Chap2-Soviet Legal System PROPERTYLAW

Soviet jurists base their thinking concerning property on the Communist Manifesto of 1849. Twenty even years of a!ministrative e"perience inc#u!ing the Secon! $or#! $ar have not cause! them to change their approach. They regar! the Soviet socia# an! economic structure as uni%ue because of its property base. &t wi## be the  purpose of this paper to set forth the major features of the Soviet concept of property #aw as a gui!e to #awyers who seek to un!erstan! the Soviet 'nion in terms of concepts with which they are fami#iar. POLITICAL THEORY ()aw is po#itics*( in the wor!s of )enin.+ Soviet jurists who have s hape! the #aws of their country have borne this instruction in min! at a## times. ,rom the ear#iest !ays of the revo#ution* Soviet #aw has been !eve#ope! as a too#+of the po#itica# scientist. -o #aw #ecture in a Soviet #aw schoo# an! no #aw te"tbook fai#s to make the point c#ear. Soviet jurists prou!#y sever themse#ves from the schoo# of (natura# #aw( jurispru!ence. &n fact* they criticie the teachings of the (natura# #aw( jurists as !esigne! to confuse the issue which they be#ieve !ear* name#y that a## #aw at a## times has been !eve#ope! as a too# of po#itics* $hether it be the po#itics of the s#aveowner* the feu!a# #or!* the bourgeoisie* or the pro#etariat. )aw has tra!itiona##y been concerne! with property concepts. Soviet jurists fin! this entire#y natura#. They  be#ieve that #aw was not !eve#ope! unti# society became !ivi!e! into c#asses* an! c#asses !i! not appear unti# the concept of private property grew out of triba# society to cause the break!own of the o#! triba# constitutions an! the emergence of the first state. )aw* in accor!ance with their un!erstan!ing* became the too# of the propertie! c#ass* which create! an! contro##e! the state* an! it was shape! to further the interests of the propertie! c#ass in  power. Mar" an! /nge#s* /nge#s* in ana#ying ana#ying the society of the 0&0 Century Century** in which they mature!* mature!* came to the conc#usion that the source of power of the hourgeosie an! therefore the base of the capita#ist system of economy* on which the bourgeoisie thrive!* #ay in the private ownership of the source of #arge sca#e wea#th* name#y the means of pro!uctionthe #an!* factories* forests* mines* #ivestock an! means of communication an! tra!e.4 They !eci!e! !eci!e! that the on#y way to oust the bourgeoisie bourgeoisie from its position position of power was to !eprive !eprive it of the economic economic  base of its power. They They foun! this economic base thorough#y protecte! by b y #aw* an! they a#so foun! that this #aw was firm#y estab#ishe! in the min!s of the pub#ic as t he on#y one possib#e in a progressive* free society. Mar" an! /nge#s transmitte! a basic gui!ing princip#e to the revo#utionaries who were to fo##ow. They a!vise! that private ownership in the means of pro!uction wou#! have to be !estroye! before a new society cou#! be !eve#ope! the new society to be known u#timate#y as communism.This instruction !i! not mean the abo#ition of private owners ownership hip of a## proper property ty.. 2s Mar" Mar" an! /nge#s /nge#s state! state! specif specifica ica##y ##y in their their Commu Communist nist Manifes Manifesto* to* (The (The !istinguish !istinguishing ing feature of communism communism is not the abo#ition abo#ition of property property genera##y* genera##y* but the abo#ition of bourgeoi bourgeoiss  property.(  property.( The revo#utiona revo#utionaries ries in 3ussia* 3ussia* as we## as their fe##ows fe##ows in ungary ungary** 5ermany an! u#timate#y u#timate#y China* China* remembere! the teachings of Mar" an! /nge#s when they ha! a chance to seie power after the #ast war. 6n#y those in 3ussia succee!e! in retaining power an! in carrying out the program to the fu##est e"tent. They now #ay their success* an! the !efeat of their co##eagues in other countries* in consi!erab#e measure to the manner in which the property prob#em was han!