Civil Code, N 51-FZ | Art. 34 Civil Code of the Russian Federation

Article 34 of the Civil Code of the Russian Federation. Guardianship and trusteeship authorities ( current edition)

1. The guardianship and trusteeship bodies are the executive authorities of the subject Russian Federation. Guardianship and trusteeship bodies are also local government bodies if the law of a constituent entity of the Russian Federation vests them with powers of guardianship and trusteeship in accordance with federal laws.

Issues of the organization and activities of guardianship and trusteeship bodies for the implementation of guardianship and trusteeship of children left without parental care are determined by this Code, the Family Code of the Russian Federation, Federal Law of October 6, 1999 N 184-FZ "On general principles organizations of legislative (representative) and executive bodies state authorities of the constituent entities of the Russian Federation", Federal Law of October 6, 2003 N 131-FZ "On the general principles of the organization of local self-government in the Russian Federation", other federal laws and laws of the constituent entities of the Russian Federation.

The powers of the guardianship and trusteeship body in relation to the ward are vested in the body that established the guardianship or trusteeship. When the place of residence of the ward changes, the powers of the guardianship and trusteeship body are assigned to the guardianship and trusteeship body at the new place of residence of the ward in the manner prescribed by the Federal Law “On Guardianship and Trusteeship”.

2. The court is obliged, within three days from the date of entry into legal force of the decision to recognize a citizen as incompetent or to limit his legal capacity, to inform the guardianship and trusteeship authority at the place of residence of such a citizen about this in order to establish guardianship or trusteeship over him.

3. The guardianship and trusteeship authority at the place of residence of wards exercises supervision over the activities of their guardians and trustees.

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Commentary to Art. 34 Civil Code of the Russian Federation

Judicial practice under Article 34 of the Civil Code of the Russian Federation:

Decision of the Supreme Court: Determination N 86-G09-12, Judicial Collegium for Civil Cases, cassation
Article 7 of the said Law amends Article 34 of the Civil Code of the Russian Federation. According to Article 34 of the Civil Code of the Russian Federation (as amended by Federal Law No. 258-FZ of December 29, 2006), the guardianship and trusteeship authorities are the executive authorities of the constituent entity of the Russian Federation...
Decision of the Supreme Court: Determination N 91-G09-2, Judicial Collegium for Civil Cases, cassation
According to Article 31 of the Civil Code of the Russian Federation, guardianship and trusteeship of minors are established to protect their rights and interests, as well as for educational purposes. In accordance with Article 34 of the Civil Code of the Russian Federation, guardianship and trusteeship bodies are the executive authorities of the constituent entity of the Russian Federation, which supervise the activities of guardians and trustees...
Decision of the Supreme Court: Determination N 302-ES16-14360, Judicial Collegium for Economic Disputes, cassation
The calculation of the amount of the fine to be collected has been verified by the courts and found to be correct. In refusing to satisfy the request for a penalty, the court of first instance proceeded from the fact that the provisions of Article 34 of Law No. 44-FZ exclude the possibility of being held liable in the form of a penalty for improper performance or failure to fulfill an obligation...

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New edition of Art. 34 Civil Code of the Russian Federation

1. The guardianship and trusteeship bodies are the executive authorities of the constituent entity of the Russian Federation. Guardianship and trusteeship bodies are also local government bodies if the law of a constituent entity of the Russian Federation vests them with powers of guardianship and trusteeship in accordance with federal laws.

Issues of the organization and activities of guardianship and trusteeship bodies for the implementation of guardianship and trusteeship of children left without parental care are determined by this Code, the Family Code of the Russian Federation, Federal Law of October 6, 1999 N 184-FZ "On the general principles of organizing legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation", Federal Law of October 6, 2003 N 131-FZ "On the general principles of the organization of local self-government in the Russian Federation", other federal laws and laws of the constituent entities of the Russian Federation.

3. The guardianship and trusteeship authority at the place of residence of wards exercises supervision over the activities of their guardians and trustees.

Commentary on Article 34 of the Civil Code of the Russian Federation

The comment is being finalized and is temporarily unavailable.

Another comment on Art. 34 Civil Code of the Russian Federation

Guardianship and trusteeship are the responsibility of local governments. In order to timely establish guardianship and trusteeship, the commented article obliges the court to inform these bodies about the decision made to recognize a citizen as incompetent or to limit his legal capacity. The obligation to report children left without parental care is imposed in accordance with Art. 122 of the Code for officials of preschool educational, general education, medical and other institutions. The head of the district (city, district in a city) administration at the place of residence of the person subject to guardianship or trusteeship, or at the place of residence of the guardian (trustee) makes a decision to establish guardianship (trusteeship) on the basis of a corresponding court decision and issues a resolution appointing a specific citizen as a guardian ( trustee).

