2. The procedure for the creation and liquidation of religious associations in Russia

Starting this chapter, I consider it necessary to recall the fact that religious associations can exist in two forms, namely:

Religious group

Religious organization.

A religious group is a “voluntary association of citizens, formed for the purpose of jointly professing and spreading the faith, carrying out activities without state registration and acquisition of legal capacity of a legal entity."

A religious organization has the same meaning, except for the fact that its formation requires a certain number of followers and state registration. All this is due to the fact that a religious organization, unlike a religious group, is a legal entity, with all the ensuing consequences.

To create a religious group, all that is required is the desire of the group members themselves. A religious group is usually the first step towards creating a religious organization.

To create a religious organization there are a number of requirements established by law:

1) The founders of a local religious organization can be at least ten citizens Russian Federation united in a religious group.

2) Availability of confirmation of its existence in this territory for at least fifteen years, issued by the authorities local government, or confirmation of entry into the structure of a centralized religious organization of the same religion, issued by the specified organization.

Considering that the law does not regulate the procedure for registering religious groups with local governments, issuing confirmation and its form, it can be difficult to provide evidence of the existence of a religious group on the territory of the Russian Federation for a certain period of time. There are several ways to solve this problem. As a rule, evidence of the duration of the existence of a religious group must be presented to the local government body by the group itself in the form of state registration data and local records of the former Council for Religious Affairs under the Council of Ministers of the USSR, archival materials, court decisions, testimony and other forms of evidence.

3) Centralized religious organizations are formed if there are at least three local religious organizations of the same religion in accordance with the religious organizations’ own regulations, if such regulations do not contradict the law.

Registration of religious organizations is carried out in accordance with the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”.

The decision on state registration of a religious organization is made federal body executive power, authorized in the field of state registration public associations(federal registration service), or its territorial body. Entering into a single State Register legal entities, information on the creation, reorganization and liquidation of religious organizations, as well as other information provided for by federal laws, is carried out by the authorized registration body on the basis of a decision on the relevant state registration taken by the federal state registration body or its territorial body.

A religious organization may be denied registration only in five cases:

The goals and activities of a religious organization contradict the laws of the Russian Federation

The organization being created is not recognized as a religious one

The charter and other documents submitted do not comply with the requirements of the laws of the Russian Federation

An organization with the same name was previously registered in the Unified State Register of Legal Entities

The founder(s) are not authorized.

Religious organizations can be liquidated:

§ by decision of their founders or a body authorized to do so by the charter of a religious organization;

§ by court decision in case of repeated or gross violations norms of the Constitution of the Russian Federation, this Federal Law and other federal laws

§ when systematic implementation religious organization of activities that contradict the goals of its creation (statutory goals).

§ If a religious organization repeatedly fails to provide, within the prescribed period, updated information necessary to make changes to the unified state register of legal entities, the religious organization may be liquidated by court decision.

The grounds for liquidation and ban on the activities of a religious organization or religious group are:

Violation of public safety and public order;

Actions aimed at carrying out extremist activities;

Forced destruction of the family;

Encroachment on the personality, rights and freedoms of citizens;

Causing damage to the morality and health of citizens established in accordance with the law, including the use of narcotic and psychotropic drugs, hypnosis, and the commission of depraved and other illegal acts in connection with their religious activities;

Inclination to suicide or refusal for religious reasons to provide services medical care persons in a condition dangerous to life and health;

Obstruction of compulsory education;

Forcing members and followers of a religious association and other persons to alienate their property in favor of the religious association;

Preventing a citizen from leaving a religious association with the threat of harm to life, health, property, if there is a danger of its actual execution, or the use of force, or other illegal actions;

Encouraging citizens to refuse to fulfill their civil duties established by law and to commit other illegal actions.

State registration of a religious organization in connection with its liquidation is carried out within no more than ten working days from the date of submission of all documents drawn up in the prescribed manner.

The legal capacity of a liquidated religious organization as a legal entity is terminated, and the property of the said religious organization is distributed in accordance with its charter and the civil legislation of the Russian Federation.

3. Rights and obligations of religious associations under the legislation of the Russian Federation

The legislation of the Russian Federation provides great opportunities for religious associations. Article 28 of the Constitution of the Russian Federation proclaims freedom of conscience and religion, including the right to profess, individually or together with others, any religion or not to profess any, the freedom to choose, have and disseminate religious and other beliefs and act in accordance with them.

The rights of a religious group, on the basis of the Federal Law “On Freedom of Conscience and Religious Associations,” include the performance of divine services, other religious rites and ceremonies, as well as the implementation of religious teaching and religious education of their followers.

Religious organizations have a wider range of rights. Among others, the following rights belong to religious organizations:

1) Religious organizations have the right to establish and maintain religious buildings and structures, other places and objects specifically intended for worship, prayer and religious meetings, religious veneration (pilgrimage).

2) To freely perform divine services, other religious rites and ceremonies in religious buildings and structures and on the territories related to them, in other places provided to religious organizations for these purposes, in places of pilgrimage, in institutions and enterprises of religious organizations, in cemeteries and in crematoria, as well as in residential premises.

3) Conduct religious ceremonies in medical and preventive and hospital institutions, orphanages, boarding homes for the elderly and disabled, in institutions executing criminal penalties in the form of imprisonment, at the request of the citizens in them in premises specially allocated by the administration for these purposes .

4) Produce, acquire, export, import and distribute religious literature, printed, audio and video materials and other religious items.

5) Implement charitable activities both directly and through the establishment of charitable organizations.

