"In the case of checking the constitutionality of the provisions of the second paragraph of the first part of Article 446 of the Civil Procedure Code of the Russian Federation in connection with the complaints of citizens F.Kh. Gumerova and Yu.A. Shikunov"

In the name of the Russian Federation

The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, G.A. Zhilina, S.M. Kazantseva, M.I. Kleandrova, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, N.V. Selezneva, O.S. Khokhryakova, V.G. Yaroslavtsev,

with the participation of citizen F.Kh. Gumerova and her representative, lawyer K.N. Vinokurov, representative of the Federation Council - Doctor of Law A.S. Salomatkin, Plenipotentiary Representative of the President of the Russian Federation in the Constitutional Court of the Russian Federation M.V. Krotova,

guided by Article 125 (Part 4) of the Constitution of the Russian Federation, Clause 3 of Part One, Parts Three and Four of Article 3, Part One of Article 21, Articles 36, 74, 86, 96, 97 and 99 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" ,

considered in an open session the case on checking the constitutionality of the provisions of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation.

The reason for the consideration of the case was the complaints of citizens F.Kh. Gumerova and Yu.A. Shikunova. The basis for the consideration of the case was the revealed uncertainty in the question of whether the legal provision contested by the applicants complies with the Constitution of the Russian Federation.

Since both complaints relate to the same subject, the Constitutional Court of the Russian Federation, guided by Article 48 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", joined the cases on these complaints in one proceeding.

Having listened to the report of the judge-rapporteur N.S. Bondar, explanations of the representatives of the parties, speeches of representatives invited to the meeting: from the Ministry of Justice of the Russian Federation - E.A. Borisenko, from the Prosecutor General of the Russian Federation - T.A. Vasilyeva, having examined the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. The second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation, which determines the types of property belonging to a citizen-debtor on the basis of ownership, which cannot be foreclosed according to executive documents, refers to such property a dwelling (its part), if for a citizen- the debtor and his family members living together in the premises belonging to it, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and in accordance with the legislation on mortgage, a claim can be levied on it.

1.1. The Kirovsky District Court of the city of Ufa, by a ruling of October 26, 2010, satisfied the application of citizen F.Kh. Gumerova on changing the method and procedure for the execution of the decision of the Kalininsky District Court of the city of Ufa dated April 1, 2008 on the collection of monetary funds under a loan agreement dated March 6, 2002, including the principal debt, interest under the agreement and expenses for payment of the representative's services, in the total amount more than 3 million rubles. When enforcing a share in the amount of 1/3 in the debtor's ownership of a residential building through the sale of this share at a public auction, the court proceeded from the fact that during the execution proceedings the debtor did not contribute any funds to pay off the debt, and all the measures taken by the bailiffs (the seizure of property in the amount of 6,280 rubles and the foreclosure on pension) did not give an effective result. Given these circumstances, the court concluded that the balance of interests of the participants in the enforcement proceedings can be achieved by extending the penalty to a part of the dwelling owned by the debtor and that such a decision will not lead to a violation of his social rights, since he will retain the right of ownership of share in the amount of 2/3 in the ownership of a residential building with an area of ​​332.5 sq. m.

By the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan dated June 23, 2011, the ruling of the Kirovsky District Court of the city of Ufa dated October 26, 2010 was canceled, the case was sent for new consideration to the same court, which, by a ruling dated September 22, 2011, left F. H. Gumerova without satisfaction, pointing out that the dwelling house owned by the debtor is for him the only dwelling place suitable for permanent residence in which he is registered, and therefore, due to Article 446 of the Code of Civil Procedure of the Russian Federation, collection cannot be levied on this property.

With reference to the same article of the Civil Procedure Code of the Russian Federation, the Dorogomilovskiy District Court of the City of Moscow, by its decision of May 13, 2008, upheld by the ruling of the Judicial Collegium for Civil Cases of the Moscow City Court of September 11, 2008, refused to citizen Yu.A. Shikunov in the satisfaction of the statement of claim for foreclosure and recognition of ownership of the defendant's share of 1/4 in the ownership of the residential premises - an apartment with a total area of ​​81 sq. m. Refusing to satisfy the stated requirements, due to the fact that the earlier decision of the same court of June 17, 2004 on the collection in favor of the plaintiff of the amount of money due to him under the loan agreement was fulfilled only partially, the defendant does not voluntarily pay the debt, and the repayment of outstanding debt in the amount of more than 1 million rubles. by foreclosure on other property belonging to her is impossible due to the absence of such, the court proceeded from the fact that for the defendant the said dwelling was the only one suitable for permanent residence and that its share was 20.25 sq. m, i.e. exceeds the social norm by only 2.25 square meters. m.

The ruling of the judge of the Moscow City Court dated January 23, 2009 and the ruling of the judge of the Supreme Court of the Russian Federation dated August 13, 2009 in the transfer of supervisory complaints by Yu.A. Shikunov was refused for consideration in the court session of the supervisory instance court.

1.2. By virtue of Articles 74, 96 and 97 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation, checking on complaints from citizens the constitutionality of legal provisions applied in a particular case, the consideration of which has been completed in court, and affecting constitutional rights and freedoms, for violation referred to by the applicant, makes a decision only on the subject indicated in the complaint, and only in respect of that part of the act, the constitutionality of which is questioned, assessing both the literal meaning of the legal provisions in question and the meaning given to them by official and other interpretation or established law enforcement practice, and also based on their place in the system of legal norms, without being bound in the decision-making by the grounds and arguments set out in the complaint.

The violation by paragraph two of part one of Article 446 of the Code of Civil Procedure of the Russian Federation of its rights guaranteed by Articles 15 (parts 1 and 4), 17 (part 3), 19 (parts 1 and 2), 35 (parts 1 and 3), 45, 46 (part 1), 55 (parts 2 and 3) and 123 (part 3) of the Constitution of the Russian Federation, the applicants see that it does not ensure the proper and unconditional execution of the court decision that has entered into legal force on debt collection in a situation where a debtor citizen has there is no other property, apart from the residential premises belonging to him on the right of ownership, due to which it is possible to satisfy the creditor's claims, since it does not allow levying execution on such residential premises (parts of it) under court orders, if it is for the debtor and persons, dependent on him, the only one suitable for permanent residence, regardless of the general quantitative and qualitative characteristics of a particular dwelling, its actual use and regardless of whether that that part of it, which, after the satisfaction of the creditor's claims, could remain in the ownership of the debtor, will be at least as large as sanitary standards in area and will allow him and his dependents to retain the necessary level of existence.

Accordingly, the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation is the subject of consideration by the Constitutional Court of the Russian Federation in the present case insofar as it establishes as a general rule the prohibition of foreclosure under executive documents on a dwelling belonging to a debtor citizen by right of ownership ( part of it), if this dwelling is for the debtor citizen and his family members living together in this dwelling, the only one suitable for permanent residence.

2. The Constitution of the Russian Federation, proclaiming the recognition, observance and protection of human and civil rights and freedoms as the duty of the state (Article 2), guarantees everyone freedom of economic activity, the right to own property, own, use and dispose of it both individually and jointly with by other persons, protection of these rights and freedoms, including judicial protection, exercised on the basis of equality of all before the law and the court (Article 8; Article 19, parts 1 and 2; Article 35, parts 1 and 2; Article 45, part 1; article 46, part 1).

2.1. Turning to the issue of the implementation by the state in the person of the federal legislator in the regulation of property relations of the fundamental obligation enshrined in Article 2 of the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation came to the following conclusions.

Within the meaning of Articles 8 (part 2), 35 (part 1), 45 (part 1), 71 (paragraphs "c", "d", "o") and 76 (part 1) of the Constitution of the Russian Federation, property rights, including the grounds and procedure for its acquisition, transfer and loss, as well as the scope and boundaries of powers to own, use and dispose of property, are regulated by federal law. The content of this regulation, as follows from Articles 1, 2, 15 (part 4), 17 (parts 1 and 2), 18, 19, 34 (part 1) and 35 (parts 2 and 3) of the Constitution of the Russian Federation, cannot be determined federal legislator arbitrarily: property relations in the Russian Federation should be regulated in accordance with the principles of the rule of law, on the basis of legal equality and justice and on the basis that the right to property, as well as all other rights and freedoms of man and citizen, is recognized and guaranteed in the Russian Federation Federation in accordance with generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation.

Ownership and other property rights - by virtue of Articles 7, 15 (part 2), 17 (part 3), 19 (parts 1 and 2), 46 and 55 (parts 1 and 3) of the Constitution of the Russian Federation and proceeding from the general legal principle of justice - are subject to protection on the basis of proportionality and proportionality, so that a balance of rights and legitimate interests of all participants in civil circulation - owners, creditors, debtors is ensured; possible restrictions by federal law on the rights to own, use and dispose of property, freedom of entrepreneurial activity and freedom of contract must also meet the requirements of justice, be adequate, proportionate, proportionate, be general and abstract, not have retroactive effect and not affect the essence of these constitutional rights, i.e. .e. not to limit the limits and application of the relevant constitutional norms; the very possibility of restrictions and their nature should be conditioned by the need to protect constitutionally significant values, including a dignified life and free development of a person, the provision of which is the duty of the state, as well as the right of everyone to housing (Article 7; Article 40; Article 56, Part 3, of the Constitution of the Russian Federation Federation).

The universally recognized principles of inviolability of property and freedom of contract expressed in the Constitution of the Russian Federation, which presuppose equality, autonomy of will and property independence of participants in civil law relations, the inadmissibility of arbitrary interference by anyone in private affairs, determine the freedom of ownership, use and disposal of property, including the possibility of alienating one's own property to the ownership of other persons, to transfer to them, while remaining the owner, the rights of possession, use and disposal of property, and at the same time - the need to correlate the property right belonging to a person with the rights and freedoms of other persons. This means, in particular, that the owner has the right, at his discretion, to perform any actions with respect to the property belonging to him, if they do not contradict the law and other legal acts and do not violate the rights and legitimate interests of other persons; accordingly, it is assumed that the owner can fulfill his civil obligations at the expense of the property belonging to him, including those related to real estate.

The cited legal positions of the Constitutional Court of the Russian Federation, set out in its decisions (decisions of July 20, 1999 N 12-P, of June 6, 2000 N 9-P, of November 22, 2000 N 14-P, of July 12, 2007 N 10-P, dated December 20, 2010 N 22-P, dated April 22, 2011 N 5-P; definitions dated December 4, 2003 N 456-O, dated January 17, 2012 N 10-O-O, etc.) , fully extend to the relationship that binds the creditor and the debtor citizen who has not fulfilled his civil obligation and, therefore, is responsible for the property belonging to him to the creditor, including the possibility of foreclosure in cases provided for by law on property related to real estate, within the framework of enforcement proceedings.

