The owner of the waste is obliged. Construction waste - whose is it? Waste ownership

Article 4 of the Law “On Waste” interprets the right of ownership of waste as belonging to the owner of raw materials, materials, semi-finished products, and other products and products, as well as goods (products) as a result of the use of which waste was generated.

By another person, this ownership right to waste can be acquired on the basis of civil contracts (purchase and sale, exchange, barter, donation or other transaction on the alienation of waste).

The owner of hazardous waste has the right to alienate them to another person or transfer them for processing while remaining the owner (tolling raw materials), only if that other person has a license to carry out activities in the field of hazardous waste management.

If the waste is abandoned by the owner, then the person who owns the land plot or other facility where the abandoned waste is located can turn it into his own property (Article 226 of the Civil Code of the Russian Federation).

Having begun to use waste or having performed other actions indicating that they have been turned into property, a person has a pre-emptive right, in any case, for their processing and consumption.

The owner has the right to use waste without a license, if this does not contradict the terms of the license, as well as the provision of paragraph 4 of part 1 of Article 22 of the Law "On Subsoil".

If the ownership has been transferred to another person, then he will need a license. Also, Article 18 contains a ban on providing subsoil for the subsequent production of building materials, if there is a possibility of using waste.

Ownership of the waste can be terminated in the event of a waiver of ownership, but a waiver terminates ownership if the waiver is accepted by the competent authority.

The law does not distinguish waste disposal as a denial or termination of the right to waste, and does not establish legal consequences.

The state is obliged to ensure the maintenance of a waste cadastre, including accounting for waste disposal sites and subjects of rights. At the same time, part of the waste falls into the category of hazardous, including radioactive. The use of which is subject to certain restrictions. See the Federal Law "On Industrial Safety of Hazardous Industrial Facilities", the Federal Law "On the Use of Atomic Energy".

Ownership rights.

The right to use - the right to extract individually - certain things, to extract useful properties, income and fruits.

Possession of a thing is the actual possession of it, the ability to bring certain improvements (redecoration, overhaul, up to reconstruction).

Disposal of a thing is the right to determine its fate up to alienation (to lease, hire, or otherwise change the owner or user of a thing).

Legal regime of geological information

Article 27 of the Law "On Subsoil":

Geological information may be in public or private ownership, depending on whose funds were used to obtain it.

Thus, legal regime information may be determined by the right of ownership or the right of use of other persons, and the forms of ownership may be different.

Ownership of information is not a real right, it is usually denoted by the term intellectual property, as well as in relation to works of science, literature, art and objects of industrial property (inventions, industrial designs) or means of individualization.

Means of individualization– trademarks, service marks, trade dress and mark.

Article 5. Waste as an object of ownership

1. Waste is an object of property rights. The right of ownership to waste can be transferred from one person to another in the manner prescribed by the legislation of the state.

2. The right of ownership to waste belongs to a legal or natural person whose production or other economic activity leads to the generation of waste and who, in exercising his right of ownership, is obliged to take measures to prevent harm to the environment and public health, to strive for a more complete and rational use of the original raw materials. The waste producer acquires the right of ownership to the waste from the moment of its formation, unless otherwise provided by the legislation of the state and (or) the agreement on the use of the property that was the source of the formation of these wastes.

3. The owner of the waste has the right to transfer the right of ownership to the waste, the ownership itself and the risk associated with such a transfer to other persons on the basis of a contract of sale, exchange, donation, other transaction on the alienation of waste or by performing other actions indicating the acquisition of waste in your property.

4. The owner of waste has the right to alienate waste into the ownership of another person, to transfer to him, while remaining the owner, the right to possess, use or dispose of waste, if this person has a license to carry out activities in the field of waste management.

5. Renunciation of the right of ownership to waste is allowed subject to compliance with the requirements of the legislation of the state on waste and does not entail the termination of the rights and obligations of the owner in relation to these wastes until the acquisition of ownership of them by another person, except in cases where the waste, in accordance with the legislation of the state subjected to removal.