6) Create cultural and educational organizations, educational and other institutions, as well as establish funds mass media. Create institutions of professional religious education (spiritual educational institutions) for the training of ministers and religious personnel.

7) Install and maintain international connections and contacts, invite foreign citizens for the purpose of engaging in professional, including preaching, religious activities in these organizations in accordance with federal legislation.

8) Have the right of ownership to property acquired or created by them at the expense of own funds, donated by citizens, organizations or transferred to religious organizations into the ownership of the state or acquired by other means that do not contradict the law, have ownership of property abroad, as well as use for their needs land plots, buildings and property provided to them by state, municipal, public and other organizations and citizens, in accordance with the legislation of the Russian Federation.

9) Implement entrepreneurial activity and create own enterprises in the manner established by the legislation of the Russian Federation.

10) Religious organizations, in accordance with their charters, have the right to conclude employment contracts(contracts) with employees.

Religious organizations also have other rights provided for by the Federal Law “on freedom of conscience and religious associations” and the Federal Law “on non-religious associations”. commercial organizations".

The responsibilities of religious organizations include:

v A religious organization is required to indicate its full name when carrying out activities.

v A religious organization is obliged to inform the body that made the decision on its state registration about changes in the information specified in paragraph 1 of Article 5 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”. Repeated failure by a religious organization to submit, within the prescribed period, updated information necessary to make changes to the unified state register of legal entities is the basis for the body that made the decision on state registration of the religious organization to apply to the court with a request to recognize this organization as having ceased its activities as a legal entity. and on its exclusion from the unified state register of legal entities.

v Annually inform the body that made the decision on its state registration about the continuation of its activities.

v A religious organization operates on the basis of its charter, which states:

name, location, type of religious organization, religion and, in the case of belonging to an existing centralized religious organization, its name; goals, objectives and main forms of activity; procedure for creating and terminating activities; the structure of the organization, its governing bodies, the procedure for their formation and competence; sources of funds and other property of the organization; the procedure for making changes and additions to the charter; procedure for disposing of property in the event of termination of activity; other information related to the specifics of the activities of this religious organization.

The responsibilities of a religious organization lie only with the organization as a whole as a legal entity and do not extend to its followers.

A religious group has no responsibilities to the state, with the exception that it should not act contrary to the constitution and legislation of the Russian Federation, and acts as a community of like-minded people united by a common goal - the profession and spread of faith.

4. Guarantees of the constitutional and legal status of religious associations in the Russian Federation

After many years of anti-religious policy of the Soviet Union, with the adoption of the RSFSR Law of October 25, 1990 No. 267-1 “On Freedom of Religion,” a new era began in the development of state-confessional relations in our country. The above-mentioned law for the first time in many years determined the basis of the legal status of religious associations. The adoption of the Constitution of the Russian Federation secured the recognition of a number of international treaties in the field of law and, in particular, the foundations of religious status. And in 1997, the Federal Law “On Freedom of Conscience and Religious Associations” was adopted. Thus, in the nineties of the last century, it was formed legal basis activities of religious associations in Russia. At the same time, for the first time in the history of Russia, generally accepted principles and norms international law and international treaties became part of the legal system of the Russian Federation.

The most important normative legal act regulating the legal status of religious associations is the Constitution of the Russian Federation of 1993, which proclaimed freedom of conscience, freedom of religion, including the right to profess, individually or together with others, any religion or not to profess any, to freely choose, have and disseminate religious and other beliefs and act in accordance with them (Article 28), religious associations are separated from the state and are equal before the law (Article 14).

Then, in second place in importance, international legal acts, among which:

> Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948. Here, in particular, it says:

“Everyone has the right to freedom of thought, conscience and religion; this includes freedom to change his religion or belief and freedom to manifest his religion or belief, either alone or in community with others and in public or private, in teaching, worship and observances. orders."

> International Covenant on Civil and Political Rights, from which it follows:

“No one shall be subjected to any compulsion which impairs his freedom to have or adopt a religion or belief of his choice. Freedom to manifest a religion or belief is subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health and morals and fundamental rights and freedoms of others."

> European Convention for the Protection of Human Rights and Fundamental Freedoms:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom to manifest his religion or belief, either individually or in community with others and in public or private, in worship, teaching, worship or worship.” rituals".

> The “Final Document of the 1989 Vienna Meeting” stipulates that the parties to the treaty “will respect human rights and fundamental freedoms, including freedom of thought, conscience, religion and belief, for everyone, without distinction as to race, sex, language or religion. They also confirm the universal importance of human rights and fundamental freedoms, respect for which is an essential factor in the peace, justice and security necessary to ensure the development of friendly relations and cooperation between them, as among all states."

Despite the fact that the above acts do not mention religious associations as such, the rules dictated by the provisions of the above documents regulate the rights of religious associations and indicate their responsibilities.

Next, we should highlight the races not mentioned in this course work Federal Law "On Freedom of Conscience and Religious Associations". The above law most fully sets out the legal status of religious associations in the Russian Federation. Since its adoption, disputes have not subsided that this legal act contradicts the Constitution of the Russian Federation, which establishes the equality of all religious associations before the law. The following lines are included in the preamble of the law: “...recognizing the special role of Orthodoxy in the history of Russia, in the formation and development of its spirituality and culture, respecting Christianity, Islam, Buddhism, Judaism and other religions that form an integral part of the historical heritage of the peoples of Russia...”. Some researchers point to the fact that by such an indication of the “special role of Orthodoxy” and the list of recognized state religions, the law infringes on the legal status of other religious associations not included in this list.

