The Influence of Legal Fictions on the Vindication of Escheat in the Light of the Position of the Constitutional Court of the Russian Federation
The Constitutional Court of the Russian Federation in its decision of June 22, 2017, No. 16-P, found unconstitutional art. 302 of the Civil Code of the Russian Federation insofar as it allows, with the imprudent attitude of a public legal entity to formalize its rights to a fictitious apartment, to reclaim it from the possession of a bona fide purchaser. Determining the features of vindication of inheritance is the goal of this scientific research, which requires the solution of the following problems: 1) the evaluation of the specifics of the purchase of escheat and the risks of unreasonable inaction of state bodies when registering such an inheritance; 2) the correlation of the will of the public owner to the transfer of his property and Rosreestr’s acts creating the appearance of the lawfulness of private transactions; 3) analysis of the balance of interests of a public vindicate and citizens who conscientiously acquire a dwelling; 4) revealing the conditions for limiting the vindication of the inheritance, which was not in the possession of the heir at the time of the encroachment. The methodology of legal modeling is used, which allows investigating surrogate legal facts and conditions for the implementation of a hereditary claim of a vindication nature. The establishment by the Constitutional Court of the Russian Federation of a priority in protecting the citizen’s right to housing is quite justifiable, but Moscow’s inaction when issuing escheat property and the creation by Roseestr visibility of the rights of third parties to such property does not mean the disposal of the thing from the possession of the public owner at his will, especially if the property was not in its actual domination. On the basis of the civil logic this entails special conditions for demanding a «lying» inheritance: the court establishes only dishonesty or the gratuitousness of the acquisition. Fiction retrospective acquisition of ownership of the inheritance on the day of its opening does not apply to actual occupancy.