6. In the event that filling out a waste hazard passport is mandatory in accordance with the legislation of the state, the owner of the waste, another person authorized by him, when making a transaction for the alienation of this waste, must transfer such a passport to the person to whom the right of ownership of the waste is transferred under the transaction.

7. When privatizing state-owned enterprises that have accumulated certain volumes of waste, the right of ownership of the waste and responsibility for the damage they cause to people's health, property of individuals or legal entities and the environment shall be transferred to new owners, unless otherwise provided by the legislation of the state or the terms of privatization of these enterprises.

The terms of privatization may provide for joint and several liability of the previous owner and the owner of the privatized enterprise for the harm caused by waste to the environment, health and life of the population.

8. The state is the owner of wastes that are generated at state-owned facilities or are located on the territory of the state and do not have an owner or the owner of which is unknown.

9. If the waste is abandoned by the owner or otherwise left by him in order to waive the right of ownership to them, the person who owns, possesses or uses the land plot, reservoir or other object where the abandoned waste is located, may turn it into his property, starting to use them or performing other actions indicating that they have been received into ownership in accordance with the legislation of the state.

Such a person is also entitled to claim in court compensation for damage caused to him in connection with the abandonment of waste on a land plot, regardless of their further use, unless otherwise provided by the legislation of the state.

10. The determination of the regimes for the use of waste, referred to in paragraphs 8 and this article, is entrusted to local state authorities and local governments, unless otherwise provided by the legislation of the state. Local government authorities and local self-government bodies keep records of these wastes and are responsible for compliance with the conditions for safe and resource-saving handling of these wastes with the prevention of their negative impact on the environment and human health.

11. Owners or users of land plots where waste that does not belong to them is found, are obliged to notify the relevant local government body or local government body about them, which, in turn, are obliged to take measures to determine the owner of the waste, their hazard class, record, passportization and decide on their handling.

This article critically analyzes the legitimacy of using such a conceptual apparatus as “waste ownership”, and also proposes an alternative approach to regulating relations significant for society related to determining the person responsible for paying for the negative impact on the environment.

At the legislative level, in law enforcement practice, as well as in the legal literature, there is such a thing as “ownership of waste”. In particular, such instructions are contained in Art. 4 of the Federal Law "On Production and Consumption Wastes" (hereinafter - Federal Law No. 89-FZ) 1 , letters from authorized bodies 2 , judicial practice, as well as in the works and comments of domestic researchers, including M.V. Ponomareva, N.S. Zinovkina, M.A. Ermolina, E.V. Luneva E.V., A.G. Dudnikova and others.

So, as an argument for the existence of such a legal category as “ownership rights to waste”, M.V. Ponomarev points out that production and consumption waste is a special object of civil circulation, movable things, the legal status and turnover of which is determined on the basis of the general provisions of civil law, taking into account special requirements provided for by the legislation on production and consumption waste and environmental protection. Special rules for the alienation and transfer of ownership of waste are closely related to the issue of ensuring that their owner fulfills the obligations to maintain his property, in particular, with compliance with environmental requirements 3 .

In turn, M.A. Yermolina also notes that the ownership of waste belongs to the owner of raw materials, materials, semi-finished products, other products or products, as well as goods (products), as a result of which this waste was generated 4 . A.G. Dudnikova points out that the owner of the waste is a person who has the right to dispose of this property freely, if this does not harm legally protected interests. As regards waste, it is impossible to dispose of waste by simply leaving it in the wrong place, since in this way the legally protected interests of the owner of the land plot, the environment, etc., protected by law, will be violated. But the owner of the waste has the right to transfer the waste to the property of the person who will legally dispose of it 5

With regard to the distribution of contractual obligations to pay for the negative impact on the environment, E.V. Lunena recommends including a condition in the content of the contractual structure, where the obligation to make payments for the negative impact on the environment is assigned to a specialized organization, on the transfer of ownership of the exported production and consumption waste. The fact is that in the civil law sense, wastes are things, therefore their legal regime is determined by the norms of both environmental and civil law 6 .