2.2. As the Constitutional Court of the Russian Federation has repeatedly pointed out, the execution of a court decision, including a judgment in favor of a creditor in the event of a breach of a civil obligation by a debtor, within the meaning of Article 46 (part 1) of the Constitution of the Russian Federation, which guarantees everyone judicial protection of his rights and freedoms, follows considered as an element of judicial protection; accordingly, the protection of violated rights cannot be recognized as effective if a judicial act or an act of another authorized body is not executed in a timely manner, which obliges the federal legislator, when choosing one or another mechanism of enforcement proceedings within the limits of his constitutional discretion, to carry out a consistent regulation of relations in this area, to create for them a stable legal basis and not to question the constitutional principle of the enforceability of a court decision (decisions of July 30, 2001 N 13-P, of January 15, 2002 N 1-P, of May 14, 2003 N 8-P, of July 14, 2005 No. 8-P, dated July 12, 2007 No. 10-P and dated February 26, 2010 No. 4-P).

These requirements are consistent with Article 2 of the International Covenant on Civil and Political Rights, which obliges states to provide any person whose rights and freedoms are violated, effective remedies, as well as paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European By the Human Rights Court, which considers that the enforcement of a judgment rendered by any court must be regarded as an integral part of the “court” within the meaning of this article and that everyone's right to judicial protection would become illusory if the legal system of the state allowed for a final, binding judicial the judgment remained null and void to the detriment of one of the parties (judgment of 19 March 1997 in the case Hornsby v. Greece, of 7 May 2002 in the case Burdov v. Russia, of 27 May 2004 in the case of Metaxas Greece ", dated 29 March 2006 in Mostacciuolo v. Italy (no. 2), dated 15 February 2007 and in the case of Railean v. Russia, and others).

Since, by virtue of Article 17 (part 3) of the Constitution of the Russian Federation, the exercise of human and civil rights and freedoms has as its objective limit the obstruction of the exercise of the rights and freedoms of others, causing harm to their constitutionally guaranteed interests, the federal legislator, creating conditions that ensure equal judicial protection rights of the creditor (claimant) and the debtor (defendant) must proceed from the fact that the resulting conflicts of their legitimate interests, in any case, cannot be overcome by providing protection to some rights in violation of others, which are equivalent in their constitutional meaning.

In such cases, the rights and legitimate interests of participants in civil turnover should receive proportionate (proportional) protection based on the balance of constitutional values. With regard to the normative legal regulation of the resolution of conflicts of interests of creditors and debtors by the court, this means that the limits of possible collection under executive documents established by the federal legislator should meet the interests of protecting the constitutional rights of the creditor citizen, but they cannot affect the main content of the constitutional rights of the debtor citizen, the essence of which under no circumstances should be lost.

2.3. Property, being the material basis and economic expression of the freedom of society and the individual, is not only a necessary condition for the free exercise of entrepreneurial and other economic activities not prohibited by law, but also guarantees both the realization of other human and civil rights and freedoms, and the fulfillment of the duties stipulated by it, and the right of private property as an element of the constitutional status of an individual determines, along with other directly acting rights and freedoms of man and citizen, the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and is ensured by justice (Article 18 of the Constitution of the Russian Federation).

Accordingly, the federal legislator is called upon to ensure legal certainty, stability and predictability in the field of civil turnover, maintaining the highest possible level of mutual trust between economic entities and creating all the necessary conditions for the effective protection of property rights and other property rights. At the same time, it must proceed from the constitutional obligation of the Russian Federation as a social state to take care of the well-being of its citizens, preserving conditions for their normal existence, as well as from the constitutional foundations of the legal status of an individual, in particular the requirements of Article 17 (part 3) of the Constitution of the Russian Federation, in accordance with to whom the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons, in this case - the rights of the person obliged (the debtor), when, within the framework of enforcement proceedings, it becomes necessary to foreclose on property belonging to the debtor citizen in order to the dignity of the individual was not diminished and the socio-economic rights of citizens were not violated (Article 7, Part 1; Article 21, Part 1, of the Constitution of the Russian Federation; Article 25 of the Universal Declaration of Human Rights).

The indicated constitutional principles of the relationship between the individual, society and the state also apply to relations associated with the implementation of the right to housing guaranteed to everyone by Article 40 (Part 1) of the Constitution of the Russian Federation, which has received international legal recognition as one of the necessary conditions for ensuring the right to a decent standard of living. (article 25 of the Universal Declaration of Human Rights, article 11 of the International Covenant on Economic, Social and Cultural Rights).

Everyone's right to housing, as enshrined in the Constitution of the Russian Federation and provided for by the norms of international law, is based on the principle expressed in the prescriptions of Articles 2, 17-19 and 21 of the Constitution of the Russian Federation, by virtue of which a person is the highest value and nothing can serve as a basis for belittling his dignity as a subject of civil society, whose rights and freedoms in their entirety are protected by the Constitution of the Russian Federation, and therefore, it is excluded to treat him only as an object of external influence.

The European Court of Human Rights, in its case-law, proceeds from the fact that although the Convention for the Protection of Human Rights and Fundamental Freedoms does not define the right to housing, it is nonetheless undoubtedly desirable that everyone should have a place where they can live with dignity. and which he could call home (judgments of 18 January 2001 in Lee v. the United Kingdom, Beard v. the United Kingdom, Coster v. the United Kingdom and Jane Smith ( Jane Smith v. United Kingdom ").

Thus, the ownership right to a dwelling, which is for a citizen and his family members the only one suitable for permanent residence, cannot be regarded as an exclusively economic right, since it performs a socially significant function and ensures the citizen the realization of a number of fundamental rights and freedoms guaranteed by the Constitution of the Russian Federation.

3. The Constitution of the Russian Federation, defining as one of the goals of the social policy of the Russian Federation the care of the state for the social protection of its citizens, securing the right of everyone to housing and assuming, first of all, a responsible attitude of citizens themselves to its implementation, at the same time imposes on public authorities the duty create the necessary conditions for this, including through the adoption by the federal legislator, within the powers granted to him, of special acts that determine the procedure for the provision of residential premises and on the basis of which specific cases should be resolved; when regulating the rights to a dwelling, including the transfer of ownership of a dwelling, it is necessary to maintain a balance of rights and legally protected interests of all participants in these relations, including family members of the owner of a dwelling, whose rights guarantees should be considered as being protected along with constitutional law property, as well as ensuring the possibility of a differentiated approach to assessing emerging life situations in order to avoid unreasonable restrictions on constitutional rights and freedoms (Resolutions of the Constitutional Court of the Russian Federation of April 21, 2003 N 6-P, of June 8, 2010 N 13-P and of February 27, 2012 N 3-P, definitions of the Constitutional Court of the Russian Federation of October 17, 2006 N 485-O, of November 3, 2006 N 455-O and of March 5, 2009 N 376-O-P).

Implementing the appropriate legal regulation, taking into account the specific historical conditions of the functioning of the Russian legal system, the federal legislator has a certain discretion in the choice of certain measures aimed at ensuring the conscientious fulfillment by citizens of their civil obligations and their responsibility, including all their property, to creditors. However, these measures, as part of the implementation of judicial protection of the property interests of persons connected by the "debtor - creditor" relationship, should not violate the fair balance between the values ​​expressed in the recognition and guarantee of the right to private property and in the general legal principle of good faith fulfillment of obligations, on the one hand, and the law on the dwelling - on the other.

Accordingly, when establishing the mechanism of enforcement proceedings, the federal legislator - following the principles of a legal social state designed to create conditions that ensure a dignified life and free development of a person - is entitled to determine the limits of foreclosure under enforcement documents on residential premises owned by debtor citizens, in order to ensure their rights in the housing sector at a level that allows them to fulfill their natural need for housing as an essential means of livelihood. At the same time, he is bound by the requirement of guaranteeing to the debtor citizen the right to housing, as it is enshrined in Article 40 of the Constitution of the Russian Federation, and therefore, ensuring the satisfaction of the property interests of the creditor (claimant), must preserve the very essence of this constitutional right.

3.1. According to article 24 of the Civil Code of the Russian Federation, a citizen is liable for his obligations with all property belonging to him, with the exception of property on which a claim cannot be levied and the list of which is established by civil procedural legislation. Part 4 of Article 69 and Part 1 of Article 79 of the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings" are in systemic connection with the aforementioned norm, which provide, within the framework of the general procedure for foreclosure on the debtor's property, a rule according to which in the absence or Inadequacy of monetary funds from a debtor citizen, recovery is applied to other property belonging to him, with the exception of property on which recovery cannot be levied and the list of which is established by the Civil Procedure Code of the Russian Federation, namely its Article 446.

Such legal regulation, prohibiting the foreclosure under executive documents on certain types of property due to its intended purpose, properties and characteristics that characterize the subject in whose ownership it is, is due to the desire of the federal legislator, by granting the debtor citizen property (executive) immunity, to preserve him and to persons dependent on him, the conditions necessary for a dignified existence.

3.2. The issue of the limits of property (enforcement) immunity when levying execution under executive documents on real estate objects belonging to a debtor citizen by right of ownership, including residential premises, has already been raised by the Constitutional Court of the Russian Federation.

In Decision No. 456-O of December 4, 2003, the Constitutional Court of the Russian Federation concluded that the provisions of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation prohibiting the foreclosure not on any dwelling belonging to the debtor citizen, but only on the one that is for him the only one suitable for permanent residence, are aimed at protecting the constitutional right to housing not only of the debtor himself, but also of his family members, including minors, the elderly, disabled people who are dependent on him, as well as ensuring the protection of the state of the dignity of the individual, as required article 21 (part 1) of the Constitution of the Russian Federation, conditions of normal existence and guarantees of socio-economic rights in accordance with article 25 of the Universal Declaration of Human Rights; Having provided for the limits of foreclosure under executive documents on the living quarters belonging to the citizen-debtor on the right of ownership and thereby limiting the creditor's right to proper execution of the court decision in his favor, the federal legislator did not go beyond the permissible limitations of the constitutional right to judicial protection established by Article 55 (part 3) of the Constitution of the Russian Federation, which, however, does not exclude the possibility of specifying this regulation in terms of the size of such living quarters.

Similar conclusions are contained in the rulings of the Constitutional Court of the Russian Federation of October 20, 2005 N 382-O, of November 24, 2005 N 492-O, of April 19, 2007 N 241-O-O, of November 20, 2008 N 956-O -O, dated December 1, 2009 N 1490-O-O and dated March 22, 2011 N 313-O-O. It was the legal positions set out in these definitions that, in fact, formed the basis for the interpretation of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation, given by the courts in decisions on the case of F.Kh. Gumerova.

In the development of the above legal positions, the Constitutional Court of the Russian Federation in its Determination of January 17, 2012 N 10-О-О noted that the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation, establishing the prohibition of foreclosure on residential premises, if for the debtor citizen and members of his family, it is the only one suitable for permanent residence, in conjunction with Article 24 of the Civil Code of the Russian Federation provides the debtor citizen with property (executive) immunity, so that - based on the general purpose of this legal institution - to guarantee the specified persons the conditions necessary for their normal existence; such regulation acts as a procedural guarantee of the socio-economic rights of these persons in the field of housing legal relations, it is carried out by the federal legislator within the framework of the discretionary powers granted to him and in itself cannot be considered as excessive, contrary to the requirements of Article 55 (part 3) of the Constitution of the Russian Federation, restriction of the rights of the creditor ...