Here again the question arises of recognizing the existence of the concept of “traditional religion” in Russia. Director of the Institute of State-Confessional Relations and Law I.V. Ponkin, being a defender of this approach, says that differentiation of the entire array of existing religious associations by time of creation, number of adherents and distribution throughout the country is a fair step and is inherent in the legislation of many countries (including large quantity European).

Also, the legal status of religious associations is revealed by the Federal Law “On Non-Commercial Organizations”, which sets out the following provisions:

"Public and religious organizations (associations) are recognized as voluntary associations of citizens, in established by law order of those united on the basis of their common interests to satisfy spiritual or other non-material needs.

Public and religious organizations (associations) have the right to carry out business activities consistent with the goals for which they were created.

Participants (members) of public and religious organizations (associations) do not retain rights to the property transferred by them to these organizations, including membership fees. Participants (members) of public and religious organizations (associations) are not liable for the obligations of the said organizations (associations), and the said organizations (associations) are not liable for the obligations of their members.”

The peculiarities of the legal status of religious associations are also enshrined in other legal acts, such as the Civil Code of the Russian Federation, the Administrative Code of the Russian Federation and others, but all of them essentially only duplicate the above acts.

In conclusion, we can conclude that religious associations have a rather “vague” constitutional and legal status; the rules governing issues relating to their status are not always consistent and sometimes contradictory. Russia is on the verge of a transition to the recognition of traditional religion, when all religious associations are equal before the law, but still one of them has a legally enshrined status of traditional. Time will tell how these problems will be reflected in Russian legislation.

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Religious associations are created on a voluntary basis by citizens permanently and legally residing in the territory of the Russian Federation. The goals of creating religious associations are:

• Joint Worship and Propagation of Faith
• Conducting various religious rituals
• Religious education, training

Registration of religious associations (organizations) can be in two forms: local and centralized. In order to create a local religious organization, you need confirmation that this religious group has existed for at least 15 years. A certificate of this can be issued by a local authority. A necessary condition for creating a religious organization is the presence of at least ten founders who have Russian citizenship. A centralized religious association must consist of three or more local religious organizations. A religious organization, regardless of its scale, must have a Charter approved by the founders or a centralized religious association. The charter of a religious organization must contain information about the members of the organization, the goals and objectives that they implement. The name of the organization, its address, type of organization, religion, sources of funds and other information can also be found in the approved Charter of the religious association.

Registration of a religious association (organization) follows the same procedure as the registration of any other non-profit association. The only difference is information about the basics of religion, its history of origin and development, and the attitude towards family and marriage, health, and education of members of a given religious organization must also be indicated. I would like to dwell in more detail on the possible grounds for refusing to register a religious association. It may be refused in the following cases:

• The activities of the organization are contrary to the laws of the Russian Federation
• Refusal to recognize the religiosity of an organization
• Documents are unreliable
• If an organization with a similar name has already been registered in the register
• The founder does not have the necessary rights

In case of refusal, the religious organization will be notified. The document is provided in written form. The reason for refusal due to inexpediency cannot be used by the state registration authority. Such reasons or evasion of registration can be appealed in court.

Subjects of property rights

As we have already discussed earlier, a religious association has the right to undergo state registration and acquire the rights of a legal entity as a religious organization or to act freely without registration as a religious group.

Religious group

Current legislation does not grant a religious group the legal personality of a legal entity, which means that it, while not being a full-fledged legal entity, has no legal ability to own property. But religious groups, according to Art. 7, paragraph 1 of the Federal Law “On Freedom of Conscience and Religious Associations”, have the right to use the premises and other property necessary for its activities provided by members of the religious group. Thus, The subjects of rights to this property are individuals - members of a religious group.

Single-subject the method of possessing property rights and obligations means their ownership one person. For example, a member of a religious group may provide premises that he or she owns to the group for use for religious purposes. This method was very common in Tsarist Russia, when the Old Believer and sectarian communities were deprived of the possibility of legal existence until 1905. Due to the lack of legal personality of a religious group, it cannot enter into a contract with the owner of premises or other property. legal force an agreement ensuring her right to use this property. A religious group is entirely dependent on the will of the owner, who at any time has the right to confiscate the property he has provided to it. To more reliably protect the interests of a religious group from the arbitrariness of the property owner, an option is possible when citizen A. (the owner of the property) enters into an agreement with citizens B., V., G., etc. (members of the religious group) to provide them with property for compensation or free use as individuals. In this case, the owner of the property can terminate the contract only upon expiration of its validity period, and ahead of schedule - by mutual agreement of the parties in the event of violation of the terms of the contract by users and in other cases provided for by law or the contract, but not in an absolutely arbitrary manner. However, this inevitably raises the problem of taxation of beneficiaries in this transaction.

Multi-subject The method of possessing property rights means that the subjects of the right to property used by a religious group are either the entire group of participants or some of them. In accordance with Part 1 of Art. 244 of the Civil Code of the Russian Federation, property owned by two or more persons belongs to them by right common property. Property may be in common ownership with the determination of the share of each owner in the right of ownership ( shared property) or without defining such shares ( joint own).

Religious organization

Thus, a legal entity is defined by listing its mandatory characteristics. As a result of the actions of the founders, a new subject of law appears, which is not an individual, but a disembodied, “intangible” entity, which the law recognizes as independent participants in civil legal relations. A legal entity is not the building in which it is located, and not the people who are its members, participants, and employees. It acts on its own behalf, and not on behalf of its participants, and the civil rights and obligations acquired by it belong to it, and not to its participants.