#e!. They be#ieve that some revo#utionaries went too far* as in ungary where the peasantry was antagonie!* whi#e others !i! not go far enough. &n contrast* they fin! that )enin kept his han! on the pu#se in 3ussia an! provi!e! just the right pressure to achieve the goa# !esire!. The formu#a was comparative#y simp#e!estroy private ownership in the means of pro!uction* but !o not e#iminate private ownership in consumers+ goo!s. The !etai# re%uire! to work out the formu#a was not so simp#e. &t invo#ve! hastening forwar! at some times* an! retreating at others* so as to keep the pressure even !uring the forma formativ tivee stage. stage. 3ussia was #arge#y #arge#y an agricu agricu#tu #tura# ra# country country at the time of its revo#u revo#ution tion.. &t was not the in!ustria#ie! state in which Mar"ists ha! e"pecte! their opportunity to come. &ts peop#e were a#most feu!a# in their socia# customs an! e!ucation. &n spite of this fact* the socia# an! economic co##apse co##apse fo##owing the #ast war  was so severe that Mar"ian #ea!ers saw their opportunity. Through reso#ute #ea!ership they seie! power an! retaine! it in the face of e"tensive opposition* from the home#an! an! from abroa!. Their strugg#e can be stu!ie! in terms of their #aws. STEPS TOWARDS SOCIALISM Soviet jurists* imme!iate#y after seiing power* began to inaugurate their program of property #aw. They !i! not hope for the coming of communism in one swoop. They anticipate! a #ong preparatory perio! which wou#! #ea! to socia#ism* as the first stage of communism* an! they were agree! that !uring this perio! the* state shou#! be recreate!. as the !ictatorship of the pro#etariat. -o one was in agreement as to how #ong the iron han! of the !ictatorship wou#! be necessary* or as to the manner in which it wou#! u#timate#y be re#a"e!. 2## were in agreement* however* on the necessit y for its e"istence. 7rivate ownership of #an! was on the first !ay+s agen!a of the Secon! 2##3ussian Congress of Soviets* which ha! seie! power when the $inter 7a#ace ha! been storme! an! erensky+s 7rovisiona# 5overnment ha!

 been capture! an! !epose!. &n the !ecree of 6ctober 8* 191:*: rights to #arge #an!e! property were annu##e! without in!emnification* an! the #an! p#ace! at the !isposa# of regiona# agricu#tura# committees an! !istrict Soviets unti# the Constituent 2ssemb#y shou#! act. The peop#e of 3ussia ha! on#y just finishe! preparing to vote in their first tru#y !emocratic e#ection for !e#egates to the Constituent 2ssemb#y* which ha! been promise! at the time of the Tsar+s ab!ication on March 2, 191:.8 The !e#egates were to assemb#e short#y from an e#ectorate which containe! a #arge prepon!erance of strength in the Socia#ist Socia#ist 3evo#ution 3evo#utionary ary 7arty* 7arty* which he#! to much #ess farreach farreaching ing revo#ution revo#utionary ary princip#es princip#es than the ;o#she ;o#shevik viks. s. The Congre Congress ss of Soviet Sovietss bore bore this this fact fact in min!. min!. The The !ecree !ecree specif specifica ica##y ##y e"empte e"empte! ! the sma## sma## #an!ho#!ings of peasants from confiscation. )enin e"p#aine! to the Congress that many ;o#sheviks !i! not think  the !ecree went far enough* but he urge! its accep tance as the farthest a!vance possib#e at the time* in view of  the peasant menta#it y. -ot unti# the Constituent 2ssemb#y ha! fina##y met an! ha! been !isso#ve! by a reso#ute an! powerfu# minority of ;o#sheviks was it possib#e to a!opt the comp#ete program of #an! confiscation. 6n ,ebruary 19* 1918*1< the !ecree was issue! abo#ishing for a## time a## property rights in #an!* subsoi#* waters* forests an! #ivesto #ivestock* ck* an! transf transferr erring ing it without without !irect !irect or in!ire in!irect ct in!emn in!emnifi ificat cation ion to the use of the who#e( who#e( toi#in toi#ing g  popu#ation. This princip#e has has been retaine! as basic in Soviet #aw to +the present !ay* !ay* an! has been incorporate! as 2rtic#e = of the 19>= Constitution of the '.S.S.3. 