The performance of other functions in the field of guardianship and trusteeship falls within the competence of the relevant departments (departments), which are structural divisions local government bodies: in relation to minors - to departments (administrations) of public education; in relation to persons recognized as incompetent due to a mental disorder - to health care departments (administrations) or departments (bodies) social protection population.

The guardianship and trusteeship body selects persons who can be appointed as guardians (trustees), exercises supervision over the activities of guardians and trustees, which involves mandatory and systematic monitoring of the living conditions of the wards, the performance of the guardians (trustees) of their duties, including the management of the ward’s property, and also in necessary cases provides them with assistance and assistance, considers complaints about improper actions of guardians and trustees, takes appropriate measures if circumstances are detected that negatively affect the ward, etc. The procedure and forms of supervision are determined taking into account the characteristics of each type of guardianship or trusteeship: over the legally incompetent, minors, etc.

Issues of the organization and activities of guardianship and trusteeship bodies for the implementation of guardianship and trusteeship of children left without parental care are determined by this Code, the Family Code of the Russian Federation, Federal Law of October 6, 1999 N 184-FZ "On the general principles of organizing legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation", Federal Law of October 6, 2003 N 131-FZ "On the general principles of the organization of local self-government in the Russian Federation", other federal laws and laws of the constituent entities of the Russian Federation.

The powers of the guardianship and trusteeship body in relation to the ward are vested in the body that established the guardianship or trusteeship.

3. The guardianship and trusteeship authority at the place of residence of wards exercises supervision over the activities of their guardians and trustees.

Commentary to Art. 34 Civil Code of the Russian Federation

1. The commented article is devoted to guardianship and trusteeship bodies - first to local government bodies, and from January 1, 2008 - to executive authorities of a constituent entity of the Russian Federation (paragraph 1, paragraph 1). These bodies establish guardianship and trusteeship, resolve related issues (see paragraph 3 of Article 34, paragraph 2 of Article 37, Articles 38, 39 of the Civil Code), as well as other issues within their competence by law in to protect the rights and interests individual categories citizens (see paragraph 2, paragraph 1, article 28 in connection with paragraph 2, article 37, article 41 of the Civil Code) (for more information about these bodies, their tasks and powers, see articles 6 - 8 of the Guardianship Law ). In para. 2 p. 1 art. 34 formulates the triune principle of the integrity of the system of guardianship and trusteeship bodies, the territoriality of their activities and continuity in the implementation of functions: the powers of the guardianship and trusteeship body are exercised by the body that established the guardianship (trusteeship), and in case of a change of place of residence of the ward - by the body at the new place of residence of the ward in accordance with Art. 9 of the Guardianship Law. Along with the guardianship and trusteeship authorities, local self-government bodies of the settlement may participate in the implementation of guardianship and trusteeship activities (Article 14.1 of the Law on Local Self-Government).

2. Guardianship and trusteeship are established if there is a court decision declaring a citizen incompetent or limiting his legal capacity, and in relation to minors - the circumstances specified in the law (clause 3 of article 31 of the Civil Code, article 62 of the Civil Code, article 13 of the Guardianship Law) . Rule clause 2 art. 34 applies only to cases of establishing guardianship and trusteeship by court decision. It formulates the obligation of the court that made this decision - within 3 days from the time it entered into legal force, to inform the guardianship and trusteeship authority at the place of residence of the incapacitated (partially capable) citizen about this in order to establish guardianship (trusteeship) over him. The courts are obliged to promptly interact with the guardianship and trusteeship authorities, and the latter (as well as other bodies, such as the prosecutor's office) have the right to demand the fulfillment of this obligation in relation to the courts. However, regardless of this, the guardianship and trusteeship authorities must establish guardianship (trusteeship) within one month from the moment they became aware of the need for this, and also exercise supervision over the activities of the appointed guardians and trustees (clause 3 of article 34, clause 1 Article 35 Civil Code).

Judicial practice under Article 34 of the Civil Code of the Russian Federation

Ruling of the Supreme Court of the Russian Federation dated 03/09/2017 N 304-ES17-230 in case N A46-5170/2015

As a result of the incorrect application of articles, Federal Law No. 14, articles, and the Civil Code of the Russian Federation, the courts came to erroneous conclusions about the expiration of the deadline limitation period.

According to the applicant, the courts incorrectly applied the provisions of Part 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation and did not take into account that the parties in case No. A46-5170\2015 and in case No. A46-4592\2015 are different.