Checking the constitutionality of the provision of the third paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation, which establishes the prohibition of foreclosure on executive documents on land plots belonging to a citizen-debtor on the right of ownership, the use of which is not related to his entrepreneurial activities, the Constitutional Court of the Russian Federation in a Resolution of July 12 2007 N 10-P reaffirmed that property (executive) immunity acts as a procedural guarantee of the implementation of the socio-economic rights of a debtor citizen and persons dependent on him, and is designed to provide them with the conditions necessary for normal existence and activities, including number of professional. At the same time, the Constitutional Court of the Russian Federation came to the conclusion that when determining the scope of property (executive) immunity in relation to land plots not used for business purposes, the federal legislator - taking into account the requirement of compliance with Article 17 (part 3) of the Constitution of the Russian Federation balance of interests of the debtor and the creditor (claimant) - should take into account not only the lack of the individual (debtor) status of an individual entrepreneur, but also general quantitative and qualitative characteristics, purpose and actual use of land plots to which a special a legal regime that provides for exemption from collection; accordingly, since the limitation of the debtor's rights is primarily associated with the provision of compulsory protection of the property rights of the claimant that he has violated, the federal legislator should strive to ensure that in such cases the debtor citizen and his dependents retain the necessary level of existence.

Proceeding from this, the Constitutional Court of the Russian Federation recognized the provision of the third paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation - in that part, in which it prohibits the foreclosure on executive documents on land plots belonging to the debtor citizen by right of ownership, the use of which is not related to them of entrepreneurial activity and which are not the main source of existence of the citizen-debtor and persons dependent on him, providing these persons with the necessary level of existence, - excessive, not proportional to constitutionally significant goals, arbitrary restriction of both the property rights of the creditor and the possibilities guaranteed by the Constitution of the Russian Federation their proper judicial protection, and therefore not consistent with the Constitution of the Russian Federation, its Articles 17 (part 3), 35 (part 1), 45, 46 (part 1) and 55 (part 3).

Referring to the interrelated provisions of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation and Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)", which provides for exemptions from property (executive) immunity in relation to property that is the subject of a mortgage, The Constitutional Court of the Russian Federation concluded that these provisions in the system of current legal regulation do not contain ambiguity, are aimed at ensuring a balance of rights and legitimate interests of claimants and debtors, and as such serve to implement the requirements of Articles 17 (part 3), 35 and 46 (part 1 ) Of the Constitution of the Russian Federation (definitions of December 16, 2010 N 1589-O-O, of January 17, 2012 N 12-O-O and N 13-O-O). At the same time, the Constitutional Court of the Russian Federation referred to the legal position formulated by it in Decree No. 10-P of July 12, 2007, according to which legislative regulation of foreclosure on executive documents should be carried out on a stable legal basis, balanced regulation of the rights and legitimate interests of all participants in executive proceedings with legislative establishment of the limits of possible collection that do not affect the main content of the debtor's rights and at the same time meet the interests of protecting the rights of the creditor (covering his right to claim), in order to prevent or reduce the amount of negative consequences of the debtor's default on the obligation.

3.3. The decisions of the Constitutional Court of the Russian Federation, which set out the above legal positions, remain in force. Taking them into account in the present case, when assessing the constitutionality of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in the part that establishes as a general rule the prohibition of foreclosure on executive documents on a dwelling (part thereof) belonging to the debtor citizen on the right of ownership and being for him and the members of his family living together with him are the only ones suitable for permanent residence, the Constitutional Court of the Russian Federation proceeds from the following.

The legal position that formed the basis for the recognition by the Constitutional Court of the Russian Federation of the third paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation as inconsistent with the Constitution of the Russian Federation was formulated in Decree No. to the debtor on the right of ownership of land plots, the use of which is not associated with the implementation of entrepreneurial activities, and cannot be extended to the relations regulated by the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation on the foreclosure of such a specific property object, which is the only one belonging to the debtor citizen on the right of ownership, residential premises suitable for permanent residence, which means that it cannot serve as a basis for recognizing this provision as inconsistent with the Constitution of the Russian Federation.

Legal positions on the intended purpose of property (enforcement) immunity and on the need to comply with the principle of proportionality while protecting the rights and legitimate interests of participants in enforcement proceedings allowed the Constitutional Court of the Russian Federation to come to the conclusion that the federal legislator does not exclude the possibility of specifying the provision of paragraph two of part one Article 446 of the Code of Civil Procedure of the Russian Federation in the part concerning the size of the living quarters, which can be foreclosed according to executive documents, i.e. this legal provision needs to be adjusted, since in law enforcement practice, proceeding from its literal interpretation, not in all life situations an appropriate balance of the legitimate interests of the creditor (claimant) and the debtor citizen can be ensured.

Thus, the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation, which establishes property (executive) immunity in relation to the living quarters (or parts thereof) belonging to the debtor citizen by right of ownership, which is for the debtor citizen and his family members living together in this dwelling, the only one suitable for permanent residence, - since it is aimed at protecting the constitutional right to housing not only of the debtor citizen himself, but also of his family members, including minors, elderly, disabled people who are dependent on him, as well as to ensure to these persons of normal conditions of existence and guarantees of their socio-economic rights and, ultimately, to the implementation of the state's duty to protect the dignity of the individual - has constitutional grounds and in itself cannot be considered as infringing on constitutional values, despite the fact that the corresponding property (executor cue) immunity in order to ensure the constitutional principle of proportionality in the field of protection of the rights and legitimate interests of the creditor (claimant) and the debtor citizen as participants in enforcement proceedings should extend to residential premises, which, in terms of their objective characteristics (parameters), are reasonably sufficient to satisfy constitutionally significant needs in the home as a necessary means of life support.

4. The provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation cannot be interpreted and applied without taking into account the constitutional and legal nature of property (executive) immunity in respect of residential premises, which is not intended in any case to retain for the debtor citizen what belongs to him on the right of ownership of a dwelling, and in order to ensure that, without violating the very essence of the constitutional right to housing and diminishing human dignity, to guarantee the debtor citizen and his family members the level of housing required for a normal existence.

Accordingly, the prohibition of foreclosure on the only dwelling place (or part thereof) suitable for permanent residence of the said persons is based on the understanding of such dwelling place as sufficient to satisfy a person's reasonable need for dwelling, the right to which should be guaranteed to the debtor citizen and his family members in in any case (even to the detriment of the constitutionally significant goal of executing court decisions), it is constitutionally justified insofar as it is aimed at preserving for these persons living conditions that are recognized as acceptable in a specific socio-economic situation at one stage or another in the development of society and the state.

Meanwhile, the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation does not contain guidelines for determining the level of housing provision as reasonably sufficient, which at present, in the context of a developing housing market and changes in the structure of the housing stock, can lead to disproportionate and not supported by any constitutionally significant the purpose of limiting the rights of creditors in their property relations with debtor citizens, and, consequently, violating the balance of constitutionally protected interests.

The lack of appropriate guidelines, and therefore, the possibility of a differentiated approach in the application of property (executive) immunity in relation to a residential premises owned by the debtor citizen and which is for him and his family members the only suitable for permanent residence, does not allow recovery under court orders for such living quarters, the size of which may significantly exceed the average, and the cost may be sufficient to satisfy the property claims of the claimant without prejudice to the essence of the constitutional right to the home of the debtor citizen and his family members.

The extension of unconditional property (executive) immunity to such living quarters would mean not so much the desire to protect the constitutional right of the debtor citizen and his family members to housing, but the observance of exclusively property interests of the debtor to the detriment of the interests of the claimant, and therefore, contrary to the requirements arising from articles 8 (part 1), 34 (part 1), 35 (part 1) and 40 (part 1) of the Constitution of the Russian Federation in conjunction with its articles 17 (part 3), 19 (parts 1 and 2), 46 (part 1) and 55 (part 3), - violation of the balance of interests of the debtor and the creditor (claimant) as participants in the enforcement proceedings.

Since the basis of the legislative goal-setting, which predetermines the regulation of the institution of property (executive) immunity in relation to residential premises, is precisely the guarantee of the level of housing provision necessary for normal existence to citizens, the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation cannot be considered as preventing deterioration housing conditions of the debtor citizen and his family members on the sole basis that the living quarters belonging to the debtor citizen on the right of ownership - regardless of its quantitative and qualitative characteristics, including value - is for these persons the only one suitable for permanent residence.

Consequently, the priority of the property interests of the citizen-debtor, who owns the dwelling, by its characteristics makes it possible to satisfy the requirements of the creditor (recoverer) related to the proper execution of a court decision that has entered into legal force, without prejudice to the normal existence of the citizen-debtor himself and his members. families and for the exercise of their socio-economic rights, would constitute an unreasonable and disproportionate restriction of the rights of the creditor (claimant). In this regard, the Constitutional Court of the Russian Federation has repeatedly drawn the attention of the federal legislator to the possibility of concretizing the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in the part concerning the size of the living quarters, which can be foreclosed according to executive documents, so that in enforcement proceedings the balance of interests of the claimant and the citizen-debtor was fully observed (definitions of December 4, 2003 N 456-O, of April 19, 2007 N 241-O-O, of November 20, 2008 N 956-O-O, etc.) , however, to date, no relevant changes have been made to the civil procedural legislation.

In the present case, the Constitutional Court of the Russian Federation, which, in the exercise of the powers vested in it, is obliged to proceed, inter alia, from the inadmissibility of exercising human and civil rights and freedoms in violation of the rights and freedoms of others, on the one hand, and the stability of legal relations in the interests of their participants, on the other , cannot but take into account that in conditions when the question of what size of dwelling space at a given stage of development of society can be considered satisfying the requirement of ensuring a reasonable human need for dwelling and, accordingly, for which dwelling, which is the only one suitable for permanent residence of the debtor citizen and his family members, execution may be levied under executive documents, the federal legislator has not decided, the recognition of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation as inconsistent with the Constitution of the Russian Federation would entail the risk of an ambiguous and, therefore, arbitrary choice with the relevant criteria by the law enforcement officer, moreover, in relations characterized by a high degree of social vulnerability of people, and despite the fact that the existing standards in the housing sector have a different purpose and cannot be used.

Proceeding from the principle of reasonable restraint and guided by paragraph 12 of part one of Article 75, part one of Article 87 and Article 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation in the present case considers it possible to refrain from recognizing the provision of paragraph two of part one of Article 446 Code of Civil Procedure of the Russian Federation does not comply with the Constitution of the Russian Federation.

This does not relieve the federal legislator of the obligation - based on the Constitution of the Russian Federation and taking into account the legal positions set forth in this Resolution - in order to ensure the constitutional balance of interests of the creditor (claimant) and the debtor citizen in enforcement proceedings to make the necessary changes to the civil procedural legislation, regulating the limits of the property (executive) immunity in relation to the residential premises (parts thereof), if for the debtor citizen and his family members living together in the owned premises, it is the only one suitable for permanent residence in order to ensure the possibility of satisfying the property interests of the creditor (recoverer) in the case when the corresponding real estate object in its characteristics clearly exceeds the level sufficient to meet the reasonable needs of the debtor citizen and his family members for housing, as well as provide for such persons a guarantor and maintaining the living conditions necessary for a normal existence.

