Распоряжение исключительным правом, относящимся к общему имуществу супругов: нормы какого кодекса подлежат применению?

Александра Урошлева

Распоряжение исключительным правом, относящимся к общему имуществу супругов: нормы какого кодекса подлежат применению?
ginasanders / Depositphotos.com

Распоряжение исключительным правом на результат интеллектуальной деятельности или на средство индивидуализации осуществляется правообладателями совместно, если Гражданским кодексом или соглашением между правообладателями не предусмотрено иное (п. 3 ст. 1229 ГК РФ). При этом Семейным кодексом устанавливается презумпция согласия супруга на распоряжение общим имуществом. Сделка, совершенная одним из супругов по распоряжению общим имуществом супругов, может быть признана судом недействительной по мотивам отсутствия согласия другого супруга только по его требованию и только в случаях, если доказано, что другая сторона в сделке знала или заведомо должна была знать о несогласии другого супруга на ее совершение (п. 2 ст. 35 Семейного кодекса РФ). Но, например, для заключения одним из супругов сделки по распоряжению имуществом, права на которое подлежат государственной регистрации, необходимо получить нотариально удостоверенное согласие другого супруга. Супруг, чье нотариально удостоверенное согласие на совершение указанной сделки не было получено, вправе требовать признания ее недействительной в судебном порядке в течение года со дня, когда он узнал или должен был узнать о совершении данной сделки (п. 3 ст. 35 Семейного кодекса РФ).

Обозначенные нормы семейного законодательства можно отнести и к распоряжению исключительными правами, однако в ГК РФ аналогичных положений не содержится. В связи с этим на заседании Научно-консультативного совета при СИП эксперты обсудили вопрос о том, какие же нормы считать специальными (lex specialis), и, соответственно, подлежащими применению. Старший научный сотрудник сектора сравнительного права Института государства и права РАН, доцент, к. ю. н. Светлана Крупко считает, что в случаях распоряжения одним из супругов исключительным правом, относящимся к общему имуществу, следует применять п. 2-3 ст. 35 Семейного кодекса РФ как специальные. По мнению эксперта, необходимо принимать во внимание тот факт, что при соправообладании между супругами существует, как минимум, два уровня правоотношений: совместного обладания имуществом, возможно при этом и наряду с иными обладателями, и семейные. И учитывать второй уровень правоотношений предписывает закон. Напомним, что согласно ст. 4 Семейного кодекса РФ гражданское законодательство применяется к имущественным и личным неимущественным отношениям между членами семьи, только если они не урегулированы семейным законодательством, и если это не противоречит существу семейных отношений. То, что нормы семейного законодательства являются специальными по отношению к ст. 1229 ГК РФ, поскольку устанавливают особенности, обусловленные субъектным составом, отметила в представленном письменном мнении и ведущий научный сотрудник Института права и развития ВШЭ – Сколково, доцент, к. ф. н., д. ю. н. Елена Войниканис.

При каких сделках неразумно требовать доказательств, подтверждающих согласованность действий супругов? Ответ – в Домашней правовой энциклопедии интернет-версии системы ГАРАНТ. Получите полный доступ на 3 дня бесплатно!

Председатель СИП Людмила Новоселова обозначила, что актуальным является вопрос о том, как вести себя лицам, которые выступают контрагентами по сделкам, связанным с исключительным правом, относящимся к общему имуществу супругов. В реестре, если речь идет, например, о патентообладании (ст. 1353 ГК РФ), не раскрывается информация о нахождении патентообладателя в браке. А при применении норм Семейного кодекса РФ существует риск того, что супруг(а) патентообладателя сможет оспорить сделку, если при ее совершении не было получено его или ее нотариально удостоверенное согласие. Преподаватель кафедры гражданского права юридического факультета МГУ имени М.В. Ломоносова, государственный советник юстиции 1-го класса Николай Щербаков считает, что контрагентам нужно проявлять осмотрительность: лучше предполагать изначально, что другая сторона может состоять в браке, уточнять этот вопрос и требовать при необходимости доказательств согласия супруга на совершение сделки.

Источник: garant.ru

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