property relations are different. Here the Law “ On land ”, on the one hand, tries to follow particular demands of the Civil Code of Russian Federation and some other federal acts, and from other - the decrees of the President of Russian Federation on land. If the federal acts on land contain the exhausting (short enough) list of types of the land lots, which can be in private property, the Law “On land ” names only the basis of appearance the right of private property on land, that is privatisation of state and municipal lands, and also agreement on alienation of the land lots (article 26). At the same time the words about the possibility of acquiring in private property of these types of land can be quite often found in the text of the Law "On land". So, not only the private property on sites, garden, country and land lots, similar to them, is supposed, but also on the land lots for individual enterprise activity (the item 2 of article 41), used by the citizens and legal entities diligently and openly for a period more than fifteen years (article 46) and so on. Thus, the Law “ On land ” permits to acquire in private property land lots even in those cases, which are not mentioned in the decrees of the President of Russian Federation.
However, realising demands of the Constitution of Russian Federation and Civil code of Russian Federation, the regional lawmaker exhibits an inconsistency. A reason for it is the indeterminacy of a position of the federal authority on the set of problems. If on questions of private property and transactions with land the President of Russian Federation, unlike the federal legislative authority, requires to realise the provisions of the Constitution of Russian Federation, which is expressed in the decrees on land; on other questions there is no such uniqueness. Article 129 of the Civil Code of Russian Federation shows the necessity of definition of the turnover ability of lands. Some subjects of Russian Federation (for example, the Republic Tatarstan) have already defined the types of the land lots withdrawn from the civil circulation or with the limited turnover ability. The Samara area does not solve this problem and has accepted by that the civil turnover of almost any lands, which can result in serious negative consequences. According part 3 of the article 35 of the Constitution of Russian Federation nobody can be dispossessed of his asset differently as on the base of the decision of the court. Articles 128 and 130 of the Civil Code of Russian Federation define both land lots, and property rights on them as asset. Therefore, it is possible only judicially to terminate the rights on land. Articles 69 and 71of the Law “ On land” establish not judicial, but administrative order of termination of the rights on land. In this case Samara area, as other subjects of Russian Federation, does not want to fulfil the requirements the Constitutions of Russian Federation, though the same reproach can be made concerning Russian Federation as well. The stated oversights testify an imperfection of the legislative acts on land even in those subjects of Russian Federation, which tend to respect the demands of the Constitution of Russian Federation and decrees of the President of Russian Federation.
The Samara area did not limit to adopt only the codified legislative act on land at reforming the land relations. On its basis other laws were also promulgated. The Law of the Samara area of April 16, 1999 ¹ 14-ÃÄ “ On the pledge (hypothecation) of lands of agricultural assigning ” is of special interest. The explicit refusal to follow demands of the federal act is seen here. Articles 5 and 63 of the Federal act “ On the hypothecation (pledge of the real estate) ” directly forbids the hypothecation lands in the state and municipal property, and also agricultural lands of the agricultural organisations, peasant (farmer) facilities and the field land lots of personal part-time farms. It would be possible to regard the Law of the Samara area “ On the pledge (hypothecation) of lands of agricultural assigning ” as a challenge to Russian Federation, if in the item 3 of article 1 of this Law it was not noted, that it acts before the adoption of the federal act on the pledge of lands of agricultural assigning. Most likely, it is the challenge to fractions of the communists and agrarians of State Duma of the second convocation. It is known that they did not want to introduce the hypothecation of agricultural lands for ideological reasons, as they are opponents of private property and do not want to realise in the given part the demands of the Constitution of Russian Federation. With the purposes of reforming the land relations the Law of the Samara area of March 22, 1999 ¹ 12-ÃÄ “ On land valuation ” is promulgated as well. The indicated Law does not have such challenging character, as the previous, but without such laws it is impossible to provide a standard market circulation of land.
The land legislation of the Samara area sequentially fixes the market relations in a land sphere. In a series of cases it is even in front of federal legislation. However in particular spheres it preserves conservative character. Progress in some questions is combined with a regress in others. But it is all the same better then the federal land legislation. The example of the Samara area is a very good example not only the loss by the federal legislative authority of the initiative in agrarian questions regulating, but also its elimination from the solution of one of the most vital problems in Russian Federation.
The public authorities of the Primorye Territory temporize in a solution of the land and legal problem. There are no special territorial laws on land, and at the level of the executive authority only the separate subordinate legislation which is not affecting principle land and legal problems is promulgated.