However, the use of the conceptual apparatus - "the right of ownership of the waste", regardless of the answer to the question of who should fulfill the public obligation to pay for the negative impact, raises certain doubts about the validity and legitimacy, both from the point of view of the public, and even more so - private law. In this connection, it seems relevant within the framework of this article to make attempts to study the existence of such a legal category as “the right of ownership of waste”, as well as to develop an alternative apparatus for regulating relations significant to society.

It seems that in order to analyze in detail and form a position on the issue under study, it is necessary to focus on two aspects:

1) determining the list of objects for which the right of ownership may arise;

2) the concept of waste.

When considering the issue in this plane, the arguments of G.S. Vasiliev, who subjected to critical analysis the Ruling of the Supreme Court of the Russian Federation dated February 4, 2015 in case No. 301-KG14-1670 in case No. A79-4567/2013 7, where the Judicial Collegium of the Supreme Court of the Russian Federation canceled the judicial acts of lower instances and recognized the bank’s demand for a refund, paid as payment for the negative impact, unreasonable and not subject to satisfaction, since the ownership of the waste, unless otherwise expressly provided in the waste disposal agreements concluded with specialized organizations, remains with the nature user (bank). In particular, the scientist puts forward the following theses relevant to this work:

1. Preservation of ownership of waste when handing it over to a specialized organization is not justified in any way in the decision. Modern garbage trucks not only mix the garbage of different senders, but also press it. The contents of the trash can, which could previously be considered an object of the nature user's property right, disappears;

2. Preservation of the right of ownership for the nature user means that both the specialized organization that carries out the removal of waste and the owner of the landfill where they will be buried, make transactions with someone else's property. The authority to do so cannot be derived from normative acts;

3. transfer of ownership under a service agreement (a contract for the provision of waste disposal services) is possible. The service in the case under discussion consists in the fact that the alienated objects have a negative market value, and therefore their owner not only cannot count on a reward for his property, but must himself pay for someone to acquire the object 8 .

Despite the fact that the scientist still does not deny the existence of such a legal category as “the right of ownership of waste”, he makes a very fair remark that deserves attention - “the right of ownership disappears from the owner of the property when the latter named it as waste”.

In this regard, it should be noted that, traditionally, the right of ownership is understood as the most complete absolute right related to such a category of rights as property rights. As rightly noted by E.A. Sukhanov, a typical property right is the right of ownership, the essence of which is revealed in "domination over property that has the value of a thing." At the same time, as the scientist rightly notes, only things, material objects (a physically tangible object) that have spatial characteristics, have the economic form of a commodity and, therefore, are related to objects of civil rights, are recognized as objects of real rights 9 . In other words, only a thing can have a value - a real value 10, i.e. have consumer properties that allow satisfying certain needs of a person from the relevant property, at the same time, if the thing has no economic value and cannot be considered as a commodity, such property is not a thing by its legal nature and cannot be recognized as an object of property rights - object of ownership.

The foregoing gives fundamental grounds for advancing the thesis: if a person indicates that a thing has been transformed into waste for him, the thing disappeared at once as an object of civil circulation and such a person lost the right of ownership to the said property, since the object of ownership can only be property that has real value, i.e. consumer properties.

