Waste as an object of property. Waste management during rental relationships

We, LLC, rent an office, there is nothing in the contract about waste. In order to avoid claims from government agencies regarding waste and environmental payments, I would like to indicate in the office lease agreement that garbage and solid waste removal is the responsibility of the landlord. But somewhere I read or heard that there must be documentary evidence of the transfer of our waste (office paper, light bulbs) to the landlord. What can you recommend to write in the contract for these purposes?

Answer

It is sufficient to establish in the lease agreement that the owner of the generated waste is the lessor.

Ownership of waste is determined in accordance with civil legislation (Law No. 89-FZ). It is necessary to draw up separate transfer acts only in the case when we're talking about on waste removal by third (licensed) parties.

The rationale for this position is given below in the materials of the “Lawyer System” .

"3. With regard to waste generated by the tenant, we note that for the purposes of determining the payer of the fee, the priority issue is determining the person who is the owner of the waste.

The issue of the emergence of ownership rights to waste generated by the tenant is not specifically regulated by civil law. At the same time, the issue of waste ownership can be stipulated in the lease agreement between the parties.*

If such an issue is not resolved in the lease agreement between the parties, then one should be guided by (hereinafter -).

Key questions:

Ownership relations for waste in accordance with Federal Law dated June 24, 1998 No. 89-FZ “On production and consumption waste”

Ownership relations for waste according to the Civil Code Russian Federation

Contractual relations with suppliers and contractors in the field of waste management

Waste, like any other items and other things that have relative independence and stability of existence, are (in contrast to pollutants emitted with waste gases or discharged from wastewater) the object of property rights, which is regulated primarily by the norms of civil law. These norms define, on the one hand, the owner’s rights to own, use and dispose of his property (including the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts), and on the other hand, the owner’s obligation to bear the burden of maintaining his property, unless otherwise provided by law or contract.

OWNERSHIP RELATIONS FOR WASTE UNDER FEDERAL LAW OF 06.24.1998 No. 89-FZ “ON PRODUCTION AND CONSUMPTION WASTE”

The rules governing the ownership of waste are contained in Art. 4 of the Federal Law of June 24, 1998 No. 89-FZ “On Production and Consumption Waste” (hereinafter referred to as the federal law No. 89-FZ).

As is known, before the amendments introduced by Federal Law dated December 29, 2014 No. 458-FZ, Art. 4 of Federal Law No. 89-FZ established the following:

Extraction

(as amended on November 25, 2013, no longer valid)

1. The right of ownership of waste belongs to the owner of raw materials, materials, semi-finished products, other items or products, as well as goods (products) as a result of the use of which this waste was generated.
2. Ownership of waste can be acquired by another person on the basis of a purchase and sale agreement, exchange, donation or other transaction for the alienation of waste.
3. The owner of waste of hazard class I-IV has the right to alienate this waste into the ownership of another person, transfer to him, while remaining the owner, the right to own, use or dispose of this waste, if such a person has a license to carry out activities for use, neutralization, transportation, disposal waste of no less hazard class.
4. If waste is abandoned by the owner or otherwise left by him in order to renounce the ownership of it, the person who owns, is in possession or is in use of the land plot, reservoir or other object where the abandoned waste is located may reverse them into their ownership by starting to use them or performing other actions indicating their conversion into ownership in accordance with civil law.

As we can see, this article contained a special requirement for the waste owner, which limited his right to dispose of his waste as an object of property. Thus, the owner had the right to alienate waste, transfer, while remaining the owner, the right to own, use or dispose of this waste only to a person with a license to carry out activities for the use, neutralization, transportation, disposal of waste of no less hazard class.

From 01/01/2015 Art. 4 of Federal Law No. 89-FZ was reduced to the minimum:

Extraction
from Federal Law No. 89-FZ

Article 4. Waste as an object of property rights
(as amended by Federal Law No. 458-FZ)

Ownership of waste is determined in accordance with civil law.