Nevertheless in the Primorye Territory people understand the necessity of legislative settling of land relations in new economic conditions, but suppose, that the given problem should be solved at first at a federal level. In the investment program of the Primorye Territory on 1999 - 2003, affirmed by the decree of the governor of the Primorye Territory of November 21, 1998, it is underlined that the overcoming of crisis cases in the investment activity depends in particular on perfecting the federal legislation. Among the federal acts, the lack of which brakes growth the of investments, Land code is mentioned. Before adoption of this and other federal acts the public authorities of the Primorye Territory do not consider necessary to pass special laws on land. The governor of the Primorye Territory in those few decrees, which concern agrarian questions immediately, underlines, that they are passed according to the particular decrees of the President of Russian Federation and governmental orders of Russian
Federation and in supplement of these acts. Among them are: the decrees of the governor of the Primorye Territory of April 9, 1996 ¹ 241 “ On recultivation of lands, taking out, conservation and rational usage of a fertile layer of soil” and of March 7, 1997 ¹ 99 (in edition of the decree of July 3, 1998 ¹ 343) “ On the affirmation of the Provision about the order of sale of the land lots occupied by the privatized firms and other privatized object of uninhabited fund in the Primorye Territory ”.
The lack of laws and other normative legal acts of the Primorye Territoryon land has boosted the role of the department acts articulating the application of federal land legislation on the territory of the Primorye Territory. The committee on land resources and land-use system of the Primorye Territory has issued a range of commands and letters on land and legal subjects. For example, the letter of February 18, 1999 ¹ 18/096-05-12 “ On grant of the land lots to the citizens in life heritable possession ”, letter of February 22, 1999 ¹ 18/106 (02-06) “ On ordering of sale and purchase of a land shares”, command of February 4, 1999 ¹ 17 “ On the giving of the right-establishing documents ”.
Curious is the fact that not as much the local public authorities, but particular federal structures of the executive authority tend to change the situation in the land and legal sphere in the Primorye Territory. It is confirmed be the letter of the Committee on land resources and land-use system of the Primorye Territory in the State Committee of Land of Russia (SCL) of February 12, 1999 ¹ 18/086 (01-03) “ Plan of measures on raise of effectiveness of usage and protection of lands”, where the generalized plan of appropriate measures for 1999 is presented. Among them is the preparing for consideration in the Duma of the Primorye Territory of the draft laws “ On the protection of land resources on the territory of the Primorye Territory ”, “ On a land-use system in the Primorye Territory ”, “ On minimum marginal sizes of peasant facilities on the territory of the Primorye Territory ”, presentation to the governor of the territory of the draft decree “ On the order of conducting of the land valuation on the territory of the Primorye Territory ” and so on. The given plan of legislative work was presented not under the initiative of the indicated territorial body of appropriate federal department, but under the command of the SCL of Russia ¹ 12 of December 30, 1998 “ On conducting the enlarged session of collegiate Organ of the SCL of Russia ” and letter by the SCL of Russia ¹ ÁÂ-220 of February 2, 1999. This fact tells us that the specialized federal department wants to be the initiator of the regional land legislation development and it can seem to be strange. It is not clear what are the purposes of it. Nevertheless in immediate prospects it is quite possible to forecast a cardinal change in the system of land legislation of the Primorye Territory. Probably, one more subject of Russian Federation will enter in the list of the subjects of Russian Federation, realizing legislative regulation of the land relations independently.
Earlier it was mentioned, that on the Primorye Territory the territorial laws on land are not passed yet. It was also noted, that the governor of Territory did not promulgate the acts, which would contradict the federal acts, decrees of the President of Russian Federation and governmental orders of Russian Federation. There is a question, how does the Primorye Territory provide the vital activity in the land sphere in conditions of market economy? Anyway, the clearness is needed in the problems on private property on land, on the civil circulation of land lots and the control of land resources. The federal land legislation can not be a rigorous governor of the land relations in the given moment. It is known, that the federal acts which include norms of the land law, do not realize to the full the demands of the Constitution of Russian Federation and in a series of cases are not compounded with the decrees of the President of Russian Federation on land, which are passed in the performance of the constitutional norms and permit private property and circulation of lands, though the federal acts do not suppose it. Some gaps in federal land legislation are also clear. In practice the land and legal problems inevitably arise and require the immediate solution. It is impossible to imagine, that the Primorye Territory has not planned any solution of this problem. Such solution and rather original was found. It shows once again, the original method of solution of the land and legal problem in the different subjects of Russian Federation. The law of the Primorye Territory of February 9, 1996 ¹ 28-ÊÇ “ On local self-government in the Primorye Territory ” (with modifications and supplements, brought in in 1996 - 1999) is a basis of legal regulation of the land relations in the Primorye Territory.