6n#y the use of the #an! is now subject to property rights* as wi## be set forth be#ow. 7roperty in fi"tures upon the #an! remaine! intact for some time after the #an! was nationa#ie!. &n fact* the separation of ownership of #an! an! the bui#!ings upon it has never presente! a prob#em to Soviet jurists. -ot unti# 2ugust  This was* in effect* a !ee! of use* subject to such #aws contro##ing the use as the state might enact. The right of use was not #imite! in e"tent of time but was a grant in  perpetuity*  perpetuity* or unti# the use was terminate! in accor!ance with the regu#ar ru#es of the co!e. Shou#! a person temporari#y #eave his home area* the use of the #an! was reserve! for him un!er this act. These ru#es !iffere! in accor!ance with the type of work he went away to !o. The right to use conveys the right to erect structures an! to p#ant such crops as are thought suitab#e*a#though a tenant may not !o anything so ra!ica# as to amount to waste in the eyes of the government. ;ur!en of proof is on the government to prove waste* for there is a presumption that the tenant is operating within his his rights. 'se of the #anf #anf must not be carrie! to such an e"tent e"tent that it amounts amounts to a nuisance* an! neighbors may sue in court to abate a nuisance* an! to remove the tenant if he refuses. Servitu!es upon the right to use are a#so known* but they must be enumerate! in the act concerning the use of the #an!. The #oca# #an! organs !eci!e what easements sha## e"ist when the y issue the !ocument of use* an! these easements which amount* to easements by necessity pass to persons who subse%uent#y obtain the right to use by virtue of #ater !istributions. The ac%uisition of +a right by prescription is* in princip#e* forbi!!en by Soviet #aw* but this wou#! not prevent a neighbor from from proving before a #an! organ organ the nee! for an easement* as evi!ence! by #ong unconteste! use. To estab#ish right to peacefu# use* the person in possession might bring a (possessor+s suit( before the #an! commission. This #atter* without e"amining the motives of the person vio#ating peacefu# possession was re%uire! to or!er return to the  status quo ante, even though the trespassr may have entere! into possession by

force of arms* an! might or!er the payment of any !amages suffere! by the person !isturbe!.This same form of  action might be avai#e! of to estab#ish the right to peacefu# use of bui#!ings upon the #an!. 2#though 2#though in 19: the form of tenancy tenancy out#ine! out#ine! above was sti## the basic form of #an! tenancy tenancy** the situation situation change! ra!ica##y ra!ica##y after that !ate* an! especia##y so in the ear#y 19> 1.4 The first charter of 19>< was superse!e! in 19>B by a new mo!e# charter.&t is un!er this charter that a#most the entire fun! of stateowne! agricu#tura# #an! was being operate! on the eve of the war. &n conse%uence* the chief agrarian #aw has become the Mo!e# Charter of 19>B. 3epeating once again the major princip#e of Soviet agrarian #aw that para mount tit#e to #an! is in the state*B the mo!e# charter sets forth the ru#es governing the use of #an! by agricu#tura# co=perative associations. The Mo!e# Charter states that the association sha## be assigne! the use of a## of the sma## p#ots of #an! former#y ti##e! by the  persons who become members . $hen the #ocation of a## of these sma## p#ots is !etermine!* they are poo#e!*  boun!aries between them are remove!* an! the use of any an y p#ots of #an! #ying # ying between the former strips of this  poo#e! #an! is ac%uire! by state organs in e"change for other #an! an! a!!e! to the mass set asi!e for the association. This #an! is then !efine! an! new boun!aries se* an! the entire tract !escribe! in a !ocument transferring to the association the use of the #an! in perpetuity. This !ocument is ca##e! an (2ct( an! is issue! by the /"ecutive Committee of the region in which the co=perative association has been organie!. The (2ct+s( forma# appearance* boun! between re!