As seen from the above rules, the period of acquisitive prescription, set the RF Law "On Export and Import of Cultural Property" for the acquisition of ownership of movable cultural property, for fifteen years longer period of acquisitive prescription, the established art. 234 of the Civil Code of Russia for the acquisition of ownership of movable things. There is a conflict of laws. This conflict could be resolved on the basis of the provisions contained in paragraph 2 of Art. 3 Civil Code, under which the rules of civil law contained in other laws must conform to the Civil Code. The priority rules of the Civil Code before the norm of the RF Law "On Export and Import of Cultural Property" can be justified also by the priority rules of higher standards of the early norm. However, if we proceed from the priority rules for a special rule over the common norm, an inverse situation. The general rule in this case, a rule established by the Civil Code, and special - a rule established by the RF Law "On Export and Import of Cultural Property", due to the fact that Art. 234 CC case of movable things in general, and in the RF Law "On Export and Import of Cultural Property" - the special categories of movables - driven by things that are attributable to cultural values. Non-priority rule that a later rule on the early standard in this case can be justified as follows: at the time of entry into force of the RF Law "On Export and Import of Cultural Property" acted rate Fundamentals of Civil Legislation of the USSR and the Republics (Part 3 of Art. 50) which sets the same as Art. 234 Civil Code, the period for the acquisition of ownership by prescription ownership of movables (five years). Thus, the rate of the RF Law "On Export and Import of Cultural Property" at that time was of a special character in relation to the norm of the Fundamentals and was later. In our view, the extension for the acquisition by prescription of movable cultural property in comparison with other movable things four times is quite justified in terms of protecting the ownership of movable cultural property. However, the situation of conflict of norms of acquisitive prescription, contained in the Civil Code and in the RF Law "On Export and Import of Cultural Property", is abnormal and should be resolved by the legislator.
Another difference between the rules of acquisitive prescription, contained in the RF Law "On Export and Import of Cultural Property", from a similar provision contained in Art. 234 Civil Code, is the absence in the first condition of continuity of possession of a thing. What is the meaning of this exemption is not entirely clear. We believe that this difference is a consequence of a trivial error that occurred at the stage of development or adoption of the Act. If we assume that the legislature intentionally excluded the condition of continuity of possession, then the right of ownership of cultural property by virtue of acquisitive prescription is necessary to know her 20 years in total, with the cultural value may change the owner and then return to the original owner. Breaks in the possession of the same legal value have not, and the terms of ownership should be cumulative. This situation would not follow the rules for acquiring property rights to ownership limitations set forth in Art. 234 Civil Code (the faithful, open and continuous possession of the thing as his own), as well as theoretical views on the acquisition of ownership by prescription ownership.
Special responsibility of the person holding the thing, attributed to cultural values, is to ensure proper maintenance of this thing. This obligation is formulated directly in the RF Constitution, the Federal Law "On Objects of cultural heritage (historical and cultural monuments) of peoples Russia, the Federal Law" About the Museum Fund of the RF and museums in Russia, "the federal law" On Export and Import cultural values, "Fundamentals of the legislation in Russia about the culture, the RSFSR Law" On Protection and Use of Historical and Cultural Monuments ", the Regulation on the Protection and Use of historical and cultural monuments.
The concept of "maintaining the cultural values" in these regulations shall not be disclosed, but this concept can be derived through their analysis and interpretation.
It appears that the proper content of the things that are attributable to cultural values, is:
1) ensuring their physical safety, prevention of damage (loss of their qualities);
2) implementation, as appropriate, measures for their repair (restoration);
3) adoption of measures to prevent theft;
4) prevent the transfer of cultural property to a person who is not capable of ensuring their proper maintenance.
For breach of the duty of proper maintenance of cultural property to establish liability. Penalties for improper maintenance of cultural values provide the normative acts of different branches of law, and therefore differ from each other by their legal nature. Thus, Civil Code, as the possible consequences of improper (mismanagement), the content of cultural values, provides a special reason to stop the ownership of them - compulsory acquisition improvidently maintained cultural values. RF Criminal Code establishes liability for failure to return to the territory of Russia objects of artistic, historical and archeological heritage of the peoples of Russia and foreign countries (Article 190), as well as the destruction or damage of monuments of history, culture, taken under state protection, as well as objects or documents of historical or cultural value (Art. 243). RF Code on Administrative Violations provides for liability for violation of the conservation, utilization and protection of cultural heritage (historical and cultural monuments) of federal significance, their territories and zones of protection (Article 7.13).
The Civil Code contains no specific rules on the form of the transaction in respect of movable cultural property, but in Part 1 of Art. 45 RF Law "On Export and Import of Cultural Property" such rules are established. In accordance with this provision of the transaction in respect of movable cultural property must be in writing. Thus, a special rule about the form of transactions in respect of movable cultural property is not yet installed the Civil Code, and the RF Law "On Export and Import of Cultural Property." The same Act provides for consequences of non-written form of the transaction: a transaction entered into in breach of the order shall be invalid "(Part 3 of Art. 45).
In respect of movable cultural property included in the Museum fund Russia <*>, the Federal Law "On the Museum Fund of the RF and museums in Russia," provides the state registration of transactions in the State catalog of the Museum Fund of the RF. In accordance with Part 4 of Art. 10 of the Act, the transfer of property rights and other acts of physical and legal persons to establish, change or termination of the civil rights and obligations in respect of museum objects and museum collections, are included in the Museum fund shall be made only after the registration of transactions in the State Museum Fund catalog Russia Federation. The catalog is the register of transactions (the register of action of individuals and entities aimed at the establishment, modification or termination of civil rights and obligations in respect of museum objects and museum collections, are included in the Museum fund). In accordance with the Statute of the State Museum Fund catalog transactions recorded in the register the following transactions with museum objects and collections: the purchase and sale, donation, exchange, transfer of temporary or indefinite possession or use, inheritance.
--------------------------------
http://www.lawmix.ru/comm.php?id=2484
03.04.2009, 20:30
REGULATION OF CIVIL TRAFFIC Movable cultural objects
Древовидный вид