In addition to the criteria that would make it possible to determine the residential premises as clearly exceeding the specified level in their characteristics (area of ​​the premises - general and residential, its design features, market value, etc.), the federal legislator must provide for a procedure for levying execution on it, requiring identification whether this premises is the only one suitable for the owner and members of his family to live, and guaranteeing them the opportunity to satisfy a reasonable need for housing, as well as to clarify for the purposes of this regulation the list of persons falling under the concept of "members of his family living together with the debtor citizen" ...

At the same time, foreclosure on such a residential premises, if it is the only suitable for these persons for permanent residence, should be carried out on the basis of a court decision and only if the court establishes not only formal compliance of the residential premises with the criteria allowing to overcome in in relation to him, property (executive) immunity, but also the disproportion of the income of the citizen-debtor to his obligations to the creditor (recoverer) and the absence of any other property on which collection can be levied. Otherwise, especially in cases of insignificant excess of the standards stipulated by the law, entails the risk of violation of the rights of the debtor citizen and his family members, and thereby - violation of the balance of constitutionally significant values, which this legal institution is aimed at protecting.

5. According to Article 6 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" decisions of the Constitutional Court of the Russian Federation are binding on the entire territory of the Russian Federation for all representative, executive and judicial bodies of state power, local self-government bodies, enterprises, institutions, organizations, officials, citizens and their associations.

All decisions of the Constitutional Court of the Russian Federation, which, by virtue of part two of its Article 79, act directly and do not require confirmation by other bodies and officials, have the property of universality, within the meaning of the named Federal Constitutional Law. At the same time, as follows from part four of the same article, if by a decision of the Constitutional Court of the Russian Federation a normative act is recognized as inconsistent with the Constitution of the Russian Federation in whole or in part, or the decision of the Constitutional Court of the Russian Federation implies the need to eliminate a gap in legal regulation, a state body or an official who has adopted this normative act is considering the issue of adopting a new normative act, which should, in particular, contain provisions on the abolition of a normative act recognized as not fully complying with the Constitution of the Russian Federation, or on making the necessary changes and (or) additions to the normative act , recognized as unconstitutional in a separate part of it.

The above prescriptions of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" in their interrelation also apply to those cases when, assessing the constitutionality of a normative act, the Constitutional Court of the Russian Federation, although it revealed in it some defects of a constitutional and legal nature, which in certain situations may serve as a prerequisite for violation of constitutionally significant values, including human and civil rights and freedoms, but nevertheless, being guided by the principle of reasonable restraint, did not recognize them as sufficient grounds for concluding that the normative act under consideration was not in conformity with the Constitution of the Russian Federation and considered it necessary to appeal to the legislator with an instruction to eliminate these shortcomings ...

Since the ability to formulate instructions of this kind in its decisions is predetermined by the constitutional and legal status of the Constitutional Court of the Russian Federation as a judicial body of constitutional control, designed to ensure, within the framework of the powers granted to it, the effective and balanced functioning and development of the legal system of the Russian Federation in accordance with the Constitution of the Russian Federation, the legislator does not has the right to ignore the decisions of the Constitutional Court of the Russian Federation, which contain instructions addressed to him.

Based on the foregoing and guided by Article 6, part two of Article 71, Articles 72, 74, 75, 79 and 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation ruled:

1. To recognize the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation, which establishes property (executive) immunity in relation to the living quarters (parts thereof) belonging to the debtor citizen by right of ownership, which is for the debtor citizen and his family members living together in this dwelling, the only one suitable for permanent residence, which does not contradict the Constitution of the Russian Federation, since this legal provision is aimed at protecting the constitutional right to housing not only of the debtor citizen himself, but also of his family members, as well as providing these persons with normal living conditions and guarantees their socio-economic rights and, ultimately, to the implementation of the state's duty to protect the dignity of the individual.

2. The property (executive) immunity established by the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in relation to a dwelling (its parts) owned by a debtor-citizen - in order to implement the constitutional principle of proportionality while ensuring the protection of the rights and legitimate interests of the creditor (claimant ) and the debtor citizen as participants in the enforcement proceedings - should apply to residential premises, which, in terms of their objective characteristics (parameters), are reasonably sufficient to satisfy the constitutionally significant need for housing as a necessary means of life support.

Based on these goals, the federal legislator should - in accordance with the requirements of the Constitution of the Russian Federation and taking into account the legal positions expressed in this Resolution - make the necessary changes to the civil procedural legislation governing the scope of property (executive) immunity in relation to residential premises (parts thereof). ), if for the debtor citizen and his family members living together in the given dwelling, it is the only one suitable for permanent residence, in order to ensure the possibility of satisfying the property interests of the creditor (claimant) in the case when, by its characteristics, the corresponding real estate object is clearly exceeds the level sufficient to satisfy the reasonable needs of the debtor citizen and his family members for housing, as well as provide for such persons guarantees of maintaining the living conditions necessary for a normal existence.

3. This Resolution is final, not subject to appeal, enters into force immediately after proclamation, acts directly and does not require confirmation by other bodies and officials.

4. In accordance with Article 78 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", this Resolution is subject to immediate publication in "Rossiyskaya Gazeta" and "Collection of Legislation of the Russian Federation". The decision must also be published in the Bulletin of the Constitutional Court of the Russian Federation.

Constitutional Court

Russian Federation

Dissenting opinion of the judge of the Constitutional Court of the Russian Federation N.S. Cooper

Within the framework of the dissenting opinion declared in accordance with part one of Article 76 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", it is important to pay attention to its following motives and arguments.

1. The peculiarity and, in a sense, the originality of the case considered by the Constitutional Court of the Russian Federation lies in the fact that the issues related to its subject matter (the provisions of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation) have been repeatedly touched upon - directly or indirectly - within the framework of constitutional proceedings (for example, definitions of December 4, 2003 N 456-O, of October 20, 2005 N 382-O, of November 24, 2005 N 492-O, of April 19, 2007 N 241-O-O, of November 20, 2008 year N 956-O-O, dated December 1, 2009 N 1490-O-O, dated March 22, 2011 N 313-O-O). This required first of all a decision by the Constitutional Court on the admissibility of the applicants' complaints.

The very fact of accepting complaints from citizens F.Kh. Gumerova and Yu.A. Shikunova testifies that the Constitutional Court did not identify the grounds for refusal to accept these applications for consideration provided for in Article 43 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation". Obviously, in this case, the Court proceeded from the fact that the solution of the problem posed in the applicants' applications by means of the definition of the Constitutional Court - "refusal" or with the so-called "positive" content - is impossible and it is necessary to consider the problem on its merits using all the necessary for this procedure forms of constitutional and judicial response. The acceptance of complaints for consideration in this case meant, in the final analysis, that the Constitutional Court saw the presence of uncertainty in terms of the compliance of the contested legal provisions with the Constitution of the Russian Federation (part two of Article 36 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation"). Thus, this fact alone is evidence of the Court's recognition of the impossibility of eliminating the existing uncertainty on the basis of its previous legal positions.

At the same time, when resolving this case, the Constitutional Court ultimately chose an approach based on confirming the previously expressed positions and recognizing the provision of the second paragraph of part one of Article 446 of the Code of Civil Procedure of the Russian Federation not contradicting the Constitution of the Russian Federation; it was concluded that "it is aimed at protecting the constitutional right to housing not only of the debtor citizen himself, but also of his family members, including minors, the elderly, disabled people who are dependent on him, as well as to ensure that these persons have normal living conditions and guarantees of their socio-economic rights and, ultimately, the implementation of the state's duty to protect the dignity of the individual "(paragraph four of clause 3.3 of the motivational part, clause 1 of the operative part).

At the same time, the Court definitely pointed out the existing defects in the legal regulation of the relevant relations of a constitutional and legal nature, but, guided by the principle of reasonable restraint, refrained from recognizing the contested legal provision as contrary to the Constitution of the Russian Federation and at the same time appealed to the federal legislator with a demand to make the necessary changes to it and additions in order to eliminate the identified deficiencies. In particular, as established by the Constitutional Court, the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation does not contain guidelines for determining the minimum necessary and sufficient to satisfy a person's reasonable need for housing (paragraphs two and three of clause 4 of the motivational part); Consequently, there is no "possibility of a differentiated approach in the application of property (performance) immunity in respect of a dwelling owned by the debtor citizen and which is the only one suitable for permanent residence for him and his family members" (paragraph one of clause 4.1 of the motivation part). Accordingly, this "does not allow levying execution under executive documents on such living quarters, the size of which may significantly exceed average indicators, and the cost may be sufficient to satisfy the property claims of the claimant without prejudice to the essence of the constitutional right to the home of the debtor citizen and his family members" (ibid.).

But if the current legal regulation has such significant defects, "which can lead to a disproportionate and not supported by any constitutionally significant goal of limiting the rights of creditors in their property relations with debtor citizens" (paragraph three of clause 4 of the motivational part), then the question seems to be quite legitimate: can the contested legal provision be considered as consistent with the Constitution of the Russian Federation?

Making the decision to refrain from recognizing the norm of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation unconstitutional, the Constitutional Court justified its position by the fact that otherwise - in the absence of special legislative regulation of what size of living space at this stage of development of society can be considered as satisfying the requirement of ensuring reasonable human needs for housing - would entail the risk of an ambiguous and, therefore, arbitrary choice of the appropriate criteria by the law enforcement officer, moreover, in relations characterized by a high degree of social vulnerability of people, and despite the fact that the existing standards in the housing sector have a different purpose and cannot be used (paragraph 1 paragraph 4.2 of the reasoning).

However, firstly, the Constitutional Court has other, including special, methods of constitutional and legal response to such situations, first of all, the establishment of the specifics of the execution of the adopted decision (clause 12 of the first part of Article 75 of the FKZ "On the Constitutional Court of the Russian Federation") ... Secondly, in the presence of similar conditions, for example, in the Decree of July 12, 2007 N 10-P on the case of checking the constitutionality of the provisions of the third paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in connection with the complaints of citizens V.V. Bezmenov and N.V. Kalabuna, the Constitutional Court, having recognized the contested legal provision unconstitutional, indicated that, pending the establishment of new regulation by the federal legislator, courts and other law enforcement agencies should "directly apply the Constitution of the Russian Federation, as well as be guided by this Resolution in order to prevent disproportionate restrictions on the property rights of citizens. debtors and creditors, including the applicants in the present case, as subjects of civil circulation of land plots "(paragraph two of clause 1 of the operative part).