Ruling of the Supreme Court of the Russian Federation dated April 23, 2018 N 308-KG18-42 in case N A32-20523/2016

When resolving a dispute, the courts, guided by the provisions of articles of the Civil Code of the Russian Federation, articles 39.3, 78 of the Land Code of the Russian Federation, article 10 of the Federal Law of July 24, 2002 N 101-FZ "On the turnover of agricultural land", the Law of the Krasnodar Territory of November 5, 2002 N 532-KZ "On the fundamentals of regulation of land relations in the Krasnodar Territory", establishing that the requested land are identical to the site that is the subject of the original lease agreement, are used under the lease agreement by both the company and its legal predecessor in accordance with intended purpose since 1996, that is, more than three years, given that the department has not provided evidence confirming the need to apply the provisions of paragraph 17 of Article 39.16 of the Land Code of the Russian Federation to disputed legal relations, the department rightfully came to the conclusion that there are grounds to satisfy the stated requirements.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 06/05/2018 N 5-КГ18-39

When the place of residence of the ward changes, the powers of the guardianship and trusteeship body are assigned to the guardianship and trusteeship body at the new place of residence of the ward in the manner prescribed by the Federal Law “On Guardianship and Trusteeship”.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 26, 2018 N 5-КГ18-145

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated August 28, 2018 N 5-КГ18-168
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated August 21, 2018 N 5-КГ18-170

By virtue of the provisions of paragraph three of paragraph 1 of the article of the Civil Code of the Russian Federation, the powers of the guardianship and trusteeship body in relation to the ward are vested in the body that established guardianship or trusteeship. When the place of residence of the ward changes, the powers of the guardianship and trusteeship body are assigned to the guardianship and trusteeship body at the new place of residence of the ward in the manner prescribed by the Federal Law “On Guardianship and Trusteeship”.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 18, 2018 N 5-КГ18-196

In accordance with the provisions of paragraph three of paragraph 1 of article of the Civil Code of the Russian Federation, the powers of the guardianship and trusteeship body in relation to the ward are vested in the body that established guardianship or trusteeship. When the ward’s place of residence changes, the powers of the guardianship and trusteeship authority are assigned to the guardianship and trusteeship authority at the new place of residence of the ward in the manner prescribed by Federal Law No. 48-FZ of April 24, 2008 “On Guardianship and Trusteeship”.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 18, 2019 N 18-КГ19-25

As the Plenum explained Supreme Court of the Russian Federation in paragraph 3 of Resolution No. 44 of November 14, 2017 “On the practice of courts applying legislation when resolving disputes related to the protection of the rights and legitimate interests of a child in the event of an immediate threat to his life or health, as well as when limiting or depriving parental rights” courts should keep in mind that based on the provisions of paragraph 1 of Article of the Civil Code of the Russian Federation, paragraph 2 of Article 121 of the RF IC, as well as Article 6 of the Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Trusteeship”, the conclusion of the guardianship and trusteeship body must be signed by someone authorized to do so official guardianship and trusteeship body of a constituent entity of the Russian Federation or a local government body (if the law of a constituent entity of the Russian Federation local government bodies are vested with powers of guardianship and trusteeship in accordance with federal laws).

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 09.09.2019 N 66-КГ19-8

Resolving the dispute and satisfying the claims of Grishina A.V. on the recovery from the state educational institution of the Irkutsk region for orphans and children left without parental care "Boarding School N..." of the lost social pension in the event of the loss of a breadwinner for the period from October 2004 to December 31, 2011, the court of first instance applied to the disputed relations the provisions of articles , , of the Civil Code of the Russian Federation, articles 155.2, 155.3 of the Family Code of the Russian Federation and articles 6, 7 of the Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Trusteeship” and proceeded from the fact that the boarding school as an institution, under the care of which Grishina A.V. was from September 1, 2003 to August 31, 2015, the duties to protect her rights were improperly fulfilled, since from 2003 to 2008 the institution did not work to establish the whereabouts of the minor’s mother, the institution sent requests for location and search Grishina Ya.I., did not take measures to obtain answers to them, thereby did not show a sufficient degree of care and attention to the minor Grishina A.V. According to the court of first instance, such inaction of the boarding school was the reason for the appointment of A.V. Grishina. social pension for the loss of a breadwinner (mother Grishina Ya.I., who died in 2004) only in 2012 and entailed for Grishina A.V. losses in the form of lost social pension in the event of the loss of a breadwinner.

The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. Civil law norms contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially proceeded in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. Due to the huge volume of material that required inclusion in the Civil Code, it was decided to adopt it in parts.