Part 3 of the same Article 48 of the Civil Code of the Russian Federation classifies public and religious organizations as legal entities in respect of which their founders (participants) do not have property rights. This means that the property of a religious organization does not belong to its founders or participants, although they have the rights to participate in its management provided for by the organization’s charter. Part 2 of Article 117 and part 4 of Article 213 of the Civil Code of the Russian Federation also establish that participants (members) of public and religious organizations do not retain rights to the property transferred by them to these organizations, including membership fees. Thus, a member (participant) of a religious organization who leaves it for some reason (change of residence, conflict) does not have the right to demand that the property that he previously transferred to the ownership of the religious organization be returned to him. (On the contrary, he may demand the return of property that he provided in free use religious organization, while remaining its owner). If a religious organization is liquidated, its property remaining after satisfying the creditors' claims is used for the purposes specified in the charter (Part 4 of Article 213 of the Civil Code of the Russian Federation). Members (participants) of a liquidated religious organization cannot “receive back” the property they once transferred into the ownership of this religious organization.

Participants (members) of religious organizations are not liable for the obligations of the religious organizations in which they participate as their members, and these organizations are not liable for the obligations of their members (Part 2 of Article 117 of the Civil Code of the Russian Federation). This means, in particular, that in the event of debt collection from a religious organization, it cannot be applied to personal property and cash, which are the property of the clergy, employees, and parishioners. Their right (but not obligation!) is to voluntarily allocate donations from personal funds to cover the debts of their religious organization. Likewise, if a participant in a religious organization (including a clergyman, a member of the governing body) has debts such as individual(for example, an unpaid loan repayment fee, etc.), this debt cannot be recovered from a religious organization.

Religious organizations, acting as one of the varieties non-profit organizations, have special legal capacity. A legal entity may have civil rights corresponding to the goals of its activities provided for in its constituent documents, and bear responsibilities associated with these activities (Article 49, paragraph 1 of the Civil Code of the Russian Federation). In relation to religious organizations, this means that they can only have those civil rights and bear responsibilities that are related to their purpose, defined in Art. 6 Federal Law “On Freedom of Conscience...”, that is, with the joint confession and spread of faith.

According to Part 4 of Article 213 of the Civil Code of the Russian Federation, religious organizations, being the owners of the property acquired by them, can use it only to achieve the purposes provided for in their constituent documents(statutes). In this regard, property belonging to religious organizations must be used by them exclusively to achieve, firstly, their statutory goals, and secondly, those goals that are, by their nature, related to their statutory goals. The use of property by religious organizations for purposes other than those provided for in the charter is not permitted.

The legal capacity of a legal entity arises at the moment of its creation. Paragraph 2 of Article 51 of the Civil Code of the Russian Federation specifies that a legal entity is considered created from the moment of its state registration. Thus, for religious associations wishing to have the rights of a legal entity, state registration is a necessary condition for access to this status. A religious organization begins to exist not from the moment of its constituent assembly, but from the moment of state registration.

Liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons (Article 61, paragraph 2 of the Civil Code of the Russian Federation). The grounds for liquidation of a religious organization as a legal entity are listed in Art. 14 of the Federal Law “On Freedom of Conscience and Religious Associations” (see Chapter 6 of this book). The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry to this effect in the Unified State Register of Legal Entities (clause 8 of Article 63 of the Civil Code of the Russian Federation).

The provisions of Article 52 of the Civil Code of the Russian Federation, which determined the basic requirements for the constituent documents of a legal entity, in relation to religious organizations are specified in the Federal Law “On Freedom of Conscience and on Religious Associations”. The constituent document of a religious organization is the charter approved by its founders (or founder).

A legal entity acquires civil rights and assumes civil responsibilities through its organs, created and operating in accordance with the law, other legal acts and the charter of a religious organization. Organs may be sole(for example, the rector of the parish) and collegial(for example, Parish Assembly, Parish Council) (Article 53 of the Civil Code of the Russian Federation). Among the bodies of the local Orthodox religious organization, in accordance with model charter, include the Diocesan Bishop, the Rector, the Parish Assembly, the Parish Council, the Chairman of the Parish Council, as well as Audit committee. In local religious organizations of other faiths, bodies may be named differently, in accordance with confessional specifics.

In accordance with Art. 56 of the Civil Code of the Russian Federation, legal entities, except for owner-financed institutions, are liable for their obligations with all their property. However, the legislator retreated from the straightforward application of the principle of equality before the law and took into account that liturgical objects should not be sold for the debts of a religious organization in order to avoid offending religious feelings. According to Art. 21, clause 5 of the Federal Law “On Freedom of Conscience and Religious Associations”, movable and immovable property for religious purposes cannot be foreclosed upon by claims of creditors. The list of types of property for religious purposes, which cannot be foreclosed upon claims of creditors, must be established by the Government of the Russian Federation at the proposals of religious organizations (Article 21 of the Federal Law “On Freedom of Conscience and Religious Associations”). Until now, such a list has not been established, including due to the rarity of the occurrence of relevant situations in law enforcement practice.

In the ruling of the Constitutional Court of the Russian Federation dated October 19, 2010 No. 1406-О-О on the complaint of the applicant challenging the constitutionality of the commented paragraph of the law, it was concluded that

“these provisions establishing judicial immunity from foreclosure on the property of religious organizations that have a religious purpose and thereby ensuring the functional use of this property (religious buildings and structures, other objects of religious purpose), the value of which is determined, first of all, by the nature of such use, do not secure absolute property protection of religious organizations from the claims of creditors and do not deprive the latter of the right to demand foreclosure on other property that does not have a religious purpose.