Thus, the previously valid requirement for a mandatory license on relevant types of activities in the field of waste management of I-IV hazard classes from persons to whom this waste is transferred (i.e. limiting the circulation of waste of I-IV hazard classes), was canceled.

Currently, the norm of Federal Law No. 89-FZ continues to apply, prohibiting the disposal of waste at facilities not included in State Register waste disposal facilities (hereinafter referred to as GRRORO), maintained by Rosprirodnadzor (clauses 6 and 7 of Article 12 of Federal Law No. 89-FZ), but this prohibition is not directly related to property relations.

BY THE WAY

IN State Duma Bill No. 826840-6 “On suspension of paragraph 7 of Article 12 of the Federal Law “On Production and Consumption Waste”” was introduced, in accordance with which it is proposed suspended until January 1, 2019 effect of clause 7 of Art. 12 of Federal Law No. 89-FZ.

In general, according to the norms of Federal Law No. 89-FZ, most of the obligations of legal entities and individual entrepreneurs related to the implementation of state regulatory instruments in the field of waste management (licensing, certification, rationing, accounting, etc.) are also not directly related to the ownership of waste and are assigned not to the owners of the waste, but to the persons as a result of whose activities the waste is generated, which is important if the owner of the waste and the person as a result of whose activities the waste is generated do not coincide.

In the future in legislative norms(including in new articles of Federal Law No. 89-FZ and Federal Law dated January 10, 2002 No. 7-FZ “On Environmental Protection” (hereinafter referred to as Federal Law No. 7-FZ), introduced by Federal Law dated July 21, 2014 No. 219-FZ and Federal Law No. 458-FZ) also retains the assignment of the main responsibilities for waste management to legal entities and individual entrepreneurs, as a result of whose activities waste is generated, regardless of the ownership of this waste.

In particular, in accordance with paragraph 1 of Art. 16.1 (will come into force on January 1, 2016 in accordance with Federal Law No. 219-FZ) Federal Law No. 7-FZ payers of fees for negative impact on environment when placing waste, with the exception of solid municipal waste, will be legal entities and individual entrepreneurs whose economic and (or) other activities generated waste.

Property relations are of great importance in relation to waste (scrap) of ferrous and non-ferrous metals.

So, according to paragraph 2 of Art. 13.1 of Federal Law No. 89-FZ, legal entities and individual entrepreneurs can handle scrap and waste of non-ferrous metals and dispose of them only if there are documents confirming them ownership for the specified scrap and waste, which primarily determines the need to establish the conditions for the primary emergence of ownership of waste, as well as the conditions for its acquisition.

LEGAL REGULATION

The rules for handling scrap and waste of ferrous metals and their disposal were approved by Decree of the Government of the Russian Federation of May 11, 2001 No. 369 (as amended on December 12, 2012). These Rules determine the procedure for handling (reception, accounting, storage, transportation) and disposal of scrap and waste ferrous metals on the territory of the Russian Federation.

The rules for handling scrap and waste of non-ferrous metals and their disposal were approved by Decree of the Government of the Russian Federation of May 11, 2001 No. 370 (as amended on December 12, 2012). These Rules determine the procedure for handling (reception, accounting, storage, transportation) and disposal of scrap and non-ferrous metal waste on the territory of the Russian Federation.

It must be taken into account that in accordance with paragraph 34 of Part 1 of Art. 12 of Federal Law No. 99-FZ dated 04.05.2011 “On licensing of certain types of activities” (hereinafter referred to as Federal Law No. 99-FZ) workpiece , storage, processing and sale of scrap ferrous metals, non-ferrous metals refer to licensed types of activities.

Property relations are of fundamental importance in establishing civil liability for damage to the environment associated with the management of waste of all types and classes (including violations of environmental legislation).

According to Art. 210 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the owner bears the burden of maintaining the property owned by him, unless otherwise provided by law or contract.

In accordance with Part 1 of Art. 1079 of the Civil Code of the Russian Federation, the obligation to compensate for damage caused by activities that create an increased danger to others (including when handling waste) is assigned to the person who owns the source increased danger on the right of ownership, the right of economic management or the right of operational management or on another legal basis.

