ИСПОЛЬЗОВАНИЕ ПУБЛИЧНЫХ ЗЕМЕЛЬ ИЛИ ЗЕМЕЛЬНЫХ УЧАСТКОВ ДЛЯ РАЗМЕЩЕНИЯ НЕСТАЦИОНАРНЫХ ТОРГОВЫХ ОБЪЕКТОВ

Abstract

Introduction: the development of legislation in the field of non-stationary retail trade in general and the use of public lands or land plots for the placement of non-stationary retail facilities (NSRFs) in particular have long been under the attention of the legislator. Several bills were drafted for this purpose, which, however, were subsequently rejected. The search for a model of legal regulation of the use of public lands or land plots for the placement of NSRFs resulted in supplementing the Land Code of the Russian Federation with Chapter V.6. To regulate the relations in question, the legislator introduced an original construction of titleless use of public lands or land plots, which has not yet received an unambiguous assessment from both researchers and law enforcers. Purpose: to provide scientific and theoretical substantiation of the need to regulate the analyzed relations within the framework of land legislation on the basis of a civil contract of lease. Methods: general scientific methods (method of formal and dialectical logic; methods of comparison, description, interpretation) and special scientific methods (formal legal; grammatical, historical, systematic, logical, and teleological interpretation of legal norms). Result: relations on the placement of NSRFs on public lands or land plots are, according to the author, unreasonably excluded from the scope of the Land Code of the Russian Federation. The regulation of these relations in Federal Law No. 381-FZ ‘On the Basic Principles of State Regulation of Trading Activities in the Russian Federation’ not only did not simplify the procedure and conditions for using public lands or land plots for the placement of NSRFs but turned out to be practically unrealizable. Currently, the procedure and conditions for the placement of NSRFs on public lands or plots are mainly regulated by the constituent entities of the Russian Federation, whose acts allow for variability in the legal formalization of relations in these cases. Contrary to the provisions of Item 1 of Article 39.36 of the Land Code of the Russian Federation, the relations on the placement of NSRFs on public lands or land plots are mediated not by the scheme of placement, but by a contract for an NSRF placement or lease. Comparing these contracts, the author finds no grounds for classifying the contract for the placement of an NSRF as a separate type of contract (non-typed contract). Given the above, the regulation of the relations in question should be carried out under the Land Code of the Russian Federation by providing land plots, their parts as well as lands for lease.