As follows from the presented judicial acts, in satisfying the demands of a local religious organization to recognize as illegal the actions of the bailiff to foreclose and seize its property as a debtor, the courts proceeded from the evidence of the case materials (the list of operating synagogues of the Federation of Jewish Societies of Russia, the testimony of witnesses, conclusions of experts, etc.) the fact of using the controversial extension to the synagogue building for liturgical purposes, i.e. for worship, other religious rites and ceremonies.

Thus, despite the lack approved by the Government Russian Federation list of types of property for liturgical purposes, which cannot be foreclosed upon claims of creditors, the conclusions of the courts in the applicant’s case about the use of the specified real estate specifically for liturgical purposes were made on the basis of an assessment of the circumstances of a particular case, including the functional characteristics of this property and its actual use."

An important feature established in Part 1 of Article 65 of the Civil Code of the Russian Federation is that a religious organization cannot be declared insolvent (bankrupt). This means that, regardless of the size of the debt obligations of a religious organization and the length of time for their non-fulfillment, either voluntary or forced bankruptcy procedures cannot be applied to it. (A religious organization that has debts that it is unable to pay has the right to decide on voluntary liquidation in accordance with Article 14 of the Federal Law “On Freedom of Conscience...” The property of the liquidated religious organization, except for property for religious purposes, will be sold to satisfy the claims of creditors.)

Types of property rights of religious organizations

Ownership

Possession- this is the ability to have this property, the exercise of physical power over a thing. Ownership of a religious building means that the religious organization that owns it controls access to it (possesses keys, manages watchmen, security guards). Possession of objects of worship and religious literature means that they are physically located on premises owned by a religious organization.

Use means exploitation of a thing, extraction from property of it useful properties, for example, reading a book, working on a computer, performing worship in a religious building. In most cases, the use of property is associated with the right of ownership, since in order to use the property, it must be owned.

Order- this is the opportunity to change the legal attitude to the owner’s thing by changing its ownership, condition or purpose.

Art. 209 of the Civil Code of the Russian Federation establishes that

“the owner has the right, at his own discretion, to perform any actions in relation to the property belonging to him that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner, the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.”

For example, a religious organization can sell property owned by it, rent it out, provide it for free use, donate it, and also destroy things that have become unusable.

Responsible to the owner burden of maintenance his property (Article 210 of the Civil Code of the Russian Federation). The owner of property protected as a historical and cultural monument accepts a protective obligation and cannot destroy or damage it. Export is also limited cultural values from the country.

As a rule, the property of religious organizations is property independently created or acquired by them, as well as received by them as a donation. After the adoption of the Federal Law of November 30, 2010 No. 327-FZ “On the transfer to religious organizations of property for religious purposes that is in state or municipal ownership,” in the coming years, one can foresee an intensification of the transfer to the ownership of religious organizations of property for religious purposes nationalized by the Soviet government (more details see next chapter).

Right of free use

The Civil Code of the Russian Federation reveals the content of the concept of “gratuitous use” through the definition of a gratuitous use agreement in Article 689. Under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers the thing for gratuitous temporary use to the other party (the borrower), and the latter undertakes return the same item in the condition in which she received it, taking into account normal wear and tear or in the condition stipulated by the contract.

In Russian, the word “loan” is also used in the sense of “loan”, therefore, in order to avoid ambiguity, legislation on freedom of conscience and on religious associations does not use the terms “loan agreement”, “lender”, “borrower” introduced by the Civil Code of the Russian Federation in relation to legal relations arising when religious organizations are provided for free use of property for religious purposes that is in state or municipal ownership. But on the tongue civil law a religious organization that uses, for example, a religious building for free use is called a “borrower.”

Article 22 of the Federal Law “On Freedom of Conscience and Religious Associations” established that

“religious organizations have the right to use for their needs land plots, buildings and property provided to them by state, municipal, public and other organizations and citizens, in accordance with the legislation of the Russian Federation. The transfer to religious organizations for use according to their functional purpose of religious buildings and structures with associated land plots and other property for religious purposes, which is in state or municipal ownership, is carried out free of charge.”

The vast majority of religious property nationalized by the Soviet state remains state or municipal property to this day, including existing religious buildings. During the Soviet period, legislation did not at all provide for the possibility of transferring this property into the ownership of religious societies. Until 2010, Russian legislation spoke about the possibility of transferring property for religious purposes “for ownership or free use” to religious organizations, leaving the choice of option to the discretion of the law enforcement officer. In addition, until 2002, legislation on the protection of historical and cultural monuments did not allow the alienation of property protected as a monument from state ownership.

A religious organization that has property under the right of free use has the rights to own and use this property. However, unlike the owner, she does not have the right to dispose of this property, that is, she does not have the right to independently sell it, rent it out, or provide it for free use to a third party. The provisions of the Civil Code of the Russian Federation on the right of the tenant, with the consent of the lessor, to dispose of the leased property, including subletting it or transferring it for free use to third parties (Article 615, Part 2 of the Civil Code of the Russian Federation), do not apply to the agreement for gratuitous use (Article 689, Part 2 of the Civil Code of the Russian Federation).

However arbitrage practice allows the borrower the right to lease to third parties property received under a free use agreement. In the definition of the Supreme arbitration court RF dated January 29, 2009 No. 2128/08 in case No. A48–1314/07–10 it is stated that “Art. 36 of the Civil Code of the Russian Federation does not contain rules prohibiting the borrower, with the consent of the lender, from transferring property received under an agreement for gratuitous use for rent.” The Resolution of the Federal Arbitration Court of the West Siberian District dated 05/07/2010 No. A75–2599/2009 concluded that, taking into account the absence of the aforementioned prohibition in the Civil Code of the Russian Federation, “the transfer by the borrower of property for rent with the consent of the lender cannot be regarded as as a violation of the law, and the condition of the gratuitous use agreement providing for such a right of the borrower is not invalid.”