Based on clause 3 of Art. 78 of Federal Law No. 7-FZ, claims for compensation for environmental damage caused by violation of legislation in the field of environmental protection may be brought for 20 years. That is why establishing the conditions for the initial emergence of ownership of waste, as well as the conditions for its acquisition, is essential for all waste.

OWNERSHIP RELATIONS FOR WASTE UNDER THE CIVIL CODE OF THE RUSSIAN FEDERATION

In relation to activities in the field of waste management, priority is given to the norms of civil legislation regulating:

relations of ownership of waste and the emergence of civil rights and obligations upon their alienation;
certain types of obligations regarding waste management under civil contracts (primarily contracts and paid services).

It should be noted that not all relations in the field of waste management are directly regulated by civil legislation - in these cases, civil legislation governing similar relations is applied (Article 6 of the Civil Code of the Russian Federation).

In particular, the grounds for the emergence of ownership of waste (as substances or objects that are formed in the process of production, performance of work, provision of services or in the process of consumption, which are disposed of, are intended for disposal or are subject to disposal) at the time of their disposal are not directly regulated by civil legislation. education. Therefore, in this case, civil law rules governing similar relations are applied.

The primary ownership of waste (which was previously established in Article 4 of Federal Law No. 89-FZ) is generally determined based on the norms of Art. 220 of the Civil Code of the Russian Federation and essentially implies the transfer of ownership from materials to waste generated as a result of processing materials, and not the emergence of ownership of waste from the processor, as a result of whose activities this waste was generated, i.e. the owner of the waste is initially the owner of the materials from which the waste was generated :

Extraction
from the Civil Code of the Russian Federation

Article 220. Processing

1. Unless otherwise provided by the contract, the right of ownership to a new movable thing made by a person by processing materials that do not belong to him is acquired by the owner of the materials.
[…]

At the same time, according to Part 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his own discretion, to take any actions in relation to his property (including waste) that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, incl. alienate one’s property into the ownership of other persons, transfer to them, while remaining the owner, the rights of ownership, use and disposal of property.

Civil legislation also establishes general norms regulating the alienation of property on the basis of relevant agreements (Article 218 of the Civil Code of the Russian Federation):

Extraction
from the Civil Code of the Russian Federation

Article 218. Grounds for acquiring property rights

[…]
2. The right of ownership to property that has an owner may be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction for the alienation of this property.
[…]

Based on the norms of the Civil Code, the right of ownership of property that has an owner can be acquired by another person on the basis of agreements, the subject of which directly according to the Civil Code is the transfer of ownership, i.e. contracts of sale, exchange or donation (of which the largest practical significance have valid sales contracts under all conditions). But other transactions on the alienation of this property are also possible (primarily in cases of its illiquidity, i.e. when the property does not have a real market value) with the inclusion of provisions on the transfer of ownership rights in various civil contracts of other types. The specified standards (which until January 1, 2015 were present in Article 4 of Federal Law No. 89-FZ) must also apply to waste (as an object of property).

Article 226 of the Civil Code of the Russian Federation establishes norms regulating the repossession of abandoned movable things, incl. waste dumped on land various types, in respect of which the owner land plot(landowner, land user) has the right (and in fact must- in the context of the provisions of Art. 13 of the Land Code of the Russian Federation on the protection of lands from pollution and littering) to take actions indicating their conversion into their property:

Extraction
from the Civil Code of the Russian Federation

Article 226. Movable things abandoned by the owner

1. Movable things abandoned by the owner or otherwise abandoned by him for the purpose of renouncing the right of ownership of them (abandoned things) may be turned into their property by other persons in the manner provided for in paragraph 2 of this article.
2. The person who owns, possesses or uses the land plot, water body or another object where there is an abandoned item, the cost of which is clearly lower than the amount corresponding to five times the minimum wage, or abandoned scrap metals, defective products, alloy waste, dumps and drains formed during mining, industrial waste and other waste, has the right to turn these things into his property by starting to use them or by performing other actions indicating the conversion of the thing into ownership.
Other abandoned things become the property of the person who took possession of them if, at the request of this person, they are recognized by the court as ownerless.