The first part of the Civil Code of the Russian Federation, entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (Section I “General Provisions”, Section II “Property Rights and Other Property Rights”, section III « a common part law of obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (about the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law ( various types property and property rights), transactions, representation, limitation periods, property rights, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition of part one, came into force on March 1, 1996. It is entirely devoted to section IV of the code “ Selected species obligations." Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of rules on individual obligations and contracts, obligations resulting from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes section V “Inheritance Law” and section VI “Private International Law”. Compared to the legislation in force before the entry into force of Part Three of the Civil Code of the Russian Federation on March 1, 2002, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the range of objects that can be transferred in the order of hereditary succession; Detailed rules have been introduced regarding the protection and management of inheritance. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on the qualification of legal concepts when determining the applicable law, on the application of the law of a country with plurality legal systems, on reciprocity, return, establishment of the content of norms of foreign law.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to the results of intellectual activity and means of individualization.” Its structure includes general provisions- norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive application practice, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment claims and transfer of debt, pledge, etc., which necessitated the need to introduce a number of systemic changes to the Civil Code of the Russian Federation. As noted by one of the initiators of making such changes, President of the Russian Federation D.A. Medvedev, “The existing system does not need to be restructured, fundamentally changed... but to be improved, to reveal its potential and to develop implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of property, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary..."<1>.

On July 18, 2008, Decree of the President of the Russian Federation No. 1108 “On improving the Civil Code of the Russian Federation” was issued, which set the task of developing a concept for the development of civil legislation of the Russian Federation. October 7, 2009 The concept was approved by the decision of the Council for Codification and Improvement Russian legislation and signed by the President of the Russian Federation.

________
<1>See: Medvedev D.A. Civil Code of Russia - its role in development market economy and creation rule of law// Bulletin of civil law. 2007. N 2. T.7.

Official text:

Article 34. Guardianship and trusteeship bodies

Issues of the organization and activities of guardianship and trusteeship bodies for the implementation of guardianship and trusteeship of children left without parental care are determined by this Code, the Family Code of the Russian Federation, Federal Law of October 6, 1999 N 184-FZ "On the general principles of organizing legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation", Federal Law of October 6, 2003 N 131-FZ "On the general principles of the organization of local self-government in the Russian Federation", other federal laws and laws of the constituent entities of the Russian Federation.

The powers of the guardianship and trusteeship body in relation to the ward are vested in the body that established the guardianship or trusteeship. When the place of residence of the ward changes, the powers of the guardianship and trusteeship authority are assigned to the guardianship and trusteeship authority at the new place of residence of the ward in the manner prescribed by the Federal “Law” “On Guardianship and Trusteeship”.

3. The guardianship and trusteeship authority at the place of residence of wards exercises supervision over the activities of their guardians and trustees.

Lawyer's comment:

The executive authorities of a constituent entity of the Russian Federation include guardianship and trusteeship authorities. Regulations relating to guardianship and trusteeship (appointment of a guardian or trustee, his release, removal from office and other issues), chapter local administration carries out alone. Its resolution is binding on all legal entities, individuals, public organizations, like any other resolution of an administrative body. It does not matter where it is taken out. It is valid throughout the Russian Federation and does not need confirmation.

In their work, the guardianship and trusteeship authorities are guided by the Constitution, the Civil Code, the Family Code, the Federal Law “On Guardianship and Trusteeship”, and others Federal Laws, as well as laws and other regulatory legal acts both at the federal level and adopted by the constituent entities of the Russian Federation within the limits of their competence. Instructional and methodological recommendations on issues of guardianship and trusteeship and other departmental acts play an important role in the law enforcement activities of guardianship and trusteeship authorities.

To establish guardianship (trusteeship), the guardianship and trusteeship authorities must have information about the need for their participation in providing assistance to an incompetent or partially capable person. The source of this information can be signals from social protection authorities, human rights authorities, police, civil registry offices, housing authorities, courts, prosecutors, statements from neighbors, relatives and simply strangers. These signals are immediately checked by the guardianship and trusteeship authorities at the location of the citizen in need of their help for adoption necessary measures protection.

The degree of obligatory information about incapacitated or partially capable citizens in distress depends on the nature of the activities of the organizations that received the relevant information, the presence or absence of family ties between the citizen and the person in need of assistance from the state. For most organizations that in one way or another protect the rights of citizens, informing the guardianship and trusteeship authorities about the incident is an obligatory part of their work, their professional duty. A special place belongs to the court, which decides the issue of recognizing a citizen as fully or partially capable.

Guardianship and trusteeship authorities are obliged to exercise supervision (control) over the activities of guardians (trustees), as persons authorized by the state to take care of those in need of their help. Such supervision is mandatory and applies to all categories of incapacitated persons. By implementing it, the guardianship and trusteeship authorities thereby minimize the possibility of an indifferent attitude of the guardian (trustee) towards his ward. Moreover, each time we are talking about a constant, regular and systematic examination of the living conditions of the ward.

When monitoring the activities of a guardian of a completely incapacitated person, attention is paid to measures for physical care for him, providing him medical care. When guarding a person with limited legal capacity, it is important to know whether such a measure as guardianship is justified. Most often, supervision over the conditions of education of the ward is entrusted to teachers and educators. Control over the activities of the guardian (trustee) is combined with various types of assistance (in organizing treatment, deciding housing problem, improvement financial situation and so on.).