Religious organizations use state or municipal property for religious purposes with the right of free use on the basis free use agreement.

In accordance with Article 698 of the Civil Code of the Russian Federation, the lender (in this case, the authorized state or municipal body that entered into an agreement on behalf of the owner) has the right to demand early termination agreement for gratuitous use in cases where the borrower (religious organization):

• uses the thing not in accordance with the contract or the purpose of the thing;
• fails to fulfill obligations to maintain the thing in good condition or its contents; significantly worsens the condition of the thing;
• transferred the item to a third party without the consent of the lender.

However, as a rule, agreements for free use were concluded with religious organizations in the form of a “gratuitous agreement.” unlimited use." These, in particular, were the security agreements concluded when transferring for free use to religious organizations objects protected as historical and cultural monuments. (Contrary to popular belief, this standard contract contained not only obligations to protect the monument. He is a contract on the transfer of property for free use.)

Perpetual use, from the point of view of the Civil Code, is not an “eternal”, “permanent” right, but only means that the contract was concluded without specifying a period. This significantly worsens the position of the religious organization. If the contract is concluded for a certain period, the owner can terminate it early only on the grounds listed above. The owner has the right to unilaterally terminate the agreement of gratuitous perpetual use at any time, even though the religious organization conscientiously and carefully uses the property provided to it. This follows from the first part of Art. 699 of the Civil Code of the Russian Federation: “Each of the parties has the right at any time to refuse a contract for gratuitous use concluded without specifying a period, notifying the other party one month in advance, unless the contract provides for a different notice period.”

Thus, the authorities retain a certain amount of discretion when deciding on the use of property for religious purposes. Property already transferred to a religious organization for free use can, if there is a corresponding application, be transferred to its ownership; in the absence of such an application, it can be retained by it under the previous right of free use, or, using the above legal grounds, it can be withdrawn from the religious organization , including for subsequent transfer to another religious organization.

In accordance with Part 2 of Article 4 of the Federal Law “On the transfer to religious organizations of property for religious purposes that is in state or municipal ownership”:

"transfer of state or municipal property religious purposes for the free use of a religious organization is carried out if:

1) this property is not subject to alienation from state or municipal property in accordance with the legislation of the Russian Federation;

2) the transfer of this property for free use was proposed by the religious organization itself;

3) this property is a premises located in a building, structure, structure that is not related to property for religious purposes in accordance with Article 2 of this Federal Law.”

According to general rules Art. 421 of the Civil Code of the Russian Federation “Freedom of Contract”, the transfer of property for free use is carried out on the basis of a voluntary decision of the property owner (lender). However, with regard to property for religious purposes that is in state or municipal ownership, the Federal Law “On the transfer of property for religious purposes to religious organizations...” actually established in Art. 7, that the authorized government body is obliged to satisfy the application of a religious organization for the transfer to its ownership or free use of property for religious purposes in the absence of grounds for refusal specified in Article 8 of the same law.

Lease right

The most typical cases are when religious organizations rent premises for worship, religious meetings, cultural, educational and educational events, rental of transport, machinery and equipment. In addition, a religious organization itself has the right to lease property owned by it (as well as sublease property owned by it by lease, with the consent of the owner (lessor)). The income received (rent) must be spent on the statutory purposes of the religious organization. Restrictions of a canonical nature are not subject to legal regulation, but are independently observed by religious organizations, for example, the ban on renting out a consecrated religious building or property for religious purposes.

Right operational management

The right of operational management can be exercised by a religious institution created by a centralized religious organization in accordance with Art. 8 clause 6 of the Federal Law “On Freedom of Conscience and Religious Associations”.

According to the definition given in Art. 120 of the Civil Code of the Russian Federation, an institution is a non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature and financed in whole or in part by this owner. The property of the institution is assigned to it with the right of operational management in accordance with the Civil Code of the Russian Federation.

The institution is responsible for its obligations with the funds at its disposal. If they are insufficient, subsidiary liability for the obligations of the institution is borne by its owner (Article 120 of the Civil Code of the Russian Federation). Therefore, a centralized religious organization is not responsible only for the obligations of the local religious organizations that are part of it, but it is obliged to bear responsibility for the obligations of the religious institutions created by it. For example, a diocese, as a founder, will be responsible for the obligations of the monastery or clergy established by it. educational institution.

Acting as the founder of an institution of professional religious education, a monastery or other religious institution, a centralized religious organization provides it with property with the right of operational management, while remaining the owner of this property. The establishment in relation to the property assigned to them is carried out within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property, the right to own, use and dispose of it (Article 296 of the Civil Code of the Russian Federation).

The content of the right of operational management of property is significantly the same as the content of the right of ownership. An institution does not have the right to alienate or otherwise dispose of the property assigned to it and property acquired from funds allocated to it according to the estimate. If, in accordance with the constituent documents, an institution is granted the right to carry out income-generating activities, then the income received from such activities and the property acquired from these incomes come to the independent disposal of the institution and are accounted for on a separate balance sheet (Article 298 of the Civil Code of the Russian Federation). The owner of property - the founder of a religious institution has the right to confiscate from him excess, unused or misused property and dispose of it at his own discretion (Article 296 of the Civil Code of the Russian Federation).

