The USA Journals Volume 03 Issue 04-2021
205
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
205-212
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-32
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‘
ABSTRACT
The article discusses the issues of civil liability for violation of property rights to real estate, the views
of domestic and foreign scientists on this issue, strengthening of rights to real estate and responsibility
for violations of property rights in recent years.
KEYWORDS
Real estate, guilt, liability, rights and obligations, damage, private property.
INTRODUCTION
In recent years, a number of guarantees have
been established by law to ensure the
protection of property rights and civil liability
for its violation. In accordance with these
guarantees, article 53 of the Constitution of the
Republic of Uzbekistan (“private property ... is
inviolable and is under the protection of the
state”), article 166 (“Property is inviolable and
Increasing Civil Liability For Violation Of Rights To Real Estate
Rakhimjonov Akmaljon
Master Student Of Tashkent State University Of Law, Tashkent, Uzbekistan
Journal
Website:
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om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
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April 30, 2021 |
Pages:
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Doi:
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protected by law. Property inviolability means
that all organizations opposing the owner
refrain from violating property rights”) of the
Civil Code of the Republic of Uzbekistan and
article 35 of the Law “On Property of the
Republic of Uzbekistan” established the
following:
“If, as a result of the issuance of an unlawful act
of a state administration div or local self-
government div, the rights of the owner and
other persons to possess, use and dispose of
the property belonging to him are violated,
such a document shall be declared invalid in
court at the suit of the owner or the person
whose rights have been violated”.
In addition, the President of the Republic of
Uzbekistan signed the law “On Amendments and
Additions to Certain Legislative Acts of the
Republic of Uzbekistan Aimed at Ensuring Public
Safety”. This document was adopted by the
Legislative Chamber on September 12, 2018,
approved by the Senate on September 27, 2018
due to the fact that the law strengthened liability
for violation of private property rights through
Article 192 (1) of the Criminal Code of the Republic
of Uzbekistan called violation of private property
rights, in accordance with with the Decree of the
President of the Republic of Uzbekistan dated
April 5, 2019 “On measures to further improve the
system”, Decree of the President of the Republic
of Uzbekistan dated August 20, 2019 No. F-591
“On additional measures to unconditionally
ensure guarantees of property rights of citizens
and business entities”, Decree of the President of
1
Zokirov I.B. Civil law of the Republic of Uzbekistan.-
Tashkent: Adolat, 1996. -P.241-265.; Rakhmonkulov
Kh.R. General description and comments to part one
of the Civil Code of the Republic of Uzbekistan. –
Tashkent: The world of economics and law, 1997. -
P.436-441.; Rakhmonkulov Kh. Obligation right. -
Tashkent: TSUL, 2005. -P.198-206.; Egamberdieva
the Republic Uzbekistan dated April 22, 2020 “On
measures to reform the procedure for permanent
registration and registration at the place of stay”,
Resolution of the Cabinet of Ministers of the
Republic of Uzbekistan “On measures to ensure
guarantees of property rights of individuals and
legal entities and improve the procedure for
seizure and compensation of land plots”,
Regulation “On the procedure for the seizure of
land plots and the provision of compensation to
the owners of real estate objects located on the
seized land plots”, Confirmation of resolution of
the Cabinet of Ministers of the Republic of
Uzbekistan “On measures to improve the
procedure for state registration of rights to real
estate”, the adoption of provisions of the Cabinet
of Ministers the procedure for state registration
of rights to real estate ”dated December 29, 2018
No. 1060.
It is known that there are general rules of civil
liability for violation of property rights to real
estate, as well as the rights and obligations of
the parties.
In the legal literature, a separate basis for civil
liability for violation of obligations and civil
liability for damage is highlighted, as well as a
wide and in-depth analysis of their specifics
1
. In
particular, the most basic and fundamental
condition for determining civil liability for
violation of obligations is unlawful behavior.
Usually, this condition for establishing civil
liability for violation of obligations is also
interpreted as the basis for civil liability.
N.Kh. Foundations and forms of civil liability. PhD in
Law, Dissertation. Abstract.–Tashkent: 2006. -P.10-
20.; Oqyulov O. Basis for the application of civil
liability.//Law Protection.-Tashkent, 1999. –No.9. -
P.16-19.; Ioffe О.S. Responsibility under civil law. –
Leningrad: LSU, 1955.
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Kh.R.Rakhmonkulov noted that unlawful
actions that violate civil rights and obligations
are a prerequisite for liability under civil law.
Damage caused by lawful actions of
participants in civil law relations is subject to
compensation, except for cases provided by
law.