The Civil Code does not establish any restrictions on the circulation of waste as property. As noted earlier, such a restriction has not been included in Federal Law No. 89-FZ since January 1, 2015.

At the same time, the absence of restrictions on the circulation of waste arising from the Civil Code and Federal Law No. 89-FZ (as amended by Federal Law No. 458-FZ) is somewhat complicated by the fact that in the orders of the Ministry of Natural Resources of Russia adopted or developed before the entry into force of Federal Law No. 458 -FZ, the requirement remains to include in environmental documentation information about the availability of licenses for waste management activities of the persons to whom the waste is transferred.

For example, in footnotes to appendices 11 and 18 Methodical instructions on the development of draft standards for waste generation and limits on their disposal, approved by Order of the Ministry of Natural Resources of Russia dated 05.08.2014 No. 349, it is stipulated that when transferring (proposed annual transfer) waste of hazard classes I-IV to other economic entities for the purpose of their neutralization and (or) placement in tables “Proposed annual transfer of waste to other economic entities” draft standards for waste generation and limits on their disposal (hereinafter referred to as PNOOLR) and “Actual use, neutralization, disposal of waste, as well as their transfer to other economic entities for the period from ____ to ____” technical report on waste management indicates the number and date of issue licenses for activities for neutralization and (or) disposal of waste of I-IV hazard class .

According to clause 18 of the Procedure for accounting in the field of waste management, approved by Order of the Ministry of Natural Resources of Russia dated September 1, 2011 No. 721 (as amended on June 25, 2014), in the table “Accounting data for waste transferred from individual entrepreneur (legal entity)» (Appendix No. 3) indicate the date of issue and number licenses for activities for the neutralization and disposal of waste of I-IV hazard classes and the name of the authority that issued this license.

Based on paragraphs. 11 and 12 of the Procedure for submitting and monitoring reporting on the generation, use, neutralization and disposal of waste (with the exception of statistical reporting), approved by Order of the Ministry of Natural Resources of Russia dated February 16, 2010 No. 30 (as amended on December 9, 2010), legal entities and individual entrepreneurs belonging to small and medium-sized businesses are obliged to:

Indicate in the reporting on the generation, use, neutralization, and disposal of waste (hereinafter referred to as the reporting) the date of issue and the number of the document confirming that the legal entity and individual entrepreneur to whom the waste was transferred during the reporting period have a license to collect, use, and neutralize , transportation, disposal of waste of I-IV hazard class (hereinafter referred to as the license) (when transferring waste of I-IV hazard class);
.include in the appendices to the reporting copies of documents confirming the availability licenses and issued to legal entities and individual entrepreneurs to whom the reporting small and medium-sized enterprise transferred waste of hazard classes I-IV during the reporting period.

Taking into account the supremacy of federal laws (Article 4 of the Constitution of the Russian Federation), the above regulatory legal acts should be applied only to the extent that does not contradict federal laws, or they can be appealed to the Supreme Court of the Russian Federation.

CONTRACTUAL RELATIONS WITH SUPPLIERS AND CONTRACTORS IN THE FIELD OF WASTE MANAGEMENT

Since the enterprise, while remaining the owner of the waste, is responsible for compliance with waste management requirements both on its own or leased land plots and outside them (for example, when transporting waste), it is obliged to monitor the compliance of suppliers (contractors) with environmental requirements when they carry out activities in the field of waste management of the owner, which may have a negative impact on the environment.

Management of the activities of the supplier (contractor) related to the impact on the environment (including waste management) on the part of the customer enterprise can only be carried out on the basis of contracts concluded in accordance with general provisions, as well as rules on certain types of contracts (contracts, paid services, supplies) that are contained in the Civil Code. You also need to install technical requirements for works (services) (technical specifications) and be sure to include in the contractual obligations of the counterparty ensuring compliance with requirements in the field of waste management.

