Scientific and practical analysis of current regulations, judicial practice and legislative initiatives in the field of compensation for property damage caused by damage to real estate as a result of armed aggression of the Russian Federation
Analysis of the regulatory framework, legislative initiatives in the field of compensation for property damage caused by damage to real estate as a result of the armed aggression of the Russian Federation. Ensuring real compensation for property damage.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 25.12.2022 |
| Размер файла | 32,7 K |
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This issue is also relevant to legal entities that accrue depreciation of fixed assets, because depreciation is charged during the useful usage (operation) of fixed assets (Articles 138, 177 of the Civil Code of Ukraine), and the destruction of such fixed assets excludes this.
Thus, both the payment of real estate tax and the accrual are associated with the physical existence of the real estate (subject to recognition as an asset, i.e., crediting in balance sheet of the enterprise) and the existence of the of ownership to the subject. It is provided that the tax base of residential and non-residen- tial real estate, including their shares owned by individuals, is calculated by the supervisory authority on the basis of the State Register of Real Property Rights (p. 266.3.2 p 266.3 Article 266 of the Tax Code of Ukraine).
Given that under Part 1 of Article 182 of the Civil Code of Ukraine, the right of ownership and other real rights to immovable property, encumbrance of these rights, their origin, transfer and termination are subject to state registration and, in accordance with paragraph 4 of Part 1 of Article 346, Article 349 of the Civil Code of Ukraine, ownership of property is terminated in case of destruction of property, such a fact is subject to state registration in accordance with the Law of Ukraine "On State Registration of Real Property Rights and Encumbrances", Article 14 of which states that in case of destruction of real estate, the relevant section of the State Register of Rights and the registration file are closed. From this point on, for the purposes of tax law, the person ceases to be the owner, and the relevant real estate object ceases to exist.
Therefore, the company must, after receiving information about the destruction of objects from the SES (taking into account the resolution of the Cabinet of Ministers of Ukraine as of April 5, 2022 "On amendments to the Procedure for inspection of commissioned construction sites"), conduct an inventory and write off such destroyed objects in the established manner, by drawing up of a document on the writeoff of fixed assets - real estate from the balance of the enterprise in connection with the destruction, which will be grounds for exclusion of such object from the assets of the enterprise. This will be the basis for the termination of accrual of depreciation.
With regard to the payment of real estate tax, it is necessary to record information on the termination of ownership of the destroyed object in the State Register of Real Property Rights at the request of the owner. Since the state registration of ownership of a completed object in connection with its destruction is carried out in the presence of information on the fact of destruction obtained by the state registrar from the Unified State Electronic System in the field of construction (paragraph 75 of the State Registration of Real Property Rights and their encumbrances, approved in the edition of the resolution of the Cabinet of Ministers of Ukraine dated August 23, 2016, № 553), the owner of the destroyed property should ensure that relevant information is entered into the Unified State Electronic System in the Procedure approved by the Cabinet of Ministers of Ukraine as ofJune 23, 2021, № 681.
Conclusions
- The solution to the above problem is the adoption of a specific complex law. Such law should determine and provide the grounds, subjects, whose property is compensated, and procedure for seizing and recovering property in favor of Ukrainian residents who have suffered from property damage. The Ukrainian Parliament is already discussing some law drafts. The most debatable and polemical issues today are which sources of Russian assets could and should be used to cover losses caused by the Russian Federation's military aggression.
- Draft Law № 7169 was registered in the Verkhovna Rada; it intends to amend the Law of Ukraine “On Fundamental Principles of Forced Withdrawal in Ukraine of Property of Russian Federation and its Residents” that came into force on 7 March 2022 (hereinafter - Law of Ukraine № 2116-IX dated 03 March 2022). This Draft Law aims to widen the scope of persons, whose property could be withdrawn in Ukraine due to the Russian full-scale military aggression and specifies the purpose of such actions: towards future reparations to Ukraine.
- Increased attention should be focused on international efforts to block and afterwards seized Russians assets.
- Regardless of the country that supports EU or US sanctions against Russia or imposes its own sanctions against Russia due to military aggression against Ukraine, the most difficult and important measure is to take further steps with blocked Russian assets and, above all, with a legal mechanism to turn these seized assets in favor of Ukraine. It should be noted that this is the issue that is currently the "bottleneck", namely the inconsistency of the announced statements and slogans with the possibility of its implementation.
- Therefore, summarizing the above stated, it should be highlighted that without the adoption of a separate special comprehensive law on retribution (compensation) for damage caused by military aggression against Ukraine, which should determine the grounds, subjects whose property is compensated, and the procedure for seizure and reversal of this property in favor of Ukrainian residents who have suffered from property damage, there is no sense to talk about such compensation.
References:
1. Judgment of the Supreme Court of the Second Judicial Chamber of the Civil Court of Cassation from 27.10.2021 in case № 710/784/19 (case № 61-5289св20). URL: https://www.zakon-i-normativ.info/index.php/ component/lica/?href=0&view=text&base=5&id=134424&menu=135063
2. Comment of the judge of the Supreme Court Tetyana Antsupova on the adoption by the European Court of Human Rights of the Resolution on the consequences of the termination of Russia's membership in the Council of Europe. Official website of the Supreme Court. URL: https://supreme.court.gov.ua/supreme/pres-centr/ news/1264425/
3. Draft Law of Ukraine "On Compensation for Damage and Destruction of Certain Categories of Immovable Property as a Result of Combat, Terrorist Acts, Sabotage Caused by Military Aggression of the Russian Federation" from March 24th, 2022 № 7198. URL: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?pf3516=7198&skl=10.
