CC BY
32LEGAL GUARRANTEES OF CITIZENS' PARTICIPATION IN CULTURAL LIFE, ACCESS TO ITEMS OF CULTURAL VALUE AND PRESERVATION OF CULTURAL HERITAGE OBJECTS
Solovyanenko N.
PhD in law
Senior Research Fellow of Business and Corporate Law Department of the Institute of State and Law of the
Russian Academy of Sciences, Moscow, Russian Federation
Abstract
The article is devoted to the implementation of the constitutional right of citizens to participate in cultural life and use cultural establishments, as well as the obligation to ensure the preservation of objects of historical and cultural heritage, historical and cultural monuments. The article analyzes the legal relations that arise in the field of preservation of historical and cultural monuments, providing for the preservation, repair, restoration and adaptation of the object of cultural heritage for modern use. The benefits provided to legal entities that have invested their funds in the preservation of cultural heritage objects are considered.
Keywords: constitution, the right to participate in cultural life, historical and cultural monuments, immovable property, preservation of cultural heritage objects, lease agreement, compensation.
The Constitution of the Russian Federation (Article 44) guarantees the right of Russian citizens to participate in cultural life and to use cultural establishments, to have access to items of cultural value [1, 6]. The right of everyone to participate in cultural life and to use cultural establishments and to have access to items of cultural value, enshrined in the Constitution, is based on the recognition of the fundamental role of culture in the development and self-realization of the individual, the humanization of society and the preservation of the national identity of peoples, and the affirmation of their dignity [4]. The right of citizens to participate in cultural life includes such rights as the use of cultural establishments, access items of cultural value, to state library, museum, archive funds, and other collections in all areas of cultural activity. These rights of citizens correspond to the obligations of the State to ensure the general availability of cultural activities, items of cultural value, for example, to preserve the basic services of public libraries free of charge for the population. The State also assumes a special obligation to exercise its cultural patronage in relation to the least economically and socially protected segments and groups of the population. For example, persons under the age of eighteen are guaranteed the right to visit museums free of charge once a month [3]. Among the principles of the state policy in the field of cinematography, outlined in the Federal Law of August 22, 1996 "On State support of Cinematography of the Russian Federation", is the creation of conditions for the population to have access to works of cinematography. The Federal Law of May 26, 1996 "On the Museum Fund of the Russian Federation and Museums in the Russian Federation "guarantees citizens' access to museum objects and museum collections included in the Museum Fund of the Russian Federation and located in museums in Russia. Access restrictions may be imposed only on the grounds provided for by the legislation of the Russian Federation, including due to the unsatisfactory state of preservation of museum objects and museum collections, due to restoration work or the presence of a museum object or museum collection in the museum's storage (depository). Restriction of access to museum
objects and collections for reasons of censorship is not allowed.
The constitutional right to participate in cultural life and to use cultural establishments is correlated with the constitutional duty to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments [5]. The Federal Law of June 25, 2002 "On objects of cultural Heritage (historical and cultural monuments) of the peoples of the Russian Federation" corresponds to the understanding of cultural heritage set out in the Convention for the Protection of the World Cultural and Natural Heritage (Paris, November 16, 1972). The Federal Law defines objects of cultural heritage as objects of immovable property (including objects of archaeological heritage) and other objects with historically related territories, works of painting, sculpture, decorative and applied art, objects of science and technology, and other objects of material culture that have arisen of historical events. Cultural heritage objects are evidence of epochs and civilizations, authentic sources of information about the origin and development of culture and, accordingly, are of value from the point of view of history, archeology, architecture, urban planning, art, science and technology, aesthetics, ethnology or anthropology, social culture. The Russian Federation maintains a unified state register of cultural heritage objects (historical and cultural monuments) of the peoples of Russia. The duty to preserve historical and cultural heritage is universal. Russian citizens are guaranteed the preservation of cultural heritage sites [3]. To prevent actions that may cause harm to cultural heritage objects (damage, destruction or destruction, changes in the appearance and interior, violations of the established order of use, illegal movement), as well as to protect against adverse environmental impacts and other negative impacts, cultural heritage objects are subject to state protection. The annual state report on the state of culture in the Russian Federation includes objective systematized analytical information on the state and state protection of cultural heritage objects. Special duties are assigned to persons engaged in construction and architectural activities or using historical and cultural monuments. The Urban
Planning Code of the Russian Federation of December 29, 2004. prescribes compliance with the requirements for the preservation of cultural heritage objects in the implementation of urban planning activities.