The general environmental requirements that construction contractors must comply with are formulated directly in the Civil Code:

Extraction
from the Civil Code of the Russian Federation

Article 751. Obligations of the contractor for environmental protection and ensuring the safety of construction work

1. When carrying out construction and related work, the contractor is obliged to comply with the requirements of the law and other legal acts on environmental protection and the safety of construction work.
The contractor is responsible for violation of these requirements.
2. The contractor has no right to use materials and equipment provided by the customer during the work, or to follow his instructions, if this may lead to a violation of the requirements for environmental protection and safety of construction work that are mandatory for the parties.

General environmental requirements for construction contractors, other contractors and service providers, as well as their liability for violations of environmental legislation (including in the area of waste management) can (and probably should) be reflected in contracts for work or services.

For example, When drawing up construction contracts, contracts for reconstruction, technical re-equipment, repairs and maintenance of equipment, buildings and structures, including the supply and installation of equipment, cleaning and landscaping of the territory, etc., the contractor (supplier) may be charged with the following responsibilities:
.in the event that regulatory authorities apply penalties to the customer for violations of requirements in the field of waste management, their placement in places not intended for these purposes, which occurred through the fault of the contractor, reimburse the customer for the costs of paying such fines within 10 banking days (or another period ) from the date of receipt of the corresponding written request;
.to ensure, on their own, the storage of waste generated during the work in the places specified by the customer;
.at your own expense, organize loading and unloading, transportation and transfer of waste generated during the execution of work to places of their burial or to specialized organizations for their disposal, processing, neutralization, and disposal.

In case of violation by the contractor and his employees of the requirements in the field of waste management (if the contract provides for their recording in an act signed by responsible employees of the enterprise), the contract may establish liability for the contractor in the form of payment of a fine in the amount of, for example, 100,000 rubles. for each case of violation with an increase in the specified amount, for example, by 100% in relation to the previous case for each subsequent violation (including for violation of the specified requirements by subcontractors and their employees).

Additional specification of general environmental requirements for waste management is possible in the technical specifications ( technical conditions) to contracts for construction or supply of services (performance of work).

For example, The responsibilities of a contractor (service provider) when performing work on the territory of an enterprise or in its area of responsibility may include the following responsibilities:
.strictly comply with the established waste management procedures, Instructions for organizing the collection, accumulation, use, neutralization, transportation and disposal of used mercury-containing lamps;
.carry out cleaning of the territory at the place where work is performed or services are provided, daily remove waste from places of its generation to accumulation points established on the Map of waste accumulation areas on the territory of the enterprise and provided by the enterprise to the contractor for use in accordance with SanPiN 2.1.7.1322-03 " Hygienic requirements for the disposal and disposal of production and consumption waste";
.ensure the management of flammable waste in accordance with the Fire Regulations in the Russian Federation, approved by Decree of the Government of the Russian Federation of April 25, 2012 No. 390 (as amended on March 6, 2015);
.timely (in compliance with the established frequency or deadline) carry out loading and unloading, transportation and transfer of waste for disposal, processing, neutralization or - within the limits established for the enterprise - disposal of waste at waste disposal sites included in the GRRO;
.carry out loading and unloading, removal and transfer own waste generated in the process of performing work on the territory of the enterprise from materials and equipment belonging to the supplier (contractor);
.immediately inform the responsible executor of the contract about changes in the conditions of waste generation, an increase in their quantity or the formation of types of waste not provided for in the PNOOLR of the enterprise unit.

Of particular importance are contracts for the provision of paid services in relation to the collection, transportation, disposal, processing, neutralization and disposal of waste with actual or potential contamination of land (including forests) or water bodies. In relation to such agreements, the most promising is the transfer to the contractor (service provider) of ownership (if possible) of waste, since after removing waste from its territory, the enterprise practically loses control over compliance with the requirements in the field of handling this waste, but does not lose it, remaining the owner waste, liability for harm to the environment as a result of violation of requirements in the field of their handling.