4. Draft law of Ukraine "On Protection of Property Rights and Other Real Property Rights of Victims of Anti-Terrorist Operation or Joint Forces Operation" from 17.03.2021 № 5177-1. URL: https://itd.rada.gov.ua/ billInfo/Bills/Card/25987
5. Draft law of Ukraine "On Protection of Property Rights and Others Proprietary Rights of Victims of Armed Aggression" from 01.03.2021 № 5177. URL: https://itd.rada.gov.ua/billInfo/Bills/Card/25726
6. Draft law of Ukraine "On Reconstruction of Housing Lost as a Result of the Russian Federation's Armed Aggression Against Ukraine" from 10.03.2022 № 7134. URL: https://itd.rada.gov.ua/billInfo/Bills/Card/39189.
7. Draft law of Ukraine "On Amendments to the Budget Code of Ukraine on Financing the Reconstruction of Housing Lost as a Result of the Armed Aggression of the Russian Federation against Ukraine" from 10.03.2022 № 7135. URL: https://itd.rada.gov.ua/billInfo/Bills/Card/39190
8. Draft law of Ukraine "On Compensation for Property Lost, Damaged and Destroyed as a Result of the Armed Aggression of the Russian Federation and Fair Distribution of Reparations" from 31.03.2022 № 7237. URL: https://itd.rada.gov.ua/billInfo/Bills/Card/39332
9. According to the Office of the UN High Commissioner for Human Rights, as of February 2019, about 50,000 houses on both sides of the line of contact were damaged or destroyed, of which about 20,000 were in the territory controlled by the Government of Ukraine.
10. According to the Ministry of the Temporarily Occupied Territories and Internally Displaced Persons of Ukraine, 1,321 housing facilities were damaged (destroyed) in Luhansk and Donetsk oblasts, of which 825 were communally owned, 12,188 were privately owned, and 8 buildings were owned by unions of co-owners of apartment buildings). The estimated amount of funds needed for the restoration of these facilities is 2 billion 719 million.
11. Shishkina E. Compensation for damaged/destroyed property due to armed conflict in court: mission possible? Legal newspaper. 2019. № 33-34 (687-688); Segeda U. Compensation for damage caused as a result. ATO: hopes and realities. Legal Gazette. 2016. № 18-19 (516-517).
12. Judgement of the Grand Chamber of the Supreme Court from September 4th, 2019 in a civil case № 265/6582/16-ц. URL: https://reyestr.court.gov.ua/Review/86310215
13. Judgment of the Supreme Court from April, 25th, 2018 in civil case № 227/6023/15-ц. URL: https://reyestr.court.gov.ua/Review/74021731; Judgment of the Supreme Court from July 11th, 2018 in civil case № 219/11736/16-ц. URL: https://reyestr.court.gov.ua/Review/75345588
14. With the issue of compensation for housing destroyed by armed conflict, the judicial system was left alone. URL: https: //supreme.court.gov.ua/supreme/pres-centr/news/753159/
15. Draft Law of Ukraine "On Compensation for Property Damage Caused During the Anti-Terrorist Operation in Donetsk and Luhansk Oblasts" from 10.07.2014 № 4272а. URL: http://w1.c1.rada.gov.ua/pls/zweb2/ webproc4_1?pf3511=51684; Draft Law of Ukraine "On Amendments to the Law of Ukraine "On Ensuring the Rights and Freedoms of Internally Displaced Persons" (on Compensation for the Value of Damaged Property)" from 18.02.2015 № 2167. URL: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=54094; Draft Law of Ukraine "On Amendments to the Law of Ukraine "On Combating Terrorism "on Compensation for Damaged Housing as a Result of the Anti-Terrorist Operation" from 09.11.2015 № 3434. URL: http://w1.c1.rada. gov.ua/pls/zweb2/webproc4_1?pf3511=57001; Draft Law of Ukraine "On Compensation for Destroyed or Damaged Private Housing to Persons Whose Private Housing or Private Households Were Damaged (Destroyed) During an Anti-Terrorist Operation" from 24.03.2016 № 4301. URL: http://w1.c1.rada.gov.ua/pls/zweb2/web- proc4_1?pf3511=58524; Draft Law of Ukraine "On Compensation for Damage to Housing of the Population as a Result of the Anti-Terrorist Operation" from 11.04.2016 № 4301-1. URL: http://w1.c1.rada.gov.ua/pls/zweb2/ webproc4_1?pf3511=58670
16. Report of the High Commissioner of the Office of the United Nations on the human rights on the situation with human rights in Ukraine from May 16th, to August 15th, 2019.URL: https://www.ohchr.org/Documents/ Countries/UA/ReportUkraine16May-15Aug2019_UA.pdf
17. https://www.ukrinform.ua/rubric-uarazom/3450583-banki-tankeri-elita-ssa-viklali-spisok-novih-figuran- tiv-sankcij-proti-rf.html
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