Legal guarantees for the preservation of cultural heritage objects also include legally established measures of responsibility for non-compliance with the constitutional obligation [2]. Thus, it provides for the appointment of administrative penalties for violating the requirements of the legislation on the protection of cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation; organization or carrying out earthwork, construction or other works without the permission of the body exercising state supervision over the condition, maintenance, preservation, use, promotion and state protection of cultural heritage objects; destruction or damage to cultural heritage objects (historical and cultural monuments) of the peoples of Russia, objects that constitute the subject of protection of a historical settlement; failure to comply with the obligation to suspend work in the event of the discovery of an object that has the characteristics of a cultural heritage object, or work that may worsen the condition of the cultural heritage object or violate its integrity and safety; conducting archaeological field work without permission.
The Federal Law "On Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation" specifies as a subject of regulation the relations arising in the field of preservation, use and popularization of objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation, as well as the features of ownership, use and disposal of objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation as a special type of immovable property (Article 1). To implement and strengthen these relations, the Federal Law establishes benefits provided to individuals or legal entities that have invested their funds in the preservation of cultural heritage objects. The works on the preservation of the object of cultural heritage provided for in Articles 40-45 of the Federal Law include measures aimed at ensuring the physical preservation and preservation of the historical and cultural value of the object of cultural heritage, providing for the preservation, repair of the monument, restoration of the monument or ensemble, adaptation of the object of cultural heritage for modern use.
As a benefit mentioned above, paragraph 1 of Article 14 provides for the right of a natural or legal person who owns a cultural heritage object that is in federal ownership, the property of a subject of the Russian Federation or municipal property, who has invested his funds in the preservation of the cultural heritage object and has ensured their implementation in accordance with this law, to a preferential rent. The procedure for establishing preferential rents and their amounts in respect of objects of cultural heritage that are in federal ownership is determined in accordance with the decree of the Government of the Russian Federation of October 4, 2012, which approved the "Regulation on the establishment of preferential rents and their amounts to legal entities and individuals who own on the right of
lease objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation, who have invested their funds in their preservation and have ensured the performance of these works". In addition, paragraph 2 of Article 14 of the above-mentioned Federal Law provides for the right of a natural or legal person who owns an object of cultural heritage in federal ownership on the right of lease and has provided for the performance of works on the preservation of this object in accordance with the said law, to reduce the established rent by the amount of the costs incurred or part of the costs. The procedure for granting this compensation and its amount is determined by the lease agreement.
At the same time, the lease agreement may be prematurely terminated on grounds not related to the violation of contractual obligations, according to the provision of Part 4 of Article 15 of the Federal Law of July 24, 2008. "On assistance to the development of housing construction": such a contract is subject to early termination or termination, regardless of the grounds provided for by the Civil Code of the Russian Federation, by agreement of the parties or by a court decision.
If the lease agreement is prematurely terminated on grounds not related to the violation of contractual obligations, the lessee who has provided for the performance of works on the preservation of the object in accordance with the law "On Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation" has the right to monetary compensation for the costs incurred by him for the performance of works on the preservation of the object, if the lessor during the entire term of the contract did not reduce the established rent by the amount of the costs incurred by the lessee.
By virtue of Article 453 of the Civil Code of the Russian Federation, if, prior to the termination or amendment of the contract, one of the parties, having received from the other party the performance of an obligation under the contract, did not fulfill its obligation or provided the other party with unequal performance, the rules on obligations due to unjustified enrichment apply to the relations of the parties.
If the lessor during the entire term of the contract did not reduce the established rent by the amount of the costs incurred by the lessee in violation of the law "On Cultural Heritage Objects and the contract, the lessee is entitled to monetary compensation in accordance with Article 1102 of the Civil Code of the Russian Federation, which establishes the obligation to return the unjustified enrichment. This article of the Code provides that a person who, without the grounds established by law, other legal acts or a transaction, acquired or saved property (the acquirer) at the expense of another person (the victim), is obliged to return to the latter unreasonably acquired or saved property (unjustified enrichment), except for the cases provided for in Article 1109 of the Code.