However, it may seem to some that this kind of interpretation is incorrect, since the presence or absence of consumer properties for a particular object is an evaluation criterion and depends on who the subject is, in particular: for some, a lamp computer, an old car, a waste product of artiodactyl cattle , and for others, these are things that have consumer properties that can be used, for example, as a typewriter, vehicle or fertilizer. The tool for parrying this kind of reasoning is the answer to the question: what relationship describes (regulates) the right of ownership, and also in what meaning it is necessary to consider the term "waste": subjective or objective. It seems that the right of ownership regulates exclusively the subject - the object connection, i.e. prescribes for a specific individualized subject of social relations the rights and obligations in relation to a specific thing. At the same time, the term "waste", which is used both in the current version of the Federal Law No. 89-FZ, and in the earlier ones (for example, the version of 01/01/2014), is also defined from the point of view of the subjective perception of a particular person with a pre-existing a thing that possessed properties useful for the subject (his relations within the framework of the former subject-object connection). Therefore, in the context under consideration, it is necessary to conclude that if a person uses property, the right of ownership exists precisely for the thing, since there is a real (consumer) value, and, therefore, the subject - object connection 11 exists. In the event that the specified subject performs conclusive actions, for example, throws a thing into a container, it becomes waste and simultaneously with the performance of the indicated actions, the title to the thing disappears from the specified person, while no transformation (derivative method of occurrence) of ownership occurs and does not occur. may happen. In some cases, a third party, in no way connected with the previous owner of the thing, may acquire a “thrown away” thing according to the rules on an ownerless thing (Article 225 of the Civil Code of the Russian Federation (hereinafter referred to as 12 of the Civil Code of the Russian Federation)), treasure (Article 233 of the Civil Code of the Russian Federation) or processing (Article 220 of the Civil Code of the Russian Federation), however, all these models of turning objects into property are the primary methods of acquiring the specified absolute right, which also impose on such an owner the corresponding rights and obligations, while these methods do not have any connection with the previously existing right property. A similar approach, it seems, should be applied to the processes of sorting and disposal of waste, when in the process of technological processing (Article 220 of the Civil Code of the Russian Federation) new objects of civil circulation (things) with useful properties appear.

It seems that this approach is very reasonable, including from the point of view of the norms enshrined in the Civil Code of the Russian Federation, in particular Art. 236 of the Civil Code of the Russian Federation, which indicates that any person has the right to declare the termination of the right of ownership by performing appropriate conclusive actions. At the same time, the termination of the right of ownership to a specific object of civil circulation does not mean that the said person has also ceased all obligations, including those provided for by the norms of both public and private law. A similar situation occurs in contractual relations, where the moment of execution (termination) of the contract may not coincide with the moment of termination of all obligations incurred by its subjects from (the parties to the contract) at the moment of its conclusion 13 .

Thus, it is permissible to formulate the following conclusions:

1. the use of the concept of “ownership of waste” is incorrect and unreasonable both from the point of view of public and private law, since the right of ownership as a category of property law can arise only on a thing that has a real (consumer) value, which is near waste , obviously missing;

2. the existence of the obligation to pay for the negative impact on the environment does not arise due to the fact that the person has the right to own the waste, but insofar as the said person, in addition to the rights to a specific thing that he owns, has as well as obligations for its maintenance, including those related to the implementation of public events for the disposal of waste at special sites - landfills, in order to protect the public interest in a healthy environment.

Text footnotes for indexes in the article

1 Federal Law No. 89-FZ of June 24, 1998 (as amended on December 31, 2017) “On Production and Consumption Waste” (as amended and supplemented, effective from January 1, 2018) // Collected Legislation of the Russian Federation. 1998. No. 26. Art. 3009.

2 Letter of Rosprirodnadzor dated May 25, 2016 No. RN-03-03-31/9771 “On consideration of the appeal”, Letter of the Ministry of Natural Resources of Russia dated November 16, 2017 No. 12-47/30950 “On handling of used pipes of oil and gas pipelines”, Letter of Rosprirodnadzor dated July 13, 2015 No. OD-03-04-32 / 11939 "On consideration of the appeal", etc. // Reference and legal system "Consultant Plus": [Electronic resource] / Company "Consultant Plus".