Illegal - an act that breaks the law. ...The actions
of the debtor that do not meet the
requirements for the proper performance of
obligations are also illegal
2
.
According to I.B.Zakirov, failure to fulfill
obligations arising from an agreement or other
unilateral agreement, resulting in the infliction
of unlawful harm to another person, is in all
cases unlawful. When establishing the illegality
of the debtor's actions in these cases, it is
necessary to determine under what conditions
civil liability is established for failure to fulfill
the obligation
3
.
S.S.Alekseev and Y.K.Tolstoy believe that the
absence of an offense leads to a lack of legal
responsibility, the absence of a completed
offense leads to a lack of civil liability
4
.
Concerning the issue of liberalization of civil
liability, Sh.N.Ruzinazarov expresses the
following opinion: when liberalizing civil
liability, it is especially important to pay
attention to its establishment directly in
contracts in order to further dispositive
measures of liability arising from contractual
relations between subjects of private property
law. Such a requirement directly follows from
2
Rakhmoqnkulov Kh. Law of Obligations (General).
Book.- Tashkent: TSUL, 2005.- 177 p.
3
Zokirov I.B. Civil law: Book, part I.-Tashkent: TSUL,
2009.-532 p.
4
Алексеев С.С. О составе гражданско-правовой
нарушений. //Правоведение: 1958. No.1. -47 p.;
part 1 of Article 8 of the Civil Code. In essence,
obligations can arise from actions that give rise
to civil rights and obligations, in particular from
contracts of citizens and legal entities,
although they are not provided for by law, but
on general grounds and the content of civil
legislation.
Consequently,
with
the
strengthening and liberalization of the
dispositiveness of civil liability on this basis, a
further increase in the status of contractual
liability creates the possibility of its rational
application in accordance with the principles of
social justice
5
.
Indeed, based on the terms of the contract, it
is advisable to establish civil liability and to
establish the misconduct of the person who is
responsible. In this case, it would be more
correct to understand non-fulfillment or
improper fulfillment by a person of the terms
of the contract as improper behavior. Failure to
comply with the terms of the contract for the
sale of real estate is the transfer of a land plot,
building, structure, housing, enterprise or
other similar real estate object described in the
contract and not at the level of requirements
stipulated by state cadastral documents, or
non-payment by the buyer to the seller of the
remuneration specified in the contract and
state registration of ownership of the acquired
real estate is also regarded as illegal actions.
The improper performance of obligations in
civil law is always considered as the result of a
guilty action by the debtor, and therefore in
this case the debtor must prove the absence of
Толстой Ю.К. Договоры в социалистическом
хозяйстве. -М.: Юридлит. 1964. -291 p.
5
Ruzinazarov Sh.N. The essence and basic
foundations of the liberalization of civil liability /
Development and modern problems of legal
sciences.-Tashkent: 2007.-140 p.
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his fault. This rule is understood from part 2 of
article 333 of the Civil Code. Because in this
norm this rule is clearly and strictly proved to
those who violated the obligation, the absence
of guilt.
In the manifestation of guilt in the real estate
purchase and sale agreement, forms of
willfulness and negligence are also traced. For
example, if the seller sold existing flaws in the
property without informing the buyer, the
seller's fault will be in the form of retaliation if
these flaws are hidden.
There are not so many special provisions under
which civil liability for violation of the terms of
the contract for the sale of real estate may
arise in paragraph 7 of Chapter 29 of the Civil
Code. Such provisions found their expression in
Articles 486-487 of the Civil Code. In
accordance with part 1 of article 486 of the Civil
Code, the transfer of real estate by the seller
and its acceptance by the buyer is carried out in
accordance with the deed of transfer or other
transfer document signed by the parties.
Of course, in practice, an agreement on the
transfer of real estate is not always formalized
by drawing up a deed of transfer. This practice
can usually be observed when the parties are
legal entities or citizens carrying out business
activities. A contract for the sale and purchase
of real estate between citizens can be drawn
up by transferring documents related to this
property, or by transferring the keys to
housing. In this case, the parties inspect the
jointly sold real estate, and the contract is
recognized as fulfilled with the provision of the
relevant documents and the key by the seller.
However, failure to perform such actions is
also considered a refusal to perform the
contract or an unlawful delay in its execution,
and this circumstance gives rise to civil liability.
We know that Article 985 of the Civil Code sets
out general grounds for liability for damage.