For an obligation to arise from unjust enrichment, three conditions must be met, namely, if:
• there is an acquisition or saving of property, that is, an increase in the value of the acquirer's own
property, the addition of new values to it, or the preservation of the property that, for all legal reasons, was inevitably supposed to leave the composition of his property,
• the acquisition or saving is made at the expense of another person, and the property of the victim is reduced due to the withdrawal from its composition of some part or non-receipt of income on which this person could legitimately count,
• there are no legal grounds for obtaining property, that is, when the acquisition or saving of property by one person at the expense of another is not based either on the law (other legal acts) or on a transaction, which means that it is unfounded.
The documented expenses of the lessee who invested his funds and provided for the performance of works on the preservation of the object of cultural heritage provided for in Articles 40-45 of the Federal Law of June 25, 2002. "On Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation", which were not counted against the rent under the Contract, are the saved property (monetary funds) of the lessor at the expense of the lessee.
At the same time, there are no legal grounds for the lessor to save these funds, which means that it is unfounded. Such savings are not based on the law. It contradicts the provision of paragraph 2 of art. 14 Federal Law "On Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation", which provides for the right of a legal entity that owns an object of cultural heritage in federal ownership on the right of lease and has provided for the performance of works on the preservation of this object in accordance with this law, to reduce the established rent by the amount of the costs incurred or part of the costs. Due to the basic principles of civil legislation (paragraph 4 of Article 1 of the Civil Code of the Russian Federation), no one has the right to take advantage of their illegal behavior.
Saving is also not based on a transaction, since the lessor during the entire term of the contract did not reduce the established rent by the amount incurred by the lessee, which contradicts the provision of Part 1 of Article 309 of the Civil Code of the Russian Federation, by virtue of which the obligations must be performed properly in accordance with the terms of the obligation and the requirements of the law.
In this regard, it is also necessary to take into account the provision of paragraph 1 of the "Review of the practice of considering disputes related to the application of the rules on unjustified enrichment" (Annex to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 11, 2000 N 49), by virtue of which, upon termination of the contract, a party is not deprived of the right to claim previously performed, if the other party has unreasonably enriched itself.
Federal Law "On Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation", which provides in paragraphs 1 and 2 of Article 14 for various support measures (benefits) provided to individuals or legal entities that have
invested their funds in the preservation of cultural heritage objects, does not contain restrictions on the application of these support measures or prescriptions to choose from several benefits provided for by law.
The right of the lessee to preferential rent provided for by the Federal Law of June 25, 2002. is implemented in accordance with the approved Decree of the Government of the Russian Federation of October 4, 2012. "Regulations on the establishment of preferential rent and its size to legal entities and individuals who own on the right of lease objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation, who have invested their funds in their preservation and have ensured the performance of these works". The amount of the preferential rent is calculated taking into account the costs of the tenant for carrying out works on the preservation of the object of cultural heritage using an imperatively established formula and coefficient. The period (in years) for which the preferential rent is set is also determined by an imperative formula. The term of application of the preferential rent is limited to the term of the lease agreement. The use of this support measure (benefit) as the only one is not a sufficient guarantee of substantial and fair compensation for the costs incurred by the tenant, especially if the lease agreement is prematurely terminated regardless of the grounds provided for by the Civil Code of the Russian Federation, in accordance with the provision of Part 4 of Article 15 of the Federal Law of July 24, 2008. "On Assistance to the development of Housing Construction".
Such legal conditions do not encourage legal entities and individuals who own federally owned objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation to invest their funds in their preservation and ensure the performance of these works and, accordingly, contradict the objectives of Federal Law of June 25, 2002/ "On Objects of Cultural Heritage (Historical and Cultural Monuments) of the Peoples of the Russian Federation".
If the lessee has already used the measure of support in the form of preferential rent, it is possible to apply a benefit that provides for the right to reduce the established rent by the amount of the costs incurred or part of the costs (item 2 of Article 14 of the Federal Law of 25.06.2002. "On Objects of Cultural Heritage (Historical and cultural monuments) of the peoples of the Russian Federation"). This legal construction has a more specific compensatory orientation and a contractual nature. The procedure for granting this compensation and its amount is determined by the lease agreement. The ratio of the applied support measures in the absence of the relevant instructions of the law may be determined by the parties on the basis of the provision of Part 4 of Article 421 of the Civil Code of the Russian Federation, by virtue of which the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts.