Features of types of rights to land plots

The current Land Code of the Russian Federation establishes that when providing religious organizations with land plots that are in state or municipal ownership, the type of right to the land plot is predetermined by the type of its right to buildings, structures, structures located on this plot.

In accordance with Art. 36 of the Land Code of the Russian Federation, religious organizations that have owned free of charge.

Religious organizations that, in accordance with Federal laws, have on the right of free use buildings, structures, structures for religious and charitable purposes, located on land plots in state or municipal ownership, these land plots are provided on the right of free fixed-term use for the period of free use of these buildings, structures, structures.

For construction buildings, structures, structures for religious and charitable purposes, religious organizations are provided with a land plot for free, fixed-term use for the duration of the construction of these buildings, structures, structures, according to Art. 30 of the Land Code of the Russian Federation. Upon completion of construction and after registration of ownership of the constructed object, a religious organization has the right to receive free into the property this land plot on the basis of Art. 36 of the Land Code of the Russian Federation.

A religious organization also has the opportunity to acquire ownership of a plot of land for a fee or receive as a gift a land plot from individuals or legal entities, as well as use it under a lease or gratuitous use agreement. For transactions of this kind carried out by religious organizations, no special rules have been established; they are carried out in accordance with general standards Civil Code of the Russian Federation and land legislation.

If a building in use or ownership of a religious organization is classified as an object of cultural heritage of the peoples of the Russian Federation (historical and cultural monuments), then it should be borne in mind that, in accordance with Art. 99 of the Land Code of the Russian Federation, the land on which the building is located belongs to the lands of historical and cultural significance. Lands of historical and cultural significance must be used strictly in accordance with their intended purpose; intended purpose activities are not permitted. (The Land Code, however, does not give an unambiguous answer to the question whether only the land occupied by the object, the adjacent territory, or secured territory monument (the latter can be significantly larger than a plot of land enclosed by a temple or monastery fence.))

The Land Code also establishes that religious organizations have the right to use agricultural lands for agricultural production (Article 78 of the Land Code of the Russian Federation).

Objects of property rights of religious organizations In accordance with Art. 21 Federal Law “On Freedom of Conscience...”, “religious organizations may own buildings, land plots, objects of production, social, charitable, cultural, educational and other purposes, religious items, funds and other property necessary to ensure their activities , including those classified as historical and cultural monuments.

Religious organizations have the right of ownership of property acquired or created by them at their own expense, donated by citizens, legal entities, transferred to religious organizations by the state, or acquired by other means that do not contradict the legislation of the Russian Federation.

The transfer, in accordance with the established procedure, into the ownership of religious organizations of religious buildings and structures with associated land plots and other property for religious purposes that is in state or municipal ownership is carried out free of charge.

Religious organizations may have property rights abroad.”

Religious associations is a voluntary association of citizens of the Russian Federation, other persons, permanently and legally living on the territory of the Russian Federation, formed for the purpose of joint professing and spreading the faith and having the following characteristics corresponding to this purpose:

Religion;
- performance of divine services, other religious rites and ceremonies;
- teaching religion and religious education of its followers.

Types of religious associations

Religious associations can be created in the form of:

Religious groups and
- religious organizations

Religious group is a voluntary association of citizens formed for the purpose of jointly professing and spreading the faith, carrying out activities without state registration and acquiring the legal capacity of a legal entity.

Religious organization is a voluntary association of citizens of the Russian Federation and other persons permanently and legally residing on the territory of the Russian Federation, formed for the purpose of jointly professing and spreading the faith and registered as a legal entity in the manner prescribed by law.

Religious organizations, depending on the territorial scope of their activities, are divided into

Local and
- centralized.

A local religious organization is a religious organization consisting

Of at least ten participants,
- have reached the age of eighteen years and
- permanently residing in the same area or in the same urban or rural settlement.

A centralized religious organization is a religious organization consisting, in accordance with its charter, of at least three local religious organizations. In Russia, no religion can be established as state or compulsory, since the Russian Federation is a secular state. In Russia, religious associations are separated from the state and are equal before the law.

In accordance with the constitutional principle of separation of religious associations from the state, the latter:

a) Does not interfere in a citizen’s determination of his attitude to religion and religious affiliation, in the upbringing of children by parents or persons replacing them, in accordance with their convictions and taking into account the child’s right to freedom of conscience and freedom of religion;

b) does not interfere with the activities of religious associations if it does not contradict this Federal Law;

c) ensures the secular nature of education in state and municipal educational institutions.

In accordance with the constitutional principle of separation of religious associations from the state, a religious association:

a) is created and operates in accordance with its own hierarchical and institutional structure;

b) does not perform the functions of government bodies, other government agencies, government agencies and local governments;

c) does not participate in elections to state authorities and local self-government bodies;

Religious organization a voluntary association of citizens of the Russian Federation or other persons permanently and legally residing on the territory of the Russian Federation, formed by them, is recognized for the purpose of joint professing and spreading the faith and registered in accordance with the procedure established by law as a legal entity (local religious organization), an association of these organizations (centralized religious organization), as well as an organization created by the said association in accordance with the law on freedom of conscience and on religious associations for the purpose of joint professing and spreading the faith and (or) a governing or coordinating body created by the said association.

Legal status religious organizations determined the law “On Freedom of Conscience and Religious Associations”, as well as the Civil Code of the Russian Federation.

Religious organizations act in accordance with their charters And internal regulations , not contrary to the law. The procedure for the formation of bodies of a religious organization and their competence, the procedure for making decisions by these bodies, as well as the relationship between the religious organization and the persons included in its bodies are determined in accordance with the law on freedom of conscience and on religious associations, the charter of the religious organization and internal regulations (other internal documents).