According to this article:
Damage caused to a person or a citizen's
property by unlawful action (inaction), as well
as damage caused to a legal entity, including
lost profits, are subject to compensation by the
person who caused the damage in full (Part as
amended by the Law of the Republic of
Uzbekistan dated December 15, 2000 No. 175-
II). By law, the obligation to compensate for
harm may be imposed on a person who is not
the cause of harm.
A law or agreement may establish an obligation
to pay compensation to victims in excess of
compensation for losses.
A person who has caused harm is exempt from
compensation for harm if he proves that the
harm was caused through no fault of his. The
law may provide for compensation for harm
even in the absence of the fault of the person
who caused the harm.
Damage caused by lawful actions is subject to
compensation in the cases provided by law.
Compensation for harm may be denied if the
harm was caused at the request or with the
consent of the victim, and the actions of the
person who caused the harm do not violate the
moral principles of society.
The norms of this article establish general
grounds for liability for harm (tort obligations).
These grounds are common to all types of civil
liability for harm. In addition to general
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grounds, there are special grounds provided
for by this chapter and other civil legal acts.
To bring to civil liability for damage, the
following offenses must simultaneously be
present:
a)
Causing harm (presence);
b)
Illegality of actions (inaction) of the person
who caused the harm;
c)
The causal relationship between the harm
caused and the illegal act;
d)
The guilt of the person who caused the
harm, or the guilt of the person who is
charged with monitoring the actions of the
person who caused the harm.
The content of harm caused by a tort is broader
than the content of harm caused by a violation
of a contractual obligation. In the commented
article, damage is usually understood as
material damage or damage to an intangible
benefit (life or health of an individual) or its
deprivation, manifested in a decrease or loss as
a result of an offense of property belonging to
the victim, property rights. Therefore, the
damage is material or physical. The victim who
caused material damage can be both an
individual and a legal entity. When causing
physical harm, only a citizen can be a victim.
Damage caused is recovered in full, including
lost profits.
Article 14 of the Civil Code provides an
interpretation of the concepts of real loss and
lost profit. Actual (real) damage is considered
to be the actions of a person whose rights have
been violated, committed or to be committed
in order to restore the violated right, lost or
damaged property. Lost profit is considered to
be income that the victim could have received,
but could not receive under normal conditions
of civil turnover in violation of his rights.
Legislation may provide for an exception to the
general rule for compensation for damage in
full. For example, in accordance with Article
1004 of the Civil Code, the court can reduce the
amount of damages to be recovered, taking
into account the fault of the victim and the
property status of the person who caused the
harm. In the event that the damage is caused
by the person who insured his liability, if the
insured amount is insufficient to compensate
for the damage caused, he is obliged to
compensate the difference between the
insured amount and the amount of the actual
damage (Article 992 of the Civil Code).
As a general rule, the nature of the
compensation for damage is imposed directly
on the complainant. In this case, the obligation
to compensate for harm caused by law may be
imposed not only on the person who caused
the harm, but also on the persons responsible
for his actions or obliged to control his actions.
992, 993, 994, 996, 998 and other articles of
the Civil Code provide for such cases (see the
commentary to these articles).
An obligation to pay compensation may also be
provided for by legislation or a civil contract. To
mitigate the consequences of harm to the life
or health of a citizen, legislation or an
agreement usually provides for compensation
payments. These measures are a means of civil
- legal social protection.
The existence of the fault of the inflictor of
harm was indicated as the basis for the
application of liability for causing harm. Guilt is
the mental attitude of the harm-doer to his act
and its consequences. This subjective attitude,
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depending on the forms of its manifestation, is
differentiated
into
intentional
and
unintentional. Intention is understood as
foreseeing the harmful consequences of a
wrongful act (act), the desire for its occurrence
or the conscious admission of its occurrence.
Carelessness is manifested in the absence of
attention, attentiveness, inclinations, care,
norms and other circumstances necessary in
certain situations. Only in cases where the form
of guilt of the inflictor of harm is directly
determined by law, legal consequences occur.
In other cases, regardless of intent or
negligence, the act is considered committed on
the basis of full fault, that is, damage caused in
any form of guilt is recovered in full.
A person who has caused harm is released from
liability if he proves that this is not his fault, that
is, force majeure has occurred, or through the
fault of third parties. In accordance with article
333 of the Civil Code (liability for violation of
duty), the duty of proving innocence rests with
the person who caused the harm. In this case,
the presumption of innocence is manifested,
that is, the person who caused the harm is
considered guilty until he proves his innocence
in the manner prescribed by law.