References
1. Commentary on the Constitution of the Russian Federation / S. A. Komarov [et al.]; edited by S. A. Ko-marov. - 3rd ed., reprint. and add. - Moscow: Urait Publishing House, 2020 -- 333 p. - (Professional comments). - ISBN 978-5-534-06398-1. - Text: electronic / / EBS Urait [website]. - URL: https://urait.ru/bcode/453955 (accessed: 13.06.2021).
2. Dorovskikh E. M. CULTURE IN THE MIRROR OF THE CONSTITUTION OF RUSSIAN FEDERATION. In the collection: Constitutional culture: Universal values and national peculiarities. Collection of scientific works. Ser. "Pravovedenie" Center of social. nauch. - inform. research. Department of Legal Studies; Ed. Alferova E. V., Andreeva G. N., Moscow, 2011. pp. 201-213.
3. Dorovskikh E. M. LEGAL ASPECTS OF THE DEVELOPMENT OF THE INSTITUTE OF
CULTURAL RIGHTS OF CITIZENS//Laws of Russia: experience, analysis, practice. 2017. No. 12. pp. 9096.
4. Orlova O. V. INTERESTS OF THE INDIVIDUAL AND CIVIL SOCIETY//Law and the State: theory and practice. 2016. No. 2 (134). pp. 3337.
5. Orlova O. V. LEGAL FREEDOM AND RESPONSIBILITY OF THE INDIVIDUAL IN CIVIL SOCIETY//Legal policy and legal life. 2016. No. 2. pp. 21-26.
6. Tarasova A.V. CONSTITUTIONAL RIGHT TO ACCESS TO CULTURAL VALUES IN THE SYSTEM OF CULTURAL RIGHTS OF A PERSON AND A CITIZEN IN THE RUSSIAN FEDERATION//Bulletin of the Perm University. Legal sciences. 2014. No. 4 (26). pp. 56-60.
ВЫДЕЛЕНИЕ ОТДЕЛЬНЫХ КАТЕГОРИЙ ДЕЛ В ЗАОЧНОМ ПРОИЗВОДСТВЕ: К
АКТУАЛИЗАЦИИ ПРОБЛЕМЫ
Дубень А.К.
младший научный сотрудник
Федеральное государственное бюджетное учреждение науки Институт государства и права Российской академии наук
ALLOCATION OF SEPARATE CATEGORIES OF CASES IN ABSENTIA PROCEEDINGS: TO
UPDATE THE PROBLEM
Duben A.
Junior Researcher
The Institute of State and Law of the Russian Academy of Sciences
Аннотация
В настоящей научной статье представлены теоретические и практические аспекты особенностей рассмотрения судами отдельных категорий дел. Рассмотрена специфика заочного производства в судах по трудовым спорам. Проанализированы особенности рассмотрения судами дел о расторжении брака. Проводится анализ норм семейного и трудового права Российской Федерации в части исследования института расторжения брака в порядке заочного производства. Исследуется правоприменительная практика и представлена авторская позиция о проблемах, которые существует в теории права.
Abstract
This scientific article presents the theoretical and practical aspects of the peculiarities of the consideration of certain categories of cases by the courts. The article considers the specifics of absentee proceedings in labor disputes courts. The features of the consideration of cases of divorce by the courts are analyzed. The article analyzes the norms of family and labor law of the Russian Federation in terms of the study of the institution of divorce in absentia proceedings. The article examines the law enforcement practice and presents the author's position on the problems that exist in the theory of law.
Ключевые слова: заочное производство, отдельные категории дел, гражданский процесс, семейное право, трудовое право.
Keywords: correspondence proceedings, separate categories of cases, civil procedure, family law, labor law.
Право на судебную защиту является важнейшим правом человека, поскольку суды призваны обеспечивать надлежащую защиту всех иных прав и свобод. Таким образом, предусмотренное Конституцией Российской Федерацией право на судебную защиту является важнейшей гарантией по защите и восстановлению прав и интересов граждан, вместе с тем, данное конституционное право тождественно праву на доступ к правосудию, которое
предполагает возможность беспрепятственного обращения в суд за защитой, в рамках которого судебное разбирательство проходит с соблюдением всех правил. Право на доступ к правосудию всегда реализуется в определенной процессуальной форме с соблюдением правил судоустройства и судопроизводства. Институт заочного производства является одним из способов реализации права на доступ к