In this regard, the use by the Constitutional Court in a specific case of the method of refraining from recognizing the contested legal provisions as unconstitutional does not seem to be indisputable. For the first time - and, perhaps, quite justifiably - this method of constitutional and judicial control was applied in the Resolution of the Constitutional Court of the Russian Federation of February 5, 2007 N 2-P in the case of checking the constitutionality of the provisions of Articles 16, 20, 112, 336, 376, 377, 380, 381, 382, ​​383, 387, 388 and 389 Code of Civil Procedure of the Russian Federation. Having established the existence of systemic violations of the requirements of the principle of legal certainty when regulating the institution of judicial review, the Constitutional Court did not recognize the norms of the Code of Civil Procedure of the Russian Federation as contradicting the Constitution of the Russian Federation, explaining its position by the fact that a different decision - without the simultaneous creation of a system of timely warning and correction of judicial errors - would lead to to a procedural and legal vacuum, disorganization not only of the activities of the courts of the supervisory instance, but also of civil proceedings in general. But already due to the uniqueness of this case, there is hardly any reason to believe that the methodology of constitutional and judicial review applied in its resolution can be considered as ordinary. It seems that its use is possible and necessary only in exceptional cases, in the presence, as a rule, of systemic defects in legal regulation, which objectively exclude (hinder) the possibility of their constitutional and judicial correction by recognizing the checked norms as unconstitutional.

Within the framework of the analyzed Resolution, with such an approach related to refraining from recognizing unconstitutionality, among other things, it remains unclear what legal significance the final conclusions made by the Constitutional Court within the framework of a specific normative control have, including stating the presence of defects in the verified provisions of a constitutional and legal nature, directly for the applicants and above all for the citizen F.Kh. Gumerova, who tried to achieve through the court the fulfillment of the obligation by a debtor citizen who owns a living space with a total area of ​​more than 300 sq. m. The absence in the operative part of the Resolution of a special item on the possibility of reviewing the case of F.Kh. Gumerova (if there were no other obstacles for this) testifies that a possible violation of the balance of interests of the debtor and the creditor (claimant), as before, including after the adoption of this Resolution, cannot be overcome by judicial and other law enforcement bodies.

Meanwhile, the search for ways and means of restoring the disturbed balance of interests of the debtor - the owner of the only living quarters for him and his family members and the creditor (claimant) as participants in the enforcement proceedings - is the constitutional and legal quintessence of this Resolution. But this key issue - about the protection of the rights of creditors (claimants) who claim to receive the amount of debt at the expense of residential premises owned by the debtor citizens, which by their characteristics significantly exceed the minimum sizes necessary to meet the needs for housing - is postponed indefinitely, up to making appropriate changes to the civil procedural legislation.

2. Paying tribute to the fact that the Resolution quite consistently reflects the line on finding a compromise in resolving this problem between different, non-coinciding approaches, it must be admitted that court decisions based on the reconciliation of non-coinciding positions do not always achieve the set goals; sometimes elements of internal inconsistency in the argumentation are inevitable, connected, for example, with the recognition of the constitutionality of the verified provision, on the one hand, and the justification of its constitutional and legal defectiveness, on the other.

The main methodological issue facing the Constitutional Court in the present case was the question of determining the constitutional grounds and limits of the invasion of the debtor's rights in the framework of enforcement proceedings. It is no coincidence that the main attention is paid to his decision in the Resolution. At the same time, the Constitutional Court proceeds from the fact that, since the rights and legitimate interests of participants in civil turnover should receive proportionate (proportional) protection based on the balance of constitutional values, insofar as in relation to the legal regulation of the resolution of conflicts of interests of creditors and debtors by the court, this means that the limits possible collection under executive documents, in order to prevent the negative consequences of non-fulfillment of a civil legal obligation, must meet the interests of protecting the constitutional rights of a citizen-creditor, however, they cannot affect the main content of the constitutional rights of a citizen-debtor (paragraph five of clause 2.2 of the motivational part).

Thus, it turns out that the preservation of the main content of the constitutional rights of a citizen-debtor is an absolute limit and, in a way, a criterion for the exercise of the rights of a creditor (claimant). Accordingly, in fact, it is assumed that there are relations between the participants in the enforcement proceedings, similar to those that exist between the state and the individual when deciding on the restrictive regulation of the rights of the latter, and the actual extension to these relations of the requirements of Article 55 (Part 3) of the Constitution of the Russian Federation, which allows only a proportionate restriction the law of human and civil rights and freedoms, and only to the extent that their core, that very basic content, will not be lost.

Meanwhile, the specified constitutional norm (part 3 of Article 55), in its meaning and purpose in the system of constitutional regulation, cannot be automatically extended to relations arising between equal participants in civil circulation, and cannot serve as a basis for their failure to fully fulfill those obligations that they took upon themselves on a voluntary-contractual (dispositive) basis. The obligation of subjects of civil law relations to fulfill their contractual obligations in good faith is based on the general legal principle of pacta sunt servanda, as well as on guaranteeing the inviolability of property, freedom of economic activity and freedom of contract, judicial protection of violated rights (Article 8, Part 1; Article 17, Part 3; Articles 34, 35 and 46 of the Constitution of the Russian Federation), it assumes, in order to restore the violated rights of creditors, the possibility of collecting debts at the expense of the debtors' property (paragraph four of clause 2.1 of the reasoning part). Consequently, the corresponding obligation is essentially constitutionally conditioned, and its legislative regulation is not a restriction of the constitutional rights and freedoms of man and citizen in the sense of Article 55 (part 3) of the Constitution of the Russian Federation, but the legislative formulation of the objective limits of constitutional proper behavior.

A different approach does not so much lead to the justification of exemptions in the list of the debtor's property, which can be foreclosed according to executive documents, as it casts doubt on the very possibility of fulfilling the obligation and carrying out the foreclosure, since it involves depriving the debtor of his property, i.e. not a restriction, but the termination of his property rights, including, among other things, a dwelling - if this is associated with a mortgage relationship. A citizen, consciously and voluntarily entering into civil law relations, acquires not only certain rights, but also obligations to counterparties, their scope and content are of a contractual nature. Consequently, within the framework of the settlement of relations in the field of enforcement proceedings, the state has the right and is obliged to establish only the minimum amount of exceptions from the rights of the creditor (claimant), the implementation of which could lead to the belittling of the debtor's human dignity, since the maintenance of this principle is fundamental for the civil circulation itself.

In this regard, the problem considered by the Constitutional Court has not so much social, but legal, normative and legal content. Therefore, when searching for the principles of proportionality and proportionality in protecting the right of ownership and other property rights of the creditor, on the one hand, and the right to the home of the debtor citizen, on the other, there is hardly any reason to deduce the constitutional principles of protecting the rights of the debtor, including from the principle of social statehood ( Article 7 of the Constitution of the Russian Federation). The corresponding relations within the framework of enforcement proceedings are not reduced to declaring "war on palaces" and "making the rich debtor poor", but to ensure the unconditional fulfillment of the debt obligation while guaranteeing the debtor and the family living with him the minimum necessary living conditions, including housing. By the way, the Federal Law "On Enforcement Proceedings" also refers to the principles of enforcement proceedings the inviolability of the minimum property necessary for the existence of a debtor-citizen and his family members. The conceptual approach implemented in the Resolution can be perceived, among other things, by the legislator, as orienting towards preferential protection in the framework of enforcement proceedings of the rights and legitimate interests of the debtor citizen before the creditor (recoverer). This raises doubts both from the point of view of the new socio-economic conditions for the development of the housing market, and the legal nature of this type of legal relationship as a form of ensuring the compulsory implementation of obligations arising from a civil contract, including the nature of the institution of property (executive) immunity.

3. It is known that the conflict of constitutional values ​​affecting the right to private property and its judicial protection, on the one hand, and the right to housing that meets normal conditions of existence, on the other, is largely resolved precisely by establishing property (executive) immunity for a citizen's property. the debtor on the right of ownership is the only living space suitable for permanent residence (part of it). There is nothing surprising in the fact that the named institution in this part of it has a rich and varied regulation in the legal systems of foreign states, each of which strives to ensure a fair balance between the corresponding values ​​that is adequate to the concrete historical conditions of its development.

Analysis of foreign experience makes it possible to identify at least four models of legal regulation in this area, starting with: a) the absence of legislative regulation of foreclosure on the debtor's only dwelling (for example, Armenia, Spain, Italy, Kazakhstan, Kyrgyzstan, Latvia, Luxembourg , Moldova, United Kingdom, Tajikistan, Ukraine, France, Switzerland, Estonia); continuing b) the establishment of prohibitions on the foreclosure of the debtor's only living quarters (Belarus, Brazil, Turkmenistan, Uzbekistan, Sweden), which, nevertheless, have certain, and sometimes significant, exceptions; and c) establishing the possibility of foreclosure on the debtor's only dwelling, with the provision of another dwelling in exchange or the debtor retaining the right to use the dwelling (Austria, Belgium, Germany, Liechtenstein, Portugal, Slovakia); and d) levying execution on a part of the debtor's only living quarters - provided that it can be allocated in kind (Bulgaria, Portugal, Uzbekistan) or in value *.

Already this cursory review demonstrates that property (executive) immunity in terms of its extension to a dwelling belonging to a debtor citizen by right of ownership is not absolute; the criteria for classifying a dwelling as part of the said prohibition are its objective characteristics associated with the satisfaction of a person's minimum needs for dwelling, and not the formal conditions associated with the absence of other dwellings by the debtor citizen and his family members; the balance of interests of creditors (claimants) and debtor citizens can be ensured not only by the physical division of the dwelling, but also in other ways associated with a kind of splitting of ownership rights to the corresponding real estate object, when the debtor citizen retains the right to use the dwelling, and the administrative powers are transferred to the creditor (claimant).

From the point of view of these approaches developed and tested in world practice, the current Russian legislation in terms of regulating relations on the foreclosure of a dwelling belonging to a debtor citizen on the right of ownership can be considered as very imperfect; it does not correspond to modern ideas about the institution of property (executive) immunity, does not contain tools for "weighing" competing constitutional values ​​and does not ensure their bringing to the proper balance.

The contested provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation does not imply that the courts, when considering specific cases, do not take into account any other characteristics of the living quarters belonging to the debtor citizen, except for those expressly specified in the law, including its size, quality indicators and cost, including the ratio of the latter to the amount of debt specified in the executive document Thus, the contested legal provisions proceed, in essence, from the fact that under any circumstances (not related to a mortgage) it is impossible to deteriorate the living conditions of the debtor citizen in comparison with the achieved level on the sole basis that the dwelling is the only one suitable for permanent residence for him. ... Such an approach in the current situation of the development of a market economy and a significant stratification of the population by housing conditions is not justified either from a legal or from a social point of view.

Today, the problem of the informal, differentiated application of property (executive) immunity acquires particular importance from the point of view of the requirements of social justice, on the one hand, and the execution of court decisions on claims against debtors within the framework of property relations of a civil law nature, on the other. If at the initial stage of the transition to the market the presence of such prohibitions in the legislation could be explained by the need for increased protection of citizens as an economically weaker side of market relations, bearing in mind that they did not have time to adapt to the new economic conditions and new principles of legal regulation of civil turnover, then today, with the change in socio-economic relations (an increase in the level of well-being of citizens, a change in the structure of the housing stock, the complication of civil circulation, an increase in the legal literacy of the population), it can no longer remain tolerant. Ultimately, this leads to the priority consideration of the interests of the debtor citizen and, at the same time, to the infringement of the interests of creditors (claimants), not only contradicts the requirements of social justice, but also violates the principle of equality before the law, including equality of legal responsibility (in this case, civil liability). legal), which ultimately leads to increased social inequality.