If it is not possible to transfer ownership of the waste to the contractor (for example, due to his possible refusal to accept ownership in the absence of alternatives to purchasing similar services from other contractors or complete absence such contractors in a particular region) it is extremely important to establish the liability of the contractor (service provider) for claims for compensation for damage caused to the environment by violation of requirements in the field of waste management through the fault of the contractor, brought by supervisory authorities (including prosecutorial) to the enterprise customer of the services , who is the owner of the waste. Formally, such claims can be appealed in court even in the absence of corresponding provisions in the contract, but controversial issues are resolved more successfully if initially the rights and obligations of the parties (including with regard to the terms of compensation for damage caused to the environment as a result of violation of requirements in the field waste management) are established in the contract.

- Zhelyabovskaya D.S. Implementation of the provisions of the Federal Law of December 29, 2014 No. 458-FZ: draft legal acts // Ecologist's Handbook. 2015. No. 4. P. 14-28 (Including transportation of scrap and non-ferrous metal waste generated by legal entities and individual entrepreneurs in the process of production and consumption.

Note: clause 23 of these Rules, according to which the conclusion of an agreement for the transportation of scrap and non-ferrous metal waste is carried out transport organization only with the owner of scrap and non-ferrous metal waste, recognized void And non-generating legal consequences decision Supreme Court RF dated October 18, 2001 No. GKPI 2001-1207, 1238, 1262.

According to the Regulations on licensing activities for the procurement, storage, processing and sale of scrap ferrous and non-ferrous metals, approved by Decree of the Government of the Russian Federation of December 12, 2012 No. 1287, the concept "blank" only applies to acquired scrap metal on a paid or free basis. Please note that scrap metal purchased free of charge can probably also include scrap left by the contractor when replacing pipes, the ownership of which belongs to the owner of the pipes, and not to the contractor that replaced them. In this regard, you should carefully ensure that the enterprise (organization) does not have acquired (“foreign”) scrap metal in the absence of an appropriate license.

In relation to scrap and waste of ferrous and non-ferrous metals, which in most enterprises (with the exception of metallurgical and foundry industries) are formed from used and decommissioned equipment (products, structures), the main documents confirming the ownership of the specified scrap and waste at the time of their formation, are accounting documents on the write-off of such equipment.

Art. 536 of the Civil Code of the Russian Federation, according to Part 3 of which the contracting agreement may provide for the obligation of the procurer processing agricultural products to return waste from the processing of agricultural products to the manufacturer upon his request with payment at the price determined by the contract, but this article has no significant relation to environmental protection environment.

Reading time: 6 min

Ownership of waste - very often I see that a legal entity - a waste generator - enters into an agreement with another legal entity to transfer ownership of waste. As a result, the waste generator believes that if ownership of the waste is transferred to another person, then the responsibilities for compliance with environmental legislation are transferred to another person.

Ownership of waste(ownership of waste)

In accordance with Article 4 of the Federal Law of June 24, 1998 N 89-FZ “On Production and Consumption Waste,” ownership of waste is determined in accordance with civil law.

What the Civil Code (Civil Code) says:

Ownership of new thing, manufactured or created by a person for himself in compliance with the law and other legal acts, is acquired by this person.
The right of ownership to fruits, products, income received as a result of the use of property is acquired on the grounds provided for in Article 136 of this Code.
Clause 1 of Article 218 of the Civil Code of the Russian Federation

Fruits, products, income received as a result of the use of a thing, regardless of who uses such a thing, belong to the owner of the thing, unless otherwise provided by law, other legal acts, contract or follows from the essence of the relationship.
Article 136 of the Civil Code of the Russian Federation

Thus, as follows from Article 136 of the Civil Code of the Russian Federation, the owner of waste from the operation (use) of equipment, machinery, buildings, structures and other things is the owner of the specified property.