To be exact, this basis is only the article 12 of this legislative act defining powers of local authorities in the field of usage of land and other natural resources, and in the field of nature protection. According to this article almost all land and legal regulation is transmitted to local authorities. These are such powers, as installation of a special-purpose designation and permit of the land usage; definition of the particular category of lands and land transfer from one category in another; grant in life heritable possession, termless (constant) and temporal use, transmission to the property, leasing of the land lots; withdrawal of the land lots; elimination of lands from circulation according to categories, special-purpose designation, value for municipal formation; installation of the list of inalienable and of partly alienable land lots; introduction of norms of free-of-charge grant of the land lots in property, constant (termless) use and life heritable possession, introduction of encumbrances and other easements on the land lots being in support of local authorities.
Any references to the established order or other local law, which are sometimes made in the named article, should not deceive anybody. Content of the normative acts of bodies of the local self-government, one of which will be considered below, testifies that the solution of a land and legal problem, is essentially transmitted to municipal formations in the Primorye Territory. The question on constitutionality and lawfulness of such approach in a solution of land and legal problem hardly should be debated. However it would be desirable to mark the following. The federal land legislation has not solved till now the question, what lands should be in federal property, in property of the subjects of Russian Federation and in municipal property. In a series of cases the lawfulness of private property on some types of land is questionable. Till now the control and disposal of lands is mainly reserved behind local managements. Under such circumstances critic of the local law of the Primorye Territory can seem a pure demagogy.
The way the questions of sale and purchase of the land lots in particular territories of the Primorye Territory are solved, it is possible to see on an example of the Ussurian region. A legal basis of acquiring of land lots in private property in appropriate municipal formations is the Temporal regulation on the order of sale and transmission of lands of the city Ussuriisk and settlements of the Ussurian region in the property of citizens and legal entities, approved by a decree of the Duma of the city of Ussuriisk and Ussurian region of March 31, 1998. According to items 1.1 and 1.2 of this Regulation it acts before adoption of the land Code of Russian Federation and appropriate laws of the Primorye Territory and is worked out on the basis of the federal acts, decrees of the President of Russian Federation and decrees of the governor of the Primorye Territory. At the same time the Regulation defines problems, which are not solved by the federal land legislation and land legislation of the Primorye Territory. In particular, the item 3.1 contains the list of lands and land lots, which are not subject to sale and acquisition (transmission) to the property, and the section 6 defines the rights of the land lot owner. The analysis of such norms of the Reglation shows that the local authorities remove the gaps and vaguenesses of land legislation in force, defining the circulation ability of lands, limitation of the right of private property on land and singularities of the order of acquiring land lots. Thus it is apparent, that the indicated norms are directed at the public interests protection. It is impossible to tell, that they are in all cases justified, quite often it is possible even to argue on their lawfulness. However in our situation the presence of such norms is better, than their lack.
The Primorye Territory refers to those subjects of Russian Federation, which tend to avoid confrontation in a land sphere both with legislative and executive authorities of Russian Federation. An attempt to follow in the greatest possible measure the demands of federal acts, decisions of the President of Russian Federation and Government of Russian Federation is seen here. When it is impossible, it is underlined in the normative acts of local authorities, that the appropriate norms are in force, if other is not established by the local law of Russian Federation, or the references to a certain foreseen local law of Russian Federation the order are made. The Primorye Territory shows in what difficult situation a subject of Russian Federation can be wishing to respect the federal land legislation. Making seem that federal acts and other normative legal acts of Russian Federation are kept to, the Primorye Territory actually, though constrained, but, nevertheless, breaks their demands. It is unfair to blame the
Primorye Territory for it, as it is necessary to look for reasons of such situation not in its public authorities, but in the position of the federal legislative authority and particular structures of the federal executive authority on land and legal problem.
A large attention is given to the problems of legal regulation of the land relations in the Krasnodar Territory. The laws of the Krasnodar Territory on land show it. The central place among them holds the Law of Krasnodar Territory of August 8, 1995 ¹ 13-ÊÇ “On the special order of land use in the Krasnodar Territory ” (with modifications, brought in the Law of Krasnodar Territory of May 8, 1999 ¹ 181-ÊÇ). This legislative act shows, that on the territory of the Krasnodar Territory regulation of agrarian questions is based on a position of the federal legislative authority, to be exact - by the left communist majority of State Duma of the second convocation. Despite demands of the Constitution of Russian Federation and decrees of the President of Russian Federation, the problems of private property on land and civil circulation of the land lots are solved on the Krasnodar territory only on the basis of demands of the federal acts and draft laws on land, which were made by the deputies of the State Duma of the left opposition.