Religious organization cannot be converted into a legal entity of a different organizational and legal form.

Local religious the organization is created in accordance with the law on freedom of conscience and on religious associations of no less than ten founding citizens (parishes, communities, monasteries, brotherhoods, missions, etc.)

Centralized religious organization - created by at least three local religious organizations or another centralized religious organization.

The constituent document of a religious organization is charter , approved her founders or centralized religious organization . The charter of a religious organization must contain information about its type, name and location, the subject and purposes of its activities, the composition, competence of its bodies and the procedure for their decision-making, the sources of its property, the directions of its use and the procedure for the distribution of property remaining after it. liquidation, as well as other information provided for by the law on freedom of conscience and religious associations.

The founder (founders) of a religious organization may perform the functions of the governing body or members of the collegial governing body of this religious organization in the manner established in accordance with the law on freedom of conscience and on religious associations by the charter of the religious organization and internal regulations.

Religious organizations are the owners property belonging to them, including property acquired or created by them at their own expense, as well as donated to religious organizations or acquired by them on other grounds provided by law.

For those belonging to religious organizations property for religious purposes cannot be foreclosed on according to the demands of their creditors. The list of such property is determined in the manner established by the law on freedom of conscience and on religious associations.

The founders of a religious organization do not retain property rights to the property transferred by them to this organization. The founders of religious organizations are not liable for the obligations of these organizations, and these organizations are not liable for the obligations of their founders.

Public law companies . ??? (you can just read it)

In paragraph 3 (a. 11) of Art. 50 of the Civil Code of the Russian Federation, among the organizational and legal forms in which non-profit organizations can be created, such a form as public law companies is indicated. However, neither in § 6. “Non-commercial corporate organizations", nor in § 7. "Non-profit unitary organizations" of Chapter 4 of the Civil Code of the Russian Federation does not contain such an organizational and legal form.

But on the website of the Ministry of Economic Development of Russia, a draft federal law “On public law companies in the Russian Federation and on introducing amendments to certain legislative acts Russian Federation".

In accordance with the Project, it is proposed to create public law companies in the Russian Federation, which will represent a new organizational and legal form of non-profit legal entities with exclusively state participation. The Draft contains rules for the establishment of such companies, requirements for the structure of management bodies, as well as for their activities, general rules investing temporarily available funds of such companies.

We also note that currently the state is involved in civil law relations both directly, for example through the public procurement system, and indirectly, as a participant or founder of legal entities. The most common in civil circulation are the following organizational and legal forms of legal entities with state participation:

State unitary enterprises;

Joint-stock companies, the controlling stake of which belongs to the state (in some cases, the state is the only participant in the joint-stock company);

State corporations;

State companies.

Currently in Russia there are seven state corporations and one state company. It is assumed that these legal entities must be either transformed, reorganized, or liquidated (see Schedule of activities for the transformation and liquidation of state corporations and state company"Avtodor", approved by the Chairman of the Government of the Russian Federation on December 29, 2010 N 6793 p-13).

The authors of the Project propose to make the transformation into public companies one of the possible forms of reorganization of state-owned companies and state corporations. It can also be transformed into a public company Joint-Stock Company, 100 percent of the shares of which belong to the state. However, the Draft does not directly indicate that public companies must necessarily replace state corporations and state-owned companies. On the contrary, it contains amendments to many federal laws, allowing us to conclude that public legal entities will be able to function alongside state corporations and state-owned companies. For example, it is proposed to make changes to Labor Code Russian Federation, Budget Code of the Russian Federation and other regulatory legal acts

Public law companies is planned to be classified as unitary non-profit organizations, which, on the one hand, will endowed with public legal functions and powers, and on the other hand, they will be participants in civil legal relations with other legal entities and individual entrepreneurs. However, in their activities such companies will not pursue profit-making purposes and will have the right to carry out income-generating activities insofar as this serves the achievement of the goals for which they were created. Such goals may be holding state policy , rendering public services, management of state property, implementation of special important projects and government programs, etc.

Create such legal entities will either on the basis of law , or based on the Government decision RF.

Companies created on the basis of law , will not have constituent documents . Their legal status will be determined by the relevant law. Companies created on the basis Government decisions RF, will have charter , which will indicate what activities and in what order this company has the right to carry out.

Supreme governing body public company will become supervisory board which will approved by the Government RF. The Supervisory Board will carry out general management company. For example, it is proposed to give him the authority to approve the company’s strategy, annual reports, the procedure for using the company’s income, etc. Current activities the company will implement it CEO and board (if the decision to create a company provides for the latter).

In general, the structure and rules of operation of public law companies will not differ significantly from existing state-owned companies and state corporations. A separate redistribution of powers between companies and the state is envisaged. For example, the Draft provides that public law companies will not have the right to independently create and liquidate branches, as well as open and close representative offices. These decisions will be made by the Government of the Russian Federation.

Public companies are expected to plan your activities at least three years in advance , for which a special document will be approved - the company’s business strategy, which will be publicly available on the company’s website.

It is proposed to maintain the rules for investing temporarily available funds for public companies in the same form as currently provided for state corporations and state-owned companies. At the moment, the Government of the Russian Federation determines the list of permitted investment objects, the procedure for making transactions, the procedure for monitoring investment, the rules for publishing reports on investment results (clause 3.2, article 7.1 and clause 9, article 7.2 of the Federal Law of January 12, 1996 N 7- Federal Law "On Non-Profit Organizations").

The above bill was adopted by the State. Duma in the first reading.

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