Clause 7.8 "GOST 30772-2001. Interstate standard. Resource conservation. Waste management. Terms and definitions" establishes that the owner of waste is a legal entity, individual entrepreneur, producing waste, in whose ownership they are, who intend to collect, process waste and other waste management work, including disposal.

Based on the above, from the moment waste is generated, ownership rights arise with the legal entity or individual entrepreneur in the process of whose economic or other activities waste is generated.

Transfer of ownership of waste

From this moment on, all responsibilities for compliance with environmental legislation fall on the shoulders of the new owner.

The right of ownership to property that has an owner can be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction for the alienation of this property.
Clause 2 of Article 218 of the Civil Code of the Russian Federation

Responsibilities of the waste owner

Responsibilities of the waste owner from whom the waste was generated:

lead (graphs accumulated at the beginning, formed, transmitted, accumulation at the end);
develop (if it belongs to waste of hazard class 1-4);
do (for ENVOS categories 1, 2);
report on ;
Don’t forget about the new waste reporting for NVOS category 3 facilities (but there is no information on it yet).

A caveat: waste can only be transferred to the ownership of a legal entity or individual entrepreneur who has a license to collect waste!

Responsibilities of the waste owner to whom the waste was transferred:

lead (graphs accumulated at the beginning, formed, accepted, transferred, accumulation at the end);
waste must be accepted with a waste passport (if it belongs to waste of hazard class 1-4);
everything else is the same.

I hope the topic of waste ownership has become clearer to you.

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

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

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

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

With regard to the distribution of contractual obligations to pay for the negative impact on the environment, E.V. Lunena recommends including a condition in the content of the contractual structure, where the responsibility for making payments for the negative impact on the environment is assigned to a specialized organization, regarding the transfer of ownership of exported production and consumption waste. The fact is that in civil law, waste is a thing, so it legal regime determined by the norms of both environmental and civil law 6 .

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

It seems that for the purpose of detailed analysis and formation of a position regarding the issue under study, it is necessary to focus on two aspects:

1) determining the list of objects to which ownership rights may arise;

2) the concept of waste.

When considering the issue in this regard, the reasoning of G.S. seems interesting. Vasilyev, who critically analyzed the Ruling of the RF Armed Forces dated 02/04/2015 in case No. 301-KG14-1670 in case No. A79-4567/2013 7, where the Judicial Collegium of the RF Armed Forces overturned the judicial acts of lower authorities and recognized the bank’s demand for return Money, paid as a fee for negative impact, is unreasonable and not subject to satisfaction, since the ownership of waste, unless otherwise expressly provided in agreements on waste disposal concluded with specialized organizations, remains with the user of natural resources (bank). In particular, the scientist puts forward the following theses relevant to this work:

1. preservation of ownership of waste when handing it over to a specialized organization is not justified in any way in the decision. Modern garbage trucks not only mix garbage from different senders, but also compress it. The contents of the trash can, which previously could be considered the object of property rights of the user of natural resources, disappear;

2. retention of ownership rights by the user of natural resources means that both the specialized organization that carries out waste removal and the owner of the landfill where they will be buried carry out transactions with someone else’s property. The authority to do so cannot be derived from regulations;

3. Transfer of ownership under a service agreement (agreement for the provision of waste disposal services) is possible. The service in the case under discussion is that the alienated items have a negative market value, and therefore their owner not only cannot count on compensation for his property, but also must pay for someone to acquire the item 8 .

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

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

The above provides fundamental grounds for putting forward the thesis: if a person indicates that a thing has been transformed into waste for him, the thing immediately disappeared as an object of civil circulation and such a person lost the right of ownership to the specified property, since the object of ownership can only be property that has real value, i.e. consumer properties.