The preamble of the Law on the Krasnodar Territory “On the special order of land use in the Krasnodar territory ” state, that the land on the territory of the Krasnodar Territory, being in any property: state (federal, territorial), municipal, private, common share can not a subject of sale and purchase and other agreements on a transfer of ownership rights, except for the agreements with the land lots granted for the purpose of the individual housing construction, personal part-time farm, gardening, market-gardening and also in other cases directly foreseen law. The problem of sale and purchase and other agreements on a transfer of property rights of lands of agricultural assigning can be solved only by the House of Assembly of the Territory. Thus, on the territory of the Krasnodar Territory contrary to the Constitution of Russian Federation and Civil code of Russian Federation, on the one hand, in a series of cases the owner has no right to dispose of the asset, if it is not directly stated in the law, and from the other - private property on those or other lands can be established only by a legislative authority. The norms regulating land and property relations, are formulated without the registration of demands of the civil local law. This position is very characteristic for the opponents of private property on land and civil circulation of the land lots, which quite often speak about the inapplicability of the civil right norms in relation to the land lots. Probably, on the Krasnodar territory this position has found comprehension.
The law of the Krasnodar Territory “On the special order of land use on the Krasnodar territory ” has established private property on land and has allowed the land lots circulation when it is supposed by the federal acts. Not only private property and possibility of civil circulation of the garden and similar to them land lots is fixed in it (article 11), but also after the federal Act “ On agricultural cooperation ”, the Town-planning code of Russian Federation supposes the appropriate agreements with land shares (article 12), and also with the land lots for the purpose of building (article 17). A question on a possibility of receiving the land lots in property for the purpose of enterprise activity the Law did not allow, as it seems. However it is possible to make a conclusion from the content of the Law, that the businessman (though this concept is not used, that also is nonrandom) can get the land lot not only for the purpose of building.
At the same time it is impossible to affirm, that the regional lawgiver respects completely federal acts. So, the article 11 of the Law on the Krasnodar Territory “ On the special order of land use in the Krasnodar territory ” defends any agreements with field sites of personal part-time farms, though the federal act speaks only about impermissibility of their pledge, and the articles 11 and 14 of the mentioned Law of the Krasnodar Territory suppose privatization of the land lots granted for collective market-gardening and their disposal despite the lack of such norms in the federal acts. The law of the Krasnodar Territory “ On the special order of land use on the Krasnodar territory ” and Law on the Krasnodar Territory of May 13, 1999 ¹ 180-ÊÇ “On control over state property of the Krasnodar Territory ” has differentiated state property on land on federal and territorial, though this problem, according to the item 5 of article 214 of the Civil Code of Russian Federation can be solved only in the order established by the federal act. All this testifies about application by the territorial lawgiver of the double standards at a solution of land and legal problems. When the positions of the federal and territorial lawgiver coincide, the accent is made on the necessity of keeping to the demands of the federal acts. In the cases, when they are not co-ordinated, the federal acts are not taken into consideration.
The special importance is paid in the Krasnodar territory to the problems of protection of lands of an agricultural assigning. Thus in the Krasnodar territory the term “ appropriate protection ” means not only protection of lands, as it is fixed in section IX of the land Code of RSFSR (rational usage, recovering of efficiency, raise of fertility and so on), but also application of the different sanctions as penalties, termination of the land rights and so on. In the Law on the Krasnodar Territory of December 2, 1996 ¹ 54-ÊÇ “ Protection of lands of agricultural assigning ” four articles only concern land protection, but problems of grant and withdrawal of lands, termination of the rights on land, administrative liability, refund of harm and losses are dealt with in ten articles. Such wide content of the concept “protection of lands of agricultural assigning ” is non-random. Such treatment allows to govern property and other relations originating in a land sphere otherwise than it is established in the Civil Code of Russian Federation, Code of RSFSR on administrative violations and other legislative acts of Russian Federation. The article 35 of the Constitution of Russian Federation notes, that nobody can be dispossessed of the asset differently as on the base of the decision of a court. Article 8 of the Law of the Krasnodar Territory “On protection of lands of agricultural assigning ” supposes the forced extrajudicial procedure of deprivation of the citizens and legal entities of the land lots, owned by them. Thus the refund of their cost is also supposed. In case of violation of the demands established by the named Law, after penalties and warnings are done it is offered to confiscate lands. The item 6 of article 11 of the Law defending the confiscation of land in the administrative order seems hypocritical. In some cases for committing offence confiscation of the land lots and in others - termination of the rights on land is supposed. The termination of the rights on land differs from confiscation in these cases only by character of the perfect offence and order of application of these sanctions. The law has also other oversights of a similar sort.