The current legal regulation also does not exclude the possibility of abuse by unscrupulous debtors who can use property (executive) immunity for the purpose of non-fulfillment, improper fulfillment of their civil obligations to creditors, in particular, to invest money, including unjustifiably accumulated, in expensive residential premises, which, as their only housing, cannot be foreclosed - despite its size, quality and cost.

4. The formal criterion used by the legislator in establishing property (executive) immunity in its corresponding part, expressed in the sign of the "uniqueness" of a dwelling suitable for permanent residence in a debtor citizen, deprives the judicial authorities considering the relevant category of cases of their discretionary powers, necessary to achieve the goals of justice and to establish justice in a particular case. When resolving issues related to the foreclosure of a living quarters belonging to a citizen-debtor by right of ownership, the courts, in essence, are forced to refuse to satisfy the declared claims of the creditor (recoverer) on the basis of establishing only the fact that the citizen-debtor and its members living together the family has no other living quarters suitable for permanent residence. Accordingly, the judicial authorities are not able to investigate the entire complex of legally significant circumstances of each specific case, including assessing the quantitative, qualitative and other cost characteristics of this residential premises. Meanwhile, the right to judicial protection, as the Constitutional Court has repeatedly pointed out, turns out to be significantly infringed if the courts, when considering the case, do not examine its factual circumstances on the merits, limiting themselves to establishing formal conditions for the application of the norm (decisions of June 6, 1995 N 7-P, of 13 June 1996 N 14-P, dated October 28, 1999 N 14-P, dated November 22, 2000 N 14-P, dated July 14, 2003 N 12-P, dated July 12, 2007 N 10-P).

An analysis of judicial practice, including decisions taken in the framework of specific cases of applicant citizens by the Constitutional Court, indicates that the formal approach to the application of the provisions of paragraphs one and two of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation was until recently prevailing, while others, differing from him, by their nature, the decisions did not receive support from higher authorities (for example, the determination of the Kirovsky District Court of the city of Ufa by a ruling dated October 26, 2010, which satisfied the application of citizen F.Kh. Gumerova, was subsequently canceled by the ruling of the Judicial Collegium for Civil Cases of the Supreme Courts of the Republic of Bashkortostan).

The imperfection of the current legal regulation of foreclosure on the living quarters belonging to the debtor citizen was recognized, in essence, by all participants in the constitutional proceedings, including representatives of the party that adopted and signed the contested normative legal act. During the meeting, it was pointed out the need for additional legal regulation of these relations, which should be carried out on the basis of a balanced consideration of the rights and legitimate interests of all participants in the enforcement proceedings, contribute to more effective protection of the interests of creditors and the real enforcement of court decisions that have entered into legal force, and should not stimulate the abuse of their rights by debtors.

Thus, the shortcomings of the current legal regulation of foreclosure on a dwelling (part of it) belonging to a debtor-owned citizen are quite obvious, and the subjects of legislative power, in principle, do not dispute that the norms of paragraphs one and two of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation Federations in their current form can (and do) in practice lead to deformations in the balance between the interests of creditors (claimants) and debtor citizens towards the latter.

5. Summarizing the above, I come to the following conclusions.

Firstly, the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in the system of current legal regulation does not allow achieving an optimal balance of interests of creditors (claimants) and debtors, and the absence of differentiated criteria for the application of property (executive) immunity in relation to a citizen-debtor on the right property of a dwelling (its part), as well as a regulatory mechanism for the implementation of foreclosure, indicates the presence of such a gap in the legislation, which entails a violation of constitutional rights and freedoms of citizens.

Secondly, the judicial practice of the application of the said legal provision as a whole follows a formal approach, in which the courts for the application of property (executive) immunity in respect of a dwelling are limited only to the establishment of the fact that it is the only one suitable for permanent residence of the debtor citizen and its members living together. families, and attempts to approach this issue informally - in the absence of clear normative legal criteria - lead to a violation of the constitutional principle of equality of all before the law and the court.

Thirdly, there is a prolonged inaction of the legislator to resolve the problem, which was first pointed out in the Decision of the Constitutional Court of December 4, 2003 N 456-O. As for the instructions contained in this Resolution to the legislator on making amendments and additions to the current legislation necessary to eliminate the shortcomings identified in it by the Constitutional Court, the absence of a conclusion on the unconstitutionality of the verifiable legal provision significantly reduces the imperative potential of such an order: it is no coincidence that the Federal Constitutional Law "On Constitutional The Court of the Russian Federation "(part four of Article 79) connects this authority of the Court with situations when" a normative act is recognized as inconsistent with the Constitution of the Russian Federation in whole or in part, or the decision of the Constitutional Court of the Russian Federation implies the need to eliminate a gap in legal regulation. "

I believe that the arguments presented, like some others, could form the basis for recognizing the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation as inconsistent with the Constitution of the Russian Federation.

______________________________

* See: Levy of execution under executive documents on the only living quarters in modern international and foreign law and judicial practice of constitutional control // Foreign practice of constitutional control. Constitutional Court of the Russian Federation. 2012. Issue. 189, pp. 7 - 9.

Dissenting opinion of the judge of the Constitutional Court of the Russian Federation G.A. Zhilina

In accordance with Article 76 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" I declare my disagreement with the Resolution of the Constitutional Court of the Russian Federation of May 14, 2012 N 11-P on the case on checking the constitutionality of the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in connection with with complaints from citizens F.K. Gumerova and Yu.A. Shikunov for the following reasons.

1. The legal institution of property (executive) immunity in relation to a residential property owned by a citizen, which is the only one suitable for living, as aimed at protecting the constitutional right to housing of a debtor citizen and his family members and assuming a balance of rights and legitimate interests of both parties in enforcement proceedings, in itself does not contradict the Constitution of the Russian Federation. This legal position was formulated by the Constitutional Court of the Russian Federation in Decision No. 456-O of December 4, 2003, then it was repeatedly reaffirmed in a number of its decisions and, in essence, was duplicated with reference to them in the Resolution in the present case. Accordingly, in such an abstract meaning, it is not objectionable.

At the same time, in the judgment in the present case, the Constitutional Court should not have limited itself to a conclusion about the constitutionality of the contested legal provision only insofar as it is aimed at ensuring the debtor and his family members normal living conditions and guarantees of their socio-economic rights. In this case, the case was considered not on the basis of an abstract request to check the constitutionality of the said legal institution as such, but on the basis of complaints from citizens-creditors about the violation of their constitutional rights. Moreover, the applicants did not dispute the constitutionality of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in the aspect as formulated in paragraph 1 of the operative part of this Resolution, seeing a violation of their constitutional rights only in the fact that it does not ensure the balance of rights and legitimate interests of the creditor and the debtor.

So, F.K. Gumerova, taking into account the specific law enforcement situation in her case, asked to recognize this legal provision as inconsistent with the Constitution of the Russian Federation insofar as it does not allow levying a claim on a share in the ownership of a dwelling without taking into account its quantitative and qualitative characteristics, actual use and preservation for the debtor and his family members of the required level of existence. In essence, the arguments of Yu.A. Shikunov, who believed, taking into account the circumstances of his case, that turning in his favor to foreclose on a part of the dwelling proportional to the value of the amount of the debt, in this particular law enforcement situation, for the debtor and his family members, the minimum level of housing provision (not lower than sanitary standards)

Consequently, while agreeing that the prohibition of foreclosure on the only habitable living quarters contained in the contested legal provision in itself, as aimed at ensuring the housing rights of the debtor and his family members, does not contradict the Constitution of the Russian Federation, the applicants challenged its constitutionality only in that to the extent that it interferes with the execution of the court decision and in cases where the application of appropriate enforcement measures preserves normal living conditions for the owner of the living quarters and his family. It is in this way that the applicants formulated the subject of their appeal to the Constitutional Court and presented the arguments in support of the assertion that their constitutional rights were violated by the application of the contested legal provision by the court of general jurisdiction.

2. In the mechanism of judicial protection, which is a set of legal means aimed at ensuring by justice the rights and freedoms of man and citizen (Article 18 of the Constitution of the Russian Federation), the impossibility of foreclosure on the debtor's property established by law plays a specific role. Being an exception to the general rule on the responsibility of a citizen for his obligations with all his property, it creates obvious obstacles to the execution of a court decision, limiting the property rights of the creditor (claimant), as well as his right to judicial protection, which is noted by the Constitutional Court and in the Resolution on the present case ...

Providing for the possibility of limiting human and civil rights and freedoms by federal law, Article 55 (part 3) of the Constitution of the Russian Federation allows such a limitation only to the extent that it is necessary in order to protect constitutionally significant values, which include morality, health, rights and legitimate interests of others. At the same time, as the Constitutional Court correctly pointed out in the reasoning part of the Resolution on the present case, the exercise of human and civil rights and freedoms by virtue of Article 17 (part 3) of the Constitution of the Russian Federation has as its objective limit the obstruction of the exercise of the rights and freedoms of other persons, causing harm their constitutionally guaranteed interests, therefore, in order to ensure equal judicial protection of the rights of the creditor (claimant) and the debtor, the federal legislator must proceed from the fact that the resulting conflicts of their legitimate interests, in any case, cannot be overcome by granting protection to some rights in violation of others, which are equivalent in their constitutional value.

Establishing in relation to residential premises not encumbered with a mortgage as a basis for exemption from foreclosure, only the condition of uniqueness of premises suitable for living, which is common for all cases, the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation abstracts from any possible options for fulfilling the obligation at the expense of such property - regardless of on the characteristics of the respective property. This is clearly in conflict with the constitutional and legal criteria for the permissible limits of limiting the constitutional rights of the creditor (claimant); This legislative regulation is also inconsistent with the main provisions of the enforcement proceedings, which include the principle of inviolability of only the minimum of property necessary for the existence of a debtor-citizen and his family members (paragraph 4 of Article 4 of the Federal Law "On Enforcement Proceedings").

In the housing market, the cost of residential premises owned by citizens varies significantly depending on their quantitative and qualitative parameters. Accordingly, the criterion for the uniqueness of a habitable premises should not be a universal basis for exempting this property from foreclosure. It is obvious that in some law enforcement situations, the use of funds usual for civil circulation (division of property, sale at auction, etc.) will ensure the implementation of the rights of the creditor (claimant), without creating obstacles for the observance of the necessary minimum living conditions for the citizen-debtor and members of his family.

Thus, from the materials of the case of F.K. Gumerova, it follows that with a debt under the writ of execution dated April 14, 2008 in the amount of 3,075,328 rubles, the debtor owns a residential building with a total area of ​​332.5 sq. m, the cost of which is 9,781,000 rubles. In this case, the debtor, who, according to the applicant, resides in the house alone, does not take any actions to fulfill his obligation, confirmed by the court decision. It follows from the copies of court rulings attached to the complaint that as a result of enforcement measures, it was possible to seize movable property worth only 6,280 rubles and foreclose on a pension, the amount of which is about 2,000 rubles a month.

