The concept and content of the contract of participation in shared construction and its legal characteristics

The subject of the research is the contract of participation in shared construction. This type of contract is characterized by a special subject structure and defined as independent bilateral commercial agreement owing to which it stands out of other types of contracts. The practice of using this legal institution shows its possibilities and advantages in terms of increasing the number of citizens who have received the opportunity to improve their housing conditions. Nevertheless, today in Russia there is a question of stopping the use of shared-equity construction because there are also negative aspects of the implementation of this right, including an increase in the number of defrauded shareholders. The ambiguity of this legal institution throughout the history of its existence has been the subject of study by many scientists. One of the main issues of these studies was the equity participation agreement as a form of expression of legal relations between developers and participants in shared construction, which provides protection of the rights of all parties to the specified transaction. The equity participation agreement is the basis of legal relations between the parties and regulates their rights and obligations.

The purpose of this article is to investigate the main features of the contract in shared construction, to summarise different points of view on the definition of this legal document, to consider the algorithm of concluding this kind of contract, to review Russian legislation in the sphere of shared construction, Russian judicial practice and negative aspects of buying real estate units under this type of contracts.

Methodology. A systematic approach was used in combination with logical methods of cognition. It made it possible to study the theoretical, factual and legal grounds of the phenomenon of shared construction in Russia.

The main results, scope of application. The article stipulates the main features of the contract of shared construction, different points of view on the definition of this kind of contracts, the algorithm of concluding a contract of shared construction and Russian judicial practice in this sphere.

1. Gureeva M.A., Kudzh O.V. The concept and features of the agreement on participation in shared construction. IN SITU, 2015, no. 4, pp. 94–99. (In Russ.).

2. Kazantseva A.E. Legal nature of the agreement on participation in shared construction. Vestnik Altaiskoi akademii ekonomiki i prava, 2006, no. 10, pp. 69–72. (In Russ.).

3. Sklovsky K.I. Equity agreement in construction and the emergence of ownership of an object of shared construction. Khozyaistvo i pravo, 2008, no. 7, pp. 38–49. (In Russ.).

4. Sobolev D.A. On the «publicity» of the agreement for participation in shared construction. Trudy SGA, 2010, no. 6 (34), pp. 39–45. (In Russ.).

5. Verbina O.L. The rights of participants in shared housing construction in the Russian Federation: problems of implementation. Pravovye voprosy nedvizhimosti, 2014, no. 1, pp. 15–19. (In Russ.).

6. Kindeeva E.A. Acquisition of real rights to newly created objects, Cand. Diss. Thesis. Moscow, 2009. 22 p. (In Russ.).

7. Petrukhin M.V. Problems of legal regulation of the agreement on participation in shared construction of real estate objects, Cand. Diss. Thesis. Moscow, 2010. 24 p. (In Russ.).

8. Kharitoshin I.I. Agreement for participation in shared construction: civil law issues of qualification and application, Cand. Diss. Thesis. Moscow, 2009. 31 p. (In Russ.).

9. Maiboroda T.Yu. Share agreement in housing construction and other contractual obligations. Vestnik Yuzhno-Ural’skogo gosudarstvennogo universiteta. Seriya: Pravo, 2006, iss. 13, pp. 279–285. (In Russ.).

10. Avakyan K.S. Protection of the rights of citizens involved in shared housing construction. Severo-Kavkazskii yuridicheskii vestnik, 2018, no. 2, pp. 92–98. (In Russ.).

11. Burtseva E.V. Changes in legislation in the field of shared construction: pros and cons, in: Aktual’nye problemy pravovogo, sotsial’nogo i politicheskogo razvitiya Rossii, proceedings of 10th International scientific and practical conference of students, undergraduates, postgraduates, Saratov, Saratovskii istochnik Publ., 2017, pp. 42–44. (In Russ.).

12. Binkovskaya A.A. Is an agreement on participation in shared construction a public agreement or an accession agreement? Nauka i obrazovanie: khozyaistvo i ekonomika; predprinimatel’stvo; pravo i upravlenie, 2013, no. 10, pp. 75–80. (In Russ.).

13. Mochalova T.V. Equity participation agreement in construction and a construction contract: a comparative legal aspect. Yuridicheskii mir, 2008, no. 10, pp. 38–41. (In Russ.).

14. Soloviev D.S. Equity agreement in construction and agreement on joint activities (simple partnership): problems of general and different in theory and judicial practice. Arbitrazhyi i grazhdanskii protsess, 2007, no. 7, pp. 43–45. (In Russ.).

15. Kobylkova T.A. Ambiguity of concepts in the field of shared construction as a problem of management and control. Studencheskii nauchnyi zurnal, 2018, no. 10 (30), pp. 41–43. (In Russ.).

16. Kurova N.N., Tarakanov P.V. Agreement for Participation in Equity Construction of Real Estate Objects: Actual Issues. Nauchnye vedomosti Belgorodskogo gosudarstvennogo universiteta. Seriya: Filosofiya. Sotsiologiya. Pravo, 2016, no. 10 (231), pp. 120–126. (In Russ.).

17. Gukasov E.G. On the qualification of an equity participation agreement in shared construction, in: Nauchnoe soobshchestvo studentov. Mezhdistsiplinarnye issledovaniya, electronic collection of articles on the proceedings of 43td student International scientific and practical conference, vol. 8 (43), Novosibirsk, SibAK Publ., 2018, pp. 478–482, available at: https://sibac.info/archive/meghdis/8(43).pdf. (In Russ.).

18. Akchulpanova E.Kh. Legal regulation of the agreement on participation in shared construction, Cand. Diss. Thesis. Kazan, 2006. 34 p. (In Russ.).

19. Bunina N. The object of shared construction: legal problems of defining the concept. Yurist, 2007, no. 6, pp. 42–45. (In Russ.).

20. Gorbachev S.G. Legal nature of the agreement on participation in shared construction of real estate objects and its place among other types of agreements. Yurist, 2008, no. 4, pp. 17–23. (In Russ.).

21. Gushchin V.Z. Some aspects of civil liability. Sovremennoe pravo, 2008, no. 11, pp. 17–25. (In Russ.).

22. Dikun A.V. Agreement for participation in shared construction: problems of theory and law enforcement practice, Cand. Diss. Rostov-on-Don, 2011. 214 p. (In Russ.).

23. Ershov O.G. On the emergence of the right of public ownership of residential premises as objects of shared construction. Pravo i ekonomika, 2008, no. 3, pp. 26–29. (In Russ.).

24. Vagina O.S. Some features of the subjective composition of legal relations in the sphere of participation in shared construction. Vestnik Permskogo universiteta, 2011, no. 1, pp. 82–87. (In Russ.).

25. Danilov V.V. Scope of application of the construction contract, in: Pravo: sovremennye tendentsii, proceedings of international scientific conference, Ufa, 2012, pp. 56–65. (In Russ.).

26. Lepekhin I.A. Legal nature of the agreement on participation in shared construction. Yurist, 2013, no. 2, pp. 7–11. (In Russ.).

27. Sobolev D.A. Correlation between the shared construction agreement and related agreements. Pravo i politika, 2010, no. 7, pp. 1338–1342. (In Russ.).

28. Melnik V.V. Equity participation agreements in construction. Vestnik Vysshego Arbitrazhnogo Suda Rossiiskoi Federatsii, 2014, no. 2, pp. 180–194. (In Russ.).

29. Romanets Y. How to qualify equity participation agreements in construction? Ekonomika i pravo, 2010, no. 3, pp. 74–78. (In Russ.).