* go#! #ettere! covers over a foot an! a ha#f in height* invites respect. 2#though the use of new #an! may be a!!e! to that a#rea!y assigne!* the #aw says that none may be taken away. This ru#e has #e! to consi!erab#e confusion when #an! is nee!e! for a rai#roa! or an in!ustria# enterprise. The e"tent to which+the right of perpetua# use is preserve! is evi!ence! by a wartime #aw provi!ing that unuse! #an! of a catt#e co=perative association may be use! by an agricu#tura# co=perative association* but on#y when the Counci# of 7eop#es+ Commissar of the 3epub#ic grants the #icense* an! when the #ivestock farm consents.The  privi#ege is confine!* however* however* to the !uration of the war. -ot a## of the #an! assigne! to the co=perative association in the officia# (2ct( is worke! in a co=perative manner. 2roun! each house there is set asi!e a p#ot of #an! varying from one%uarter to oneha#f or even onehectare* in accor!ance with the region in which the co##ective farm is #ocate!. This sma## p#ot is in a!!ition to the #an! on which the house actua##y rests an! is ti##e! by the peasant househo#! aroun! whose house it stan!s. To carry on this process the househo#! retains the private use of sma##  -o rent as such is pai! the state for the use of agricu#tura# #an!* but users are re%uire! to se## a certain  percentage of their pro!uce to the state at a fi"e! price. &nasmuch as this price is #ower than the open market  price* the !ifference may in some measure* be consi!ere! as the cost of use* a#though Soviet #awyers wou#! !ecry any attempt to c#ass it as such. URBAN LAND 'rban #an! is occupie! #arge#y in the same manner as agricu#tura# #an!. Most of the !we##ings in cit ies are owne!  by the #oca# cit y government* known as the city cit y Soviet* so that the %uestion is one of !istributing the use. This is !one un!er a bo!y of #aw too comp#icate! for e"amination at this point. 6n the other han! many apartment houses are now erecte! by state enterprises to house their emp#oyees* an! since the war there has been renewe! emphasis upon the bui#!ing of private homes in the suburbs by the in!ivi!ua#s who wi## #ive in them. 2 state enterprise in constructing a bui#!ing out of its own fun!s becomes the owner of the bui#!ing*but not of the #an! on which it stan!s. This*being the property of the the state* is #ease! to the enterprise. ;efore 19> these #eases were in contract form for a perio! of years* provi!ing that if the #ease were not renewe!* the bui#!ing wou#! revert to the state* which in turn wou#! repay the state enterprise the va#ue of the bui#!ing as carrie! on the  books or the cost price as amortie!. 2fter 19> the t he contracts of #ease for a !efinite term were abo#ishe!* both insofar as they a#rea!y e"iste! e"iste! an! for new construction. &n their p#ace a new concept was !eve#ope! simi#ar to that un!er which co##ective co##ective farms were being provi!e! provi!e! with #an!. The state enterprise enterprise obtaine! from the #oca# Soviet an (2ct of 7erpetua# 'se.( 'n!er this (2ct*( groun! rent is e"acte! for the use of the #an!. The enterprise may ho#! the #an! so #ong as the property right in the bui#!ing e"ists. 7rivate#y 7rivate#y owne! D!we##ings D!we##ings ate bui#t in accor!ance accor!ance with contracts contracts ma!e with the #oca# Soviet.This Soviet.This contract !efines the term of occupancy as a specifie! number of years. 5roun! rent is pai! for the use of the #an!. This form of construction has been mich favore! since the war an! is e"pecte! to be an important factor in reconstruction. Co=perative bui#!ing societies former#y e"iste! in #arge numbers* an! these obtaine! the use of the #an! un!er a contract of #ease or an (2ct of 7erpetua# 'se*( si mi#ar to that un!er which state enterprises ho#! #an!* an!  pai! groun! rent in the same manner. /"cept in suburban areas the t he co=perative bui#!ing associations have now  been abo#ishe!.