3 Ponomarev M.V. Ownership of Waste: Legal Problems of Implementation and Transition // Journal of Russian Law. 2017. No. 8. S. 53 - 64.

Also, see: Zinovkin N.S. Review of judicial practice on the issue of payment for the disposal of production and consumption waste // Actual problems of Russian law. 2014. No. 2. S. 204 - 211.

4 See: Ermolina M.A. The principle of paid nature management and problems of law enforcement // Legal issues of construction. 2012. No. 1. S. 12 - 15.

5 Dudnikova A.G. Transfer of ownership of the waste: who will pay for the NWOS? // Handbook of ecologist. 2018. No. 5. P. 40 – 45.

6 Luneva E.V. Contractual regulation of payment for waste disposal: interaction of environmental and civil law // Ecological law. 2016. No. 1. P. 12 - 16.

7 Ruling of the Supreme Court of the Russian Federation of 04.02.2015 No. 301-KG14-1670 in case No. А79-4567/2013 // Consultant Plus Legal Reference System: [Electronic resource] / ConsultantPlus Company.

A similar position is found in other judicial acts. See: Ruling of the Thirteenth Arbitration Court of Appeal dated April 9, 2015 No. 13AP-343/2015 in case No. А56-64185/2014, Ruling of the Twenty-First Arbitration Court of Appeal dated January 27, 2016 in case No. А83-2004/2015, Ruling of the First Arbitration Court of Appeal court dated 04.10.2017 in case No. А43-20389/2016 // Consultant Plus Legal Reference System: [Electronic resource] / ConsultantPlus Company.

8 Vasiliev G.S. On the Owner of Waste - a U-turn of Judicial Practice // Law. 2015. No. 12. P. 106 - 112.

9 Sukhanov E.A. Property law: scientific and educational essay. M.: Statut, 2017. C. 14 – 17, 30 – 32, 70.

10 See: Belov V.A. Rent as a returnable obligation. Diss. … cand. legal Sciences: 12.00.03 / Belov Valery Aleksandrovich. Moscow, 2016. P.73, 94, 123, 125, 180.

11 See: Belov V.A. Status of a person: legal aspect // Actual problems of Russian law. 2017. No. 10. pp. 72-79.

12 Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-FZ (as amended on December 29, 2017) // Collection of Legislation of the Russian Federation. 1994. No. 32., Art. 3301.

13 See: p. 3 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 No. 35 “On the Consequences of Terminating the Agreement” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014. No. 8.

V.A. Belov,

PhD in Law, Responsible

editor of "News Digest" trade

and consumer law "legal

Institute "M-Logos", Moscow.

12.04.2007

Construction waste - whose is it?

The second way, according to experts, is preferable. Firstly, it is good for the environment, because the environment does not suffer. Secondly, this is good for the construction companies themselves, since the waste that is used as secondary raw materials is not charged to the budget.

Moreover, you can also earn money in this process. But in order to competently dispose of waste and not miss your profit, you need to know many nuances: legal, environmental, sanitary. They were discussed at the seminar Environmental Documentation in Construction Activities, which was organized by the Center for Legal Support of Nature Management (North-West Branch) and the Construction Weekly newspaper.

Natalia Petrova, Head of the Center for Legal Support of Natural Resources Management (North-West Branch), spoke about conflict of laws rules in waste management legislation.

The main question that arises from construction waste in relations between the general contractor, subcontractors and the customer is who does it belong to? The question is not idle, because who is the owner pays for the disposal of waste.

The problem is that the current legislation does not provide a clear answer to this question. There are several conflicting pieces of legislation.

The main normative act that has already been mentioned is the Federal Law on Waste Management, Art. 4 Ownership of waste. It states that the ownership of waste belongs to the owner of raw materials, materials, semi-finished products, other products, as a result of which these wastes were formed. Let's take a typical industry example with demolition of a building.