3. The imperfection of the contested legal provision, which creates the possibility of disproportionate restriction of the rights of the creditor (claimant), is also indicated in the Resolution of the Constitutional Court of the Russian Federation in this case. The constitutional and legal reasoning given in support of this conclusion does not raise objections, but taking into account the fact that the applicants filed a complaint about the violation of constitutional rights by the legal provision applied by the court in their specific cases, one cannot but compare the relevant arguments with the circumstances of these cases.

In particular, paragraph 4 of the reasoning part of the Resolution states that the extension of unconditional property (executive) immunity to residential premises, the size of which is significantly higher than the average, and the cost is sufficient to satisfy the property claims of the claimant without prejudice to the essence of the constitutional right to the home of the debtor citizen and members of his family, would mean not so much the desire to protect this right, as the observance of exclusively property interests of the debtor to the detriment of the interests of the claimant, and therefore, contrary to the requirements arising from Articles 8 (part 1), 34 (part 1), 35 (part 1) and 40 (part 1) of the Constitution of the Russian Federation in conjunction with its Articles 17 (part 3), 19 (parts 1 and 2), 46 (part 1) and 55 (part 3), - violation of the balance of interests of the debtor and the creditor (claimant) as participants in enforcement proceedings. The circumstances of the case of F.K. Gumerova clearly indicate that it was in such a situation that she found herself in connection with the application by the courts of the contested statute in the enforcement proceedings to collect the debt in her favor, however, the Constitutional Court did not make the relevant decision on her complaint in the operative part.

One more significant negative aspect of such regulatory regulation should be noted, since despite the need to maintain a balance of constitutionally protected rights, freedoms and legitimate interests of both parties in enforcement proceedings, it not only does not stimulate the debtor to fulfill the obligation if there is an opportunity, but also creates conditions for abuse by him of his rights to the detriment of the rights of the creditor (claimant).

For example, as follows from the complaint of Yu.A. Shikunov and the documents attached to it, the other party in the enforcement proceedings to collect the debt in his favor evades the execution of the court decision. In order to hide from the foreclosure of the property on which the arrest was imposed, the debtor withdrew money from bank accounts, removed valuable property from the apartment, sold cars and garages.

4. In contrast to the regulation provided for by the contested statute, the legislation of some other states, which also prohibits the foreclosure of residential premises under executive documents, proceeds from the need to maintain a reasonable balance of socially significant interests of the claimant and the debtor.

So, in Bulgaria, if the minimum housing provision for the debtor and his family members is exceeded, as determined by a resolution of the Council of Ministers, a part of the living space that exceeds the specified norms, if possible, is subject to sale (Article 444 of the Civil Procedure Code).

In Ontario Canada, legislation prohibits foreclosure on dwelling, which is solely for the debtor, unless its value exceeds a certain amount (Section 2 of the Enforcement Act).

New York State prohibits foreclosure on a debtor's only dwelling if its value does not exceed a certain amount; if it is exceeded, the foreclosure is applied to the amount exceeding (§ 5206 of the Consolidated Laws).

In Uzbekistan, foreclosure on the debtor's only residential building (apartment) is allowed if the court considers it possible to divide the residential building (apartment), including the adjacent territory, into parts sufficient for the normal life of the debtor and his family (Article 52 of the Law "On execution of judicial acts and acts of other bodies ").

In Germany, foreclosure on any immovable property of the debtor is allowed, but the court can give the debtor a reasonable time limit for vacating the premises, which in general should not exceed one year; the court may also completely or in part cancel, prohibit or suspend enforcement measures if, even on the basis of the creditors' needs, due to special circumstances, they mean an embarrassment incompatible with good morals (§ 721 and 765a of the Civil Procedure Code).

5. The Constitutional Court of the Russian Federation, checking on complaints from citizens the constitutionality of the legal provisions applied by the court in a specific case and affecting constitutional rights and freedoms, the violation of which the applicant refers, is not bound by the grounds and arguments of the complaint, but adopts a decision on the subject specified in it; if the contested legal provision is found to be inconsistent with the Constitution of the Russian Federation, the applicant's specific case is, in any case, subject to revision, his court expenses are reimbursed from the federal budget (Articles 74, 96, 97 and 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation"). It is these consequences, due to the legal nature of the mechanism for protecting rights through constitutional proceedings, in accordance with Articles 18, 46 (parts 1 and 2), 118 (parts 1 and 2), 125 (part 4) of the Constitution of the Russian Federation and Articles 3, 96-100 of the Federal of the constitutional law "On the Constitutional Court of the Russian Federation" are called upon to ensure the restoration of the constitutional rights of citizens violated by the application of an unconstitutional legal provision.

In the reasoning part of the Decision in the present case, the Constitutional Court, taking into account the subject indicated by the applicants, in essence recognized their correctness about the unconstitutionality of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation in the aspect contested by them, however, in the operative part, the relevant decision on it did not take, although it obliged the legislator (paragraph 2) to amend the legislation, consistent in its direction with the arguments set out by the applicants in the complaints. Having refrained from declaring the impugned legal provision in the relevant part unconstitutional, the Constitutional Court of the Russian Federation did not ensure the restoration of the violated rights of the applicants.

6. Thus, contested by citizens F.K. Gumerova and Yu.A. Shikunov, the provision of the second paragraph of the first part of Article 446 of the Code of Civil Procedure of the Russian Federation should have been recognized as inconsistent with the Constitution of the Russian Federation, its Articles 8 (part 1), 17 (part 3), 18, 19 (parts 1 and 2), 34 (part 1), 35 (Part 1), 46 (Part 1) and 55 (Part 3), insofar as it contains a prohibition on levying execution under court orders on the only living quarters (part of it) suitable for permanent residence of the debtor citizen and his family members in cases where the quantitative and qualitative characteristics of the premises allow such a collection to be carried out while maintaining the normal (minimum necessary) level of housing conditions for these persons.

The Judicial Collegium for Civil Cases of the Armed Forces examined the debtor's complaint against the bailiff's actions. He arrested the debtor's only living space, and she felt that this violated her rights.

The situation with debt collection is relevant today for many. Debts must be repaid. Especially by court order. This is what the bailiff service exists for. But are their actions always legitimate? Almost all debtors know that it is forbidden to touch the only housing. Is this really so, and what actions does the bailiff have the right to perform with the debtor's apartment without breaking the law?

In the district court of St. Petersburg, a decision was made on the claim against a local resident. By a court decision, she was obliged to repay a considerable debt. The bailiff started enforcement proceedings and arrested the land plot and part of the citizen's dacha. They were sold, and the money went to pay off the debt.

But these funds were not enough for all repayment, and the bailiff seized the apartment where the debtor lived with the child.

But the defendant did not agree with the arrest of the apartment. She went to another district court with a statement in which she challenged the order issued by the bailiff to arrest the house. In support of her claim, the citizen wrote that the apartment is the only place of residence for her and her little son, so she cannot be arrested.

The District Court agreed with this statement. In its decision, the court of first instance said that according to Article 79 of the Law on Enforcement Proceedings, the foreclosure cannot be levied on the property owned by the debtor, the list of which is established in the Civil Procedure Code. The only premises suitable for permanent residence are included in this list (Article 446 of the Code of Civil Procedure.)

"Since the disputed apartment as the only place of residence of the debtor cannot be foreclosed, the seizure of property, which cannot be foreclosed, cannot be used as an independent enforcement measure and cannot lead to the execution of a court decision," recorded in the decision of the district court.

The creditor and the bailiff were offended by this verdict and filed a complaint with the St. Petersburg City Court. The appeal says that the arrest of the apartment was made "not for the purpose of levying execution against him, but as an independent measure of compulsory execution, provided for by the law on enforcement proceedings." But the city court did not support the bailiff and the creditor. The appeal stated that their argument was "based on a misinterpretation of the legislation in force." The court said that the measure taken by the bailiff was not included in the list of grounds for arrest.

Therefore, "the argument about the legality of the seizure in order to force the debtor to actually fulfill the requirements of the executive document does not correspond to the current legislation" - is written in the appeal decision. The City Court also said that the imposition of an arrest to ensure the safety of property in our case is devoid of legal significance, since "such an arrest in the present case cannot lead to the execution of the court's decision."

The creditor also disagreed with this wording and went further and higher - to the Supreme Court of the Russian Federation. And there, after reading this case, they said the following - the acts of the St. Petersburg courts are incorrect and are subject to cancellation, since their conclusions are based "on an incorrect interpretation of the norms of substantive law."

In its ruling, the Judicial Collegium for Civil Cases indicated that an arrest as an enforcement action could be imposed by a bailiff “in order to enforce a court decision containing claims for property penalties” (Articles 64 and 80 of the Law on Enforcement Proceedings). According to the Supreme Court, despite the fact that Article 446 of the Code of Civil Procedure prohibits the foreclosure of the debtor's only housing under executive documents, such housing can be arrested, because arrest is not a penalty. These are different actions.

According to the collegium, the court of first instance and the appeal mistakenly equated the prohibition on taking registration actions with the apartment and the enforcement measures. The decision of the Supreme Court says that "it is clear from the decision of the bailiff-executor that it was made in order to ensure the execution of the court's decision."

And the court clarified that this arrest does not provide for restrictions on the right to use the apartment and levy execution on it, namely, the seizure of the apartment and its sale or transfer to the claimant. The debtor can live in her apartment calmly, but after the arrest, the woman will not be able to dispose of the housing. That is, sell it, donate or change it.

In this case, the Supreme Court used the resolution of the Plenum "On the Application of Legislation by Courts when Considering Certain Issues Arising in the Course of Enforcement Proceedings" (November 2015).

In that resolution it is said that the arrest of a residential premises, which is the only one for permanent residence of the debtor-owner and his family, as well as the establishment of a ban on the disposal of this property (including the settling and registration of other persons), cannot be recognized as illegal if these measures were taken by the bailiff-executor so that the debtor could not dispose of the real estate to the detriment of the interests of the claimant. (Case No. 78-KG15-42)

Mortgage housing and all the nuances of the relevant situation The federal law on foreclosure of the only housing in the first article says that, in accordance with the real estate mortgage agreement (in other words, with the mortgage lending agreement), the mortgagee (the first party), who is directly the lender in in relation to the obligation secured by mortgage lending, it is entitled to satisfy its own claims in cash to the debtor through this obligation from the value of the mortgaged real estate of the pledger (second party), as a rule, to other creditors of the second party, with the exceptions established through federal law.

Foreclosure on the sole housing of the debtor

It will also be nice if you can prove such intentions of the debtor with documents (provide printouts of advertisements for the sale of the debtor's only home, etc.). In the absence of a bailiff's response to your petition, you can appeal his failure to act to a higher bailiff or in court. And further. Clause 63 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 50 of 11/17/15 also clarifies that the land plot under the only living quarters of the debtor can be foreclosed: in the part that exceeds the maximum minimum size of the provision of a land plot for this purpose.

It is possible to foreclose on the "extra" part of the debtor's land if he and his family do not use it to meet their needs and ensure the required level of existence.