GOVERNMENT CORPORATIONS 7ro!uctive resources other than #an! are e"p#oite! by government corporations in accor!ance with a vast  bo!y of #aw which has become a primary concern of the Soviet #awyer. These government corporations operate un!er charters !efining the scope of their activity un!er un!er the supervision of the 7eop#e+s 7eop#e+s commissariat by which they were create!. They are given acapita# fun! by the agency creating them. This fun! inc#u!es the bui#!ings* furnishings furnishings** e%uipment e%uipment** supp#ies supp#ies of fue#* raw materia#s* materia#s* finishe! an! semifinishe! semifinishe! pro!ucts pro!ucts an! rub#e ba#ance ba#ance a##ocate! to the corporation. These are inventorie! an! eva#uate! an! the #ist is affi"e! to the corporate charter. The #ist !oes not inc#u!e the #an!* forests an! water supp#y occupie! or use! by the corporation* a#though their  !imensions an! a !escription. are set forth in the charter for the purpose of recor!. This asset of the state is he#! un!er the terms common to a## #an!. Strict ru#es of contract #aw re#ate to the manner in which government corporations obtain an! !ispose of   property in the or!inary course of business* but the basic assets may not be !ispose! of un#ess a !ecision to #i%ui!ate the corporation iS ma!e* in which case superior state agencies +arrange for !istribution in accor!ance with the !ictates of the economic situation. The !etai#s of this operation are too comp#icate! for thepresent review an! may be foun! e#sewhere. THE POSITION OF CONSUMERS' GOODS LAW The growing importance of #aw re#ating to the use an! a!ministration of stateowne! property came c#ose* for a time* to ec#ipsing the #aw re#ating to consumers+ goo!s. This bo!y of #aw was re#egate! to the rea#m of  re#ics of the past* whi#e the bo!y of #aw re#ating to pro!ucers goo!s was terme! (economica!ministrative #aw( an! hera#!e! as the #aw of the future. Civi# #aw was thought of as !ying ! ying out* as the Soviet state a!vance! towar!s comp#ete socia#ism* an! u#timate communismthe perio! which /nge#s ha!  prophesie! as being the perio! in which #aw wou#! !isappear an! there wou#! be on#y the prob#em of  a!ministering things. The po#itica# theory un!er#ying this !eve#opment is important because of its farreaching effects. &t must be remembere! that many Soviet jurists thought the new state forme! in 191:* on the basis of Mar"ian teaching as to what was necessary to assure an effective socia# an! economic revo#ution* wou#! have no use at a## for   property #aw. $hen )enin !eci!e! it was necessary to resort to the -ew /conomic 7o#ic y in 191 an! to uti#ie  private inter prise in #imite! form to restore the economy which ha! been ruine! by war an! the #ong perio! of  intervention by foreign armies* civi# #aw became necessary to regu#ate the property re#ationships anticipate! un!er the new program. Aurists traine!* in the o#! schoo#* but thinking in terms of the revo#ution trie! to !evise a co!e which wou#! meet the nee!s of private enterprise* but which wou#! preserve the po#itica# princip#es for which the revo#ution ha! been fought. They a!opte! provisions propose! by an &mperia# Commission which ha! been working on a revise! Civi# Co!e for the Tsarist Tsarist /mpire before the revo#ution* an! they a#so !rew upon the more more progressive Civi# Co!es of the Continent. They e"p#aine! that a#though #aw was the pro!uct of the market p#ace an! essentia##y bourgeois in character* it was something re%uire! for a time unti# the new Soviet state cou#! firm#y estab#ish itse#f. &n keeping with this theory the Soviet jurists sai! sai! they !rafte! a Civi# Co!e which was bourgeois in formbut socia#ist in substance. &t was enacte! in 19. 2fter the -ew /conomic 7o#icy ha! serve! its purpose* an! was ta"e! out of e"istence* the Co!e remaine!