The land legislation of the Krasnodar Territory has embodied the ideology, which could not be completely embodied at a federal level in the juridical sphere by the State Duma of the second convocation because of the opposition of the President of Russian Federation. The position of the federal lawgiver on agrarian questions consists in the fact, that to hinder as much as possible from the introduction of private property on land and of the civil circulation of the land lots. If not it is possible to introduce appropriate defences, the owner or other participant of the land circulation is put in such conditions, when he can not dispose of the land lots without good will of bureaucracy. Such task can not be fulfilled without the complete exclusion of the land sphere from the competence of the civil local law. Therefore though orally the necessity of application of the civil local law is admitted, everything is done to use in practice norms of the land right, fixed in special laws on land instead of norms of the civil right. Really, how can it be possible to save absolute power of the official in a sphere of the land circulation, if the civil right declares equality, autonomy of will and property independence. If there is no possibility to forbid private property on land and civil circulation of the land lots, the attempt is made to regulate the land-property relations on the basis of a principle of imperous subordination of one party to the other. It is absurd to regulate questions on property, agreements and so on by norms of the land, instead of civil right. Nevertheless majority of the deputies of the State Duma of the second convocation considered it necessary to regulate the land-property relations not by civil, but land legislation.
The president of Russian Federation did not give a possibility to fix at a federal level this point of view in a federal legislation, as he considered, that it would result in infringement of the constitution of Russian Federation. However in some subjects of Russian Federation the position of the majority of the State Duma of the second convocation is taken for a basis of a solution of the land and legal problem in regional land legislation. Land legislation of the Krasnodar Territory - is a good example of how some locales regulate agrarian questions without the consideration of demands of the Constitution of Russian Federation, civil local law and decisions of the President of Russian Federation.
The further development of land legislation of the subjects of Russian Federation depends on what position in relation to the land and legal problem will occupy the State Duma of the third convocation. There are some reasons to think that the modifications in arrangement of political forces in the lower chamber of federal Assembly will influence directly the legislative activity affecting land questions.
It is most likely that there will be no such neglectful relation to appropriate constitutional demands, which the majority of the deputies of the State Duma of the second convocation had. However it is possible to forecast, that a series of political forces in the State Duma, first of all representatives of an agrarian party, having recognized private property on land and possibility of the civil circulation of the land lots, will attempt to introduce nonconstitutional limitations, referring to the necessity of prevention of gamble with agricultural lands and buying up of lands by the “ new Russians ”, foreigners from close and remote foreign countries. Thus norms regulating land and property relations first of all contrary to the Civil Code of Russian Federation will be offered, instead of norms providing limitations. There will be an attempt to make land legislation prior to civil legislation, wood and other independent branches of the local law. Such views related more to legal culture, rather than to protection of interests of agrarian and other spheres, will influence essentially the development of land legislation.
However another variant is also possible: the state Duma will create a legal basis of the land market, having defined the circulation ability of lands and having fixed the limitations of the rights on land in complete correspondence with the Constitution of Russian Federation, Civil code of Russian Federation, in view of branch construction of the Russian legal system and with keeping to the rules of legal technique.
The development of regional land legislation depends in many respects on what federal acts on land will the State Duma of the third convocation pass. If agrarian question becomes again a subject to political gamble, the federal acts on land will begin to ignore the demands of the Constitution of Russian Federation, the land legislation will be proclaimed prior to other branches of the local law, first of all to civil local law, the old situation when the locales realize legal regulation of the land relations themselves will stay. Thus their reproaches concerning the incorrespondence between the federal acts and the Constitution of Russian Federation, their alienation from the Russian legal system, lack of legal culture, will be justified. If the federal acts on land are made in another way, there will be no reason not to make them correspond to the laws of the subjects of Russian Federation. In this case it will be possible to blame the subjects of Russian Federation in not keeping to the Constitution of Russian Federation, and the judicial authority can, no doubt, easily solve the problem on unconstitutionality and illegality of the appropriate regional laws.
It is clear, that the prospects for the development of regional land legislation now depend on those political processes, which happen at a federal level. Probably, in the nearest future the initiative in the land and legal problem solution will pass from regional to a federal level.