Foreclosure of debts on a single dwelling

Important

If we are guided by the general rules of foreclosure, then any property of the debtor, which is in his ownership, within the limits of the amount of the debt, is subject to arrest and subsequent sale at auction. However, there is an exception to this rule - the only housing, the eligibility to foreclose on which is completely limited, except for cases where this housing is in a pledge and collection on the debt secured by this pledge. Until recently, the restrictive provision of the law was actually applied both to the seizure of property and to the procedure for collection at its expense (sale and repayment from the amount of debt received).

This approach led to ambiguous interpretations on the part of the courts, bailiffs and lawyers, often becoming the subject of legal proceedings in all instances.

The apartment was arrested

KG13-4. Such conclusions may lead to the fact that if the residential premises are subject to mortgage (no matter what and in the security of what obligation), then it becomes possible to foreclose on the only housing. Consequently, the foreclosure, the transfer of ownership from the debtor to a new person, the termination of the right to use the residential premises leads to such an understanding of the balance of interests of the creditor and the debtor, when the former still wins. The debtor also remains homeless on the street. One could say that the above definition is only an isolated case.
Or that the understanding of the conclusions set out in this article is incorrect. It is also possible. However, I see confirmation of the stated in other cases, which I have already reported earlier, and not only in the practice of courts of general jurisdiction.

Recovery of the debtor's only home for debts. arbitrage practice

In addition to the above, the same approach was found in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 26, 2013 in case No. A65-15362 / 2009-СГ4-39, when the court directly indicated that from paragraphs 1 and 2 of Art. 6, paragraph 1 of Art. 50 of the Law on Mortgage it follows that “the mortgagee has the right to foreclose on an apartment mortgaged under a mortgage agreement in order to satisfy at the expense of this apartment the claims caused by non-fulfillment or improper fulfillment of the obligation secured by the mortgage, and regardless of the purpose for which the loan (loan ); the mere fact that a debtor citizen has a dwelling, which is the only one suitable for permanent residence for him and his family members, does not preclude the foreclosure on him if it is encumbered with a mortgage. Clause 1 of Art.

Foreclosure on the sole housing of a debtor-citizen

On enforcement proceedings. ") In other words, the seizure of the debtor's property precedes the seizure of this property from him in the future or is applied in the execution of the relevant judicial act on the seizure, for example, as part of the application of interim measures in the consideration of a civil dispute, and such a measure is independent There is no literal interpretation of the law. This position was expressed by the courts of the first and second instances during the consideration of the complaint against the actions of the bailiff. A resident of St. Petersburg filed a complaint with the court to challenge the decision of the bailiff-executor on the imposition of a ban on registration actions in respect of the apartment , which was the only habitable dwelling for the applicant and her minor son. The first instance court satisfied the claims on the basis of paragraph 5 para.

Foreclosure on a single dwelling

There are known cases of defaulters who had cottages with an area of ​​250 m² and refused to pay the lender. Moreover, the court in such a situation could not confiscate the property, since the real estate was the only property. Now, however, such incidents have been reduced to a minimum. The innovation involves a simplification of the mechanism for taking away living space from hard-core debtors. Consider that the legislators have approved specific rules according to which the court has the right to take the side of the plaintiff.

Attention

These conditions become the salvation of defaulters - after all, by appealing to accepted norms, a person will be able to defend property. Let's consider the details of this topic using real life examples in more detail. New rules Now let's move on to the list of requirements that the law contains on the withdrawal of the only home from the debtor.

The first condition is the proportionality of the debt to the market price of the borrower's living space.

Is it possible to arrest the debtor's only home?

A similar position was expressed in paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 11/17/2015 N 50 "On the application of legislation by the courts when considering certain issues arising in the course of enforcement proceedings": "Arrest as an interim measure or a ban on the order can be established on property listed in paragraphs two and three of Part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation belonging to a debtor-citizen. ”This interpretation of the law by the Supreme Court of the Russian Federation is not indisputable. However, the main court of the country has said its final word, and trying to criticize it is a thankless and hopeless business. Meanwhile, the arrest of the debtor's only home without further foreclosure creates a number of problems for citizens.

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The practice of LKP "Support of bankruptcy procedures" reports on one interesting case, which was considered by the Supreme Court.

So, on November 22, 2018, in the bankruptcy case of an individual (case No.A40-67517 / 2017), the Supreme Court satisfied the cassation appeal against the acts of the lower courts, which allowed the debtor to save his apartment from sale, and allowed the possibility of inclusion in the bankruptcy estate for subsequent sale from the auction of the only home of a bankrupt citizen.

Some experts expressed the opinion that such a position of the Supreme Court may be an attempt to overcome the position of the Constitutional Court of the Russian Federation on the issue of property immunity of the only housing. However, is this really so? Let's try to figure it out.

First of all, one should take into account the following circumstances of the considered case. There was a dispute between the parties. During 10 years of litigation, the debtor did not make a single voluntary payment, and transferred the apartment he had to his wife under an agreement on the division of property, after which the same gave her to her daughter. Subsequently, these transactions were invalidated. Another circumstance to which attention should be paid is related to the fact that the housing, which could be foreclosed, is a three-story five-room apartment with an area of ​​198 sq. m.

These circumstances formed the opinion of the Supreme Court of the Russian Federation that the initiation of bankruptcy of an individual is nothing more than an abuse of the right by the debtor in order to avoid debts, since this procedure allows excluding the Debtor's only housing from the bankruptcy estate, and the apartment has become the only housing for the debtor as a result of bad faith.

According to the Constitutional Court of the Russian Federation (Resolution of May 14, 2012 No. 11-P "In the case of checking the constitutionality of the provisions of the second paragraph of the first part of Article 446 of the Civil Procedure Code of the Russian Federation in connection with the complaints of citizens F.Kh. Gumerova and Yu.A. Shikunov" ), the prohibition of foreclosure on the only premises suitable for the residence of a citizen, established by the legislator, should have its limits, namely: in the case when the corresponding real estate object in its characteristics clearly exceeds the level sufficient to ensure the reasonable needs of the debtor citizen and his family members for housing , it is possible to foreclose on such a dwelling. This is necessary to maintain a balance of interests between the claimant and the debtor citizen.

Thus, in its ruling of November 22, 2018, the Supreme Court pointed out the need to take into account the good faith of the debtor when deciding on the inclusion of his only home in the bankruptcy estate.

As a result, the case was sent for a new trial.

Is it possible to withdraw the only housing from the debtor if he has no other property? If so, how to do it? Is the court entitled to recognize the claimant's ownership of the said premises? The courts of two instances answered these questions differently, until the Supreme Court came to the rescue.

Irina Shinkareva * borrowed from Igor Solodovkin * at interest of 3 million rubles. This loan was confirmed by Shinkareva's certificate of the right to inheritance by law. Shinkareva did not return the debt in due time, and Solodovkin went to court. made a decision to collect from the borrower 3 455 027 rubles. loan and interest. In relation to Shinkareva, enforcement proceedings were initiated, however, it was not possible to identify the property on which a foreclosure could be levied. In this regard, the enforcement proceedings were ended, and the writ of execution was returned to the claimant.

Then Solodovkin went to court with a claim to foreclose on Shinkareva's inheritance - an apartment. He believed that this apartment acted as security for the fulfillment of obligations. Shinkareva, on the other hand, challenged the conclusion of a pledge agreement. She pointed out that from the literal content of the receipt of the loan, the pledge of the real estate object does not follow, the subject of the mortgage is not indicated, its assessment, and the state registration of the pledge provided for by law has not been carried out.

The Prikubansky District Court of Krasnodar dismissed Solodovkin's claim. At the same time, the court proceeded from the fact that the disputed residential premises is the only one suitable for living, which means that a claim cannot be levied on it.

CASE No. 18-KP 7-216

SOURCE: Igor Solodovkin *

ANSWER: Irina Shinkareva *

COURT: Supreme Court of the Russian Federation

DETAILS: Claim for foreclosure on an apartment

DECISION: Cancel the appeal ruling, send the case for a new consideration to the court of appeal

He overturned the decision of the court of first instance and satisfied Solodovkin's claim. He not only decided to transfer the apartment to the claimant and recognize his ownership of it, but also collected RUB 1,140,974 from Solodovkin in favor of Shinkareva. the difference between the amount of debt collected and the cost of the apartment, determined on the basis of commodity expertise. At the same time, the judicial board proceeded from the fact that Shinkareva in the receipt confirmed the loan with hereditary property, that is, in fact, indicated this residential premises as a pledge.

When it came to, he drew attention to the following: in the event of default or improper performance of the obligation secured by the pledge, the pledgee acquires not the subject of the pledge, but the right to receive satisfaction from the value of the subject of the pledge, which is realized for this purpose. Consequently, according to the law, the foreclosure on housing must be carried out by selling it at a public auction with the determination of the initial selling price. However, the judicial collegium for civil cases of the Krasnodar Regional Court did not take this into account and issued a ruling on the transfer of the apartment to Solodovkin's ownership, bypassing the public auction, which is unacceptable. Of course, in some cases, the satisfaction of the creditor's claim on the obligation secured by the pledge can be carried out by transferring the subject of the pledge into the ownership of the pledgee (clause 1 of article 334 of the Civil Code), but the appeal did not indicate this case. She also did not cite the law by which she was guided when transferring the subject of the pledge to the pledgee. In addition, according to the Supreme Court, the appeal should have established the nature of the legal relationship that arose between the parties and the nature of the obligations assumed by the parties. Therefore, the Judicial Collegium for Civil Cases of the Supreme Court canceled the appeal ruling and sent the case for a new consideration to the court of appeal (No. 18-KP 7-216). The case has not yet been reviewed.

"The abolished appeal ruling is, to say the least, puzzling. Here we see a rather clear violation of the provisions of the law establishing the order of foreclosure on residential premises and the requirements for the form of real estate pledge. On the other hand, from a purely everyday point of view, the current situation seems unfair. This is due to the fact that, first of all, the Armed Forces drew attention to the violation of the order of foreclosure on the subject of a pledge, and only after that relatively mildly questioned the registration of pledge relations, "- noted the partner to. Yu. n. Roman Zaitsev. “It is noteworthy that an obviously unjust decision was made at the appeal level. The Supreme Court confirmed that, firstly, a mortgage cannot arise from a receipt (on the contrary, the law requires compliance with the written form for a mortgage agreement), and, secondly, the subject of the mortgage must be sold at auction, unless the law establishes other options.It is noteworthy that the court did not speak at all about the lack of state registration of the mortgage.This can be found in two explanations: either the violations of the form of the contract and the procedure for the sale of the mortgaged property were so blatant that the attention of judges to state registration is no longer enough, or the principle of public reliability of the USRN register is losing its weight in resolving disputes over the right to real estate, "said KA partner Sergei Patrakeev.

The conclusions of the Armed Forces regarding the absence of collateral correspond to the established law enforcement practice. At the same time, the apartment was clearly mentioned in the receipt precisely to ensure the obligations of the borrower. And even though the bail did not arise due to the lack of registration, the court still had to investigate the question of whether there was another security mechanism. Indeed, in Art. 329 of the Civil Code, methods of securing obligations are not determined, which opens up the opportunity for participants in civil turnover to independently design various security structures.