* a#though #arge sections were superse!e! by new !ecrees on the a!ministration of stateowne! property. Aurists of the ear#y revo#utionary schoo# !eci!e! that the #aw they ha! incorporate! in their Civi# Co!e as bourgeois in form shou#! begin to pass from the scene. They cease! teaching it as a separate course in the #aw schoo#s* an! cease! cease! pub#ishing te"tbooks about it. They taught it apo#ogetica##y at the en! of the course on (/conomic2!ministrative )aw( an! p#ace! it at the en! of te"tbooks on the same subject. The economic situation change! as the ,iveEear ,iveEear 7#ans progresse!. Stateownership of the means of   pro!uction became firm#y imbe!!e! in the nationa# consciousness* but the use of property incentives became  pre!ominant in the organiation of pro!uction. This fina##y f#owere! in the Stakhanov movement* un!er which workers who cou#! e"cee! the e"pecte! !ai#y output or (norm( were pai! at a higher rate for the e"cess  pro!uction. $ith these increase! earnings the workers sought to purchase ncrease! %uantities of consumers+ goo!s* inc#u!ing homes* an! they !eposite! more money in the State Savings ;anks. 2#though the provisions of the Civi# Co!e re#ating to the con!uct of private enterprise were not important* the other provisions re#ating to the use of consumers+ goo!s regaine! importance. This change was recognie! in the new Constitution of the '.S.S.3. of 19>=* which guarantee! property rights in consumers+ goo!s inc#u!ing the right of inheritance. i nheritance.  jurists* who ha! previous#y been #itt#e known* ouste! the o#! schoo# in 19>:. The new men e"p#aine! that the o#!er men ha! not #earne! their Mar"ist theory t heory correct#y. < They ha! erre! when they conc#u!e! that #aw was the pro!uct of the market p#ace* an! therefore subject to a withering away process as bourgeois economy was rep#ace! with socia#ist economy . They shou#! have note! that whi#e Mar" use! bourgeois society as the  basis of his ana#ysis ana# ysis of the state* he* an! especia##y his co##aborator* /nge#s* ha! trace! back their stu!ies to the origin of the state. This ha! occurre! with the !eve#opment of the princip#e of !ivision of #abor an! e"change of 

goo!s. 2s society progresse!* #aw ha! been put to use by the s#aveho#!ers* the feuata# #or!s an! the bourgeoisie* in that or!er* an! wou#! be put to use by the  pro#etarians when they constructe! their new society. )aw was* therefore* not a creation an! servant of* the  bourgeoisie* but of each ru#ing c#ass in society societ y* an! it wou#! continue to t o e"ist with the pro#etariat as its po#itica# too# unti# the economy of communism shou#! be achieve!. There cou#! be no %uestion of a withering away  process whi#e the new economy was sti## being bui#t an! especia##y especia## y whi#e capita#ist economy e"iste! in a## the rest of the wor#! an! motivate! hosti#ity towar! the Soviet 'nion. The new jurists e"p#aine! that the ear#ier men ha! confuse! the (termino#ogy( of the co!es which ha!  been copie! in preparing the Soviet Civi# Co!e with (form*( an! that it was incorrect to say sa y that Soviet #aw was  bourgeois in form. Simi#arity of termino#ogy has nothing to !o with s imi#arity in form* for form !erives its character+ from its substance or content* so that Soviet #aw* being socia#ist in substance must a#so be socia#ist in form.This princip#e of ege#ian phi#osophy was !ec#are! basic. @uring the war* Fyshinsky as the !ean of the Soviet #ega# profession has reemphasie! the importance of #aw an! criticie! those who anticipate! any process of withering away !uring the continuation of capita#ist encirc#ement an! whi#e the new economy is  being bui#t.Civi# #aw has regaine! its prestige an! its future future is assure!. SOURCES OF INCOME $ith the abo#ition of private ownership in the means of pro!uction* no Soviet citien !erives income by way of  !ivi!en!s on corporate stocks or interest on corporate bon!s. The basic source of income is one+s own #abor* an! the #abor #aw becomes the princip#e regu#ator of activity from which income springs. This !oes not mean* however* that the basic source of income is the on#y one. To ai! in financing the state+s state+s activities* activities* the Soviet Soviet governmen governmentt has resorte! to borrowing borrowing from its citiens. citiens. &t has !one this byissuing byissuing government bon!s from time to time* as the occasion !eman!e!*. the terms of the offering being set forth in a !ecree. These bon!s are in various forms* the most usua# of which are the interestbearing an! the #ottery forms. The interest bearing bon!s pay annua# interest of > per cent or 4 per cent* in accor!ance with the issue* whi#e the #ottery bon!s pay no interest but if they are ca##e! in the %uarter#y #ottery* the bearer +receives from 1B< to >*