The customer is the owner of the building. He is the owner of the materials from which the house is built - concrete, brick, reinforcement, plaster. These materials generate waste. This means that it is the customer who must bear the burden of all payments and it is to him that the inspectors will come if there are problems with the garbage.

The second legislative block is Art. 751 of the Civil Code of the Russian Federation, regional act Rules for the management of construction waste and Decree of the Government of the Russian Federation 1112-ra of May 15, 2003. It says that the generators of construction waste are legal entities in the course of whose economic activity they were formed. Simply put, contractors and subcontractors are responsible for construction waste, because they are the ones who carry out the economic activities at the construction site.

In addition, in 2003, the Federal Law on Technical Regulation was adopted. In accordance with it, GOST was developed, which is still mandatory Interstate standard GOST 30772 2001 of December 28, 2001. He says that the waste owner is a legal entity responsible for the territories where these wastes are located.

Thus, we see that there are three different legislative responses to the question of the owner of the waste. The ideal situation is when the customer, the developer and the contractor are united in one person, but this is rare. Usually many organizations are involved in the construction process. And in each case, you need to look at the contract. Because the listed civil norms are valid, unless otherwise provided by the contract. And so they are advisory in nature. The agreement may also stipulate the transfer of ownership of the waste, Natalya Petrova noted.

The expert noted that the right to construction waste may be alienated. Now there are two legal ways to transfer rights to construction waste. It is possible to prescribe a separate section directly in the contract: the right of ownership of the waste and responsibility for it. Or, along with the contractor's agreement, it is possible to conclude a separate waste purchase and sale agreement, which is more correct, said Natalya Petrova.

The development of industry is causing the negative impact of harmful substances on the planet. Therefore, the owner of production and consumption waste is fully responsible for the consequences that arise due to improper handling of production products.

According to Federal Law No. 89-FZ, the owner of the products of production is the owner of the materials, raw materials, the result of the processing of which was the appearance of garbage.

Ownership of waste regulates the occurrence of no-man's landfills, which appear due to the unfair use of resources by the owner.

The owner is an individual entrepreneur or legal entity that:

1. Generates waste and recycles or disposes of.
2. Carries out other work with waste (alienation).

An individual has the right to own garbage:

• Owner of a private house.
• The owner of the apartment and / or other premises in a residential building.

The ownership of the waste belongs to the person (or company) who owns the resource that caused the pollution.

Waste that is stored in municipal landfills is the property of the municipal executive authority, usually the municipal service.

Civil Code

According to the Civil Code of the Russian Federation, the owner of the products of production is the owner of the raw materials, the processing of which caused the generation of garbage.

If the manufacturer produces products from raw materials owned by a third party, then the right to the resulting pollution belongs to the owner of the material.

The volume of waste according to the Civil Code is prescribed in Art. 24.7 No. 89-FZ. The legislation allows the owner to use his property in several ways:

• Sell.
• Give.
• Transfer the right to use with and without alienation.

Broadcast

In civil law Art. 4 indicates the possibility of transferring the owner's garbage into the possession of a third party.

Waste transfer can be:

• With the transfer of ownership.
• With retention of ownership.

Important! The right of ownership can be transferred even if the recipient does not have documents confirming the permission to transport, neutralize and store waste of hazard class I-IV.

Sale of waste

A person who buys garbage must have a license to independently carry out:

• collection.
• Transportation.
• Recycling.
• Accommodations and more.

The seller is not obliged to check the buyer's license (according to the amendment to the Federal Law No. 89 of December 29, 2014).

Only the owner of the raw materials from which they are formed can sell waste.

Transfer of waste to other organizations is carried out according to the contract:

• exchange;
• purchase and sale;
• donations;
• or other agreement.

The transfer of ownership is subject to taxation. The alienation of returnable raw materials (can be reused) is subject to value added tax (VAT), since garbage acts as a commodity intended for sale.

Free transfer of production waste is also recognized as an object of VAT taxation.