It should be noted that guilt is not strict, that is,
an absolutely necessary basis for establishing
liability for delict. The law (not in legislation)
may provide for compensation for harm even if
the wrongdoer is not at fault. Articles 993, 996,
999 of the Civil Code establish that the
obligation to compensate for harm can be
imposed on persons to whom the category of
guilt cannot be applied (due to incapacity), or
on persons not guilty of causing harm (see
Commentary on 993 , 996, 999 Articles in the
Civil Code).
The illegality of the action (inaction) of the
causer of harm as a condition of liability in part
1 of this commented article means the illegality
of the action of the causer of harm, that is, a
violation in any way of the subjective right of
another person. According to part 5 of article 9
of the Civil Code, citizens and legal entities
should not commit actions aimed at causing
harm to other persons. Obligations arising
from causing harm are based on the principle
of delict, that is, unless otherwise provided by
law (for example, causing harm in the case of
necessary defense), any harm is unlawful.
As mentioned above, incapacity should not be
associated only with the commission of actions
aimed at violating the prohibition established
by law. The scope of unlawfulness is not limited
only to this, but also broader, that is, it consists
in causing other persons any harm that
infringes on their subjective rights and
legitimate interests.
Damage caused as a result of lawful (lawful)
actions is subject to compensation only in
cases provided by law.
Summing up the cases of civil liability for
violation of obligations under the contract for
the sale and purchase of real estate, we can say
that in the Law of the Republic of Uzbekistan
“On appraisal activities” it would be advisable
to establish norms regarding the criteria,
features and methods of real estate appraisal.
In general, a clear expression of the price in the
contract of sale of real estate and its correct
determination are recognized as a necessary
condition for ensuring contractual discipline
and protecting the rights and obligations of the
parties to the contract and serve to ensure the
consistency of legal regulation of real estate
turnover in civil circulation..
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REFERENCES
I. Normative legal acts
1.1.
Constitution of the Republic of
Uzbekistan. – Tashkent: Uzbekistan,
2019, - 45 p.
1.2.
Civil Code of the Republic of
Uzbekistan. – Tashkent: Adolat, 2019, -
587 p.
1.3.
Law of the Republic of Uzbekistan “On
the Protection of Private Property and
Guarantees
of
Owners'
Rights”
(“Collection of Legislation of the
Republic of Uzbekistan”, 2012 year,
No.39, article No.446).
1.4.
Law of the Republic of Uzbekistan “On
property
in
the
Republic
of
Uzbekistan” (31
st
october 1990 year,
No.152-XII).
1.5.
Order of the President of the Republic
of Uzbekistan dated August 2019 No. F-
591 “On additional measures to
unconditionally ensure guarantees of
property rights of citizens and business
entities”.
1.6.
Resolution of the President of the
Republic of Uzbekistan dated April 5,
2009 No. PP-4270 “On measures to
further improve the system of state
registration of rights to real estate”.
1.7.
Resolution of the Cabinet of Ministers
of the Republic of Uzbekistan dated
December 29, 2018 No. 1060 “On
measures to improve the procedure for
state registration of rights to real
estate objects”.
1.8.
Regulation of the Cabinet of Ministers
of December 29, 2018 No. 1060 “On the
procedure for state registration of
rights to real estate”.
II. Books and publications
2.1.
Zokirov I.B. Civil law: Book, part I.-
Tashkent: TSUL, 2006.-366 p.
2.2.
Zokirov I.B. Civil law: Lesson, part I.-
Tashkent: TSUL, 2009. – 533-534 p.
2.3.
Rakhmonkulov
Kh.R.
General
characteristics and comments to part one
of the Civil Code of the Republic of
Uzbekistan. –Tashkent: The world of
economics and law, 1997. -P.436-441.
2.4.
Review of the Civil Code of the Republic
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2./ Ministry of Justice of the Republic of
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2.5.
Civil law. Part II. –Tashkent: TSUL, 2008. –
245 p.
2.6.
Rakhmonkulov Kh.R. Obligatory law
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3.1.
Алексеев С.С. О составе гражданско-
правовой нарушений. //Правоведение:
1958. No.1. - 47 p.
3.2.
O.Oqyulov. Grounds for the application of
civil liability // Law protection.-Tashkent,
1999.-No.9. -P. 16—19.
3.3.
Ruzinazarov Sh.N. The essence and basic
foundations of the liberalization of civil
liability / Development and modern
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The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
205-212
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-32
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problems of legal sciences.-Tashkent: 2007.
– P. 140.
IV. Internet (electronic) resources
4.1.
4.2.
4.3.
4.4.