However, some may think that this kind of interpretation is incorrect, since the presence or absence of consumer properties of a particular object is an evaluative criterion and depends on who the subject is, in particular: for some, a tube computer, old car, the waste product of cloven-hoofed cattle is waste, and for others it is things that have consumer properties that can be used, for example, as a typewriter, vehicle or fertilizers. A tool for countering this kind of reasoning is the answer to the question: what relationships are described (regulated) by property rights, and also in what meaning the term “waste” should be considered: subjective or objective. It seems that the right of ownership regulates exclusively the subject - object relationship, i.e. prescribes for a specific individualized subject public relations rights and obligations in relation to a specific thing. At the same time, the term “waste”, which is used both in the current edition of Federal Law No. 89-FZ and in previously existing ones (for example, edition dated January 1, 2014), is also defined from the point of view of the subjective perception of a specific person with a pre-existing condition. a thing that had properties useful for the subject (its relationship within the framework of the previous subject-object relationship). Therefore, in the context under consideration, it is necessary to conclude that if a person uses property, the right of ownership exists specifically for the thing, since there is a property (consumer) value, and, therefore, a subject-object relationship 11 exists. If the specified subject commits implicit actions, for example, throws a thing into a container, it becomes waste and at the same time as the specified actions are performed, the specified person’s right of ownership of the thing disappears, while no transformation (derivative method of emergence) of the property right occurs and does not may happen. In some cases, a third party who is in no way connected with the previous owner of the thing can acquire a “thrown away” thing according to the rules on mismanaged things (Article 225 of the Civil Code of the Russian Federation (hereinafter - Civil Code of the Russian Federation 12)), treasure (Article 233 of the Civil Code of the Russian Federation) or processing (Article 220 of the Civil Code of the Russian Federation), however, all of these models for the transfer of objects into ownership are the primary methods of acquiring the specified absolute right, which also impose on such owner the corresponding rights and obligations, while these methods do not have any connection with the previously existing rights property. A similar approach, it seems, needs to be applied to the processes of sorting and recycling waste, when in the process of technological processing (Article 220 of the Civil Code of the Russian Federation) new objects of civil circulation (things) with useful properties arise.

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

Thus, it is permissible to formulate the following conclusions:

1. the use of the concept of “ownership of waste” is incorrect and unfounded from both the point of view of public and private law, since ownership as a category of property rights can arise exclusively for a thing that has a material (consumer) value that the waste has , obviously missing;

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

Text footnotes to indexes in the article

1 Federal Law No. 89-FZ dated June 24, 1998 (as amended on December 31, 2017) “On production and consumption waste” (as amended and supplemented, entered into force on January 1, 2018) // Collection of legislation of the Russian Federation. 1998. No. 26. art. 3009.

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

3 Ponomarev M.V. Ownership of waste: legal problems implementation and transition // Journal of Russian Law. 2017. No. 8. P. 53 - 64.

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

4 See: Ermolina M.A. The principle of payment for environmental management and problems of law enforcement // Legal issues of construction. 2012. No. 1. P. 12 - 15.

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

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

7 Ruling of the Supreme Court of the Russian Federation dated 02/04/2015 No. 301-KG14-1670 in case No. A79-4567/2013 // Reference and legal system “Consultant Plus”: [Electronic resource] / Company “ConsultantPlus”.

A similar position is found in other judicial acts. See: Resolution of the Thirteenth Arbitration Court of Appeal dated 04/09/2015 No. 13AP-343/2015 in case No. A56-64185/2014, Resolution of the Twenty-first Arbitration Court of Appeal dated 01/27/2016 in case No. A83-2004/2015, Resolution of the First Arbitration Appeal court dated 10/04/2017 in case No. A43-20389/2016 // Reference and legal system “Consultant Plus”: [Electronic resource] / Company “ConsultantPlus”.

8 Vasiliev G.S. On the owner of waste - a reversal of judicial practice // Law. 2015. No. 12. P. 106 - 112.

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

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

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

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

13 See: clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 No. 35 “On the consequences of termination of the contract” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014. No. 8.

V.A. Belov,

Ph.D., responsible

editor of the Trade News Digest

and consumer law" legal

Institute "M-Logos", Moscow.