The choice of one of the variants of the new version of the Federal Law "On Land use planning" will have an impact on the further development of land law and on the success of solving practical problems in the field of food security

Lipski Stanislav Andzheevich Doctor of Economics Associate Professor, Head of the Department of Land Law of The State Land Development University 15 Kazakova str., Moscow, 105064 lipski-sa@yandex.ru Other publications by this author

For domestic land management, the current situation with its regulatory support and the actual state is contradictory.

On the one hand, for Russia it is a traditional instrument of land management, and regulated by the norms of law in much more detail than others (control, accounting, procedures for the emergence, transfer and termination of land rights). The key factors under the influence of which the formation of land management took place (the vectors of its development were determined at different stages) are mostly still in effect today. We will list only the main ones. This:

- (the first factor in chronology and its consequences) huge (in comparison with European states) spaces and lower population density, which is why landholdings for a long time did not have clear borders, and their establishment in pre-revolutionary Russia was handled by the state (and not by private individuals themselves – as in European countries). This implies a special state status of land surveyors–land surveyors. What was expressed, for example, in the militarization of the corps of boundary engineers in the second half of the XIX century. However, then land management in its current understanding (as a set of organizational and economic measures for the organization of territories and land protection) it was not yet – the surveyors, as they were then called, performed boundary work, engaged in various descriptions of lands and their assessment. This is a constantly existing factor. After all, even with the current very high level of technological equipment (aerospace survey methods, artificial intelligence, digitization of data on lands and plots, various possibilities for modifying these data), the information support of the land sphere and the accuracy of the available data are still incomparable with European countries;

- nationalization of all lands, as a key consequence of the revolution of 1917, which led to the fact that for seven decades any land legal relations that arose in the USSR acquired a special (absolutely non-property) character, and all lands began to be included in a Single state land fund. This further strengthened the public-legal nature of the regulation of land management works. And although their content and methods of implementation are similar to Western European Flurbereinigung (land consolidation), Land Use Planning and Amenagement Foncier (land use planning); Land Management (land management), Land Survey (land surveying); Land Administration (land management). Physical Planning (territorial planning), and Russia belongs to a single Germanic-Romanesque legal family with the countries of continental Europe (where the above works, even when they are performed by an organization associated with public authorities, are regulated, rather, by the norms of private law), the legal regulation of land management in our country has always been public law;

- post-war industrialization of agricultural production, which required an integrated approach to the organization of land use, which was reflected not only in the consolidation of collective farms, which occurred in the early 1950s, but also, to a greater extent, in the development of virgin and fallow lands in the middle of the same decade. This became the basis for a dual understanding of land management. Firstly, it is narrow, limited by a set of organizational, technical, economic and other measures that make it possible to adapt existing land resources to the possibilities of their use for certain needs. First of all, of course, this applied to the lands provided to agricultural farms. Therefore, the most developed component of the diverse Soviet land management was its on–farm - projects of on-farm organization of the territory were developed for almost all agricultural farms. These works were carried out by state design organizations (Giprozems) – by the end of the 1980s, more than 10.5 thousand specialists worked in the largest all-Russian land-organizing organization – Rosnizemproject (taking into account its institutes and branches) ^[5]). In addition, such ("narrow") land management was a key component in the land fund management system. After all, the other tools (land accounting and control, provision and withdrawal of plots) were either directly part of the land management, or provided it. Thus, the provision (allotments) of land were carried out according to land management projects, control over land use almost coincided with the author's supervision of the implementation of such projects, and land accounting recorded design decisions. This gave reason to P.F.Loiko to identify Soviet land management with the system of all measures of state land use management (legal means regulating land relations ^[7]) – in his understanding, cadastre, control, land reclamation, etc. were part of such a "broad" land management as its components (he called it all a "land management system" ^{[6, c. 13]}). Accordingly, secondly, - in a broad sense – land management has been perceived for many years as a synonym for the entire named system of state administration of the land fund;

- the factor that is still in force today is the agrarian and land reform of the early 1990s, when the principle of exclusivity of state ownership of land was abandoned, and the implementation of traditional types of land management work – the development of projects of on-farm and inter-farm land management – practically ceased. As a result, the role of land management as a tool of public administration has decreased – the cadastre, registration of land rights, state control in this area, etc. not only "left" its composition, but also acquired more important, as it seemed at the time, meaning – providing protection of land rights, collection of land payments and civil turnover of plots. Moreover, the regulation of all of them was rather of a private-legal nature;

- this was further developed in 2007, when cadastral relations were reformed. Then, land surveying work in relation to land plots "left" from land management to cadastral activity (Federal Law No. 66-FZ of May 13, 2008 "On Amendments to Certain Legislative Acts of the Russian Federation and the Recognition of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation as Invalid in Connection with the Adoption of the Federal Law "On State cadastre of real estate" // Sobr. zakonodat. Ros. Federation – 2008 – No. 20 – Article 2251). In the following years, both legislative and actual narrowing of the sphere of land management activities took place, which led to the discussion of the very concept of land management (and the relations arising during its implementation) as a subject of legal regulation. This applies to the object of land management (only the whole land or also the surveying of the boundaries of individual plots; only agricultural land or all target categories of land), and to its nature (mandatory or voluntary), and to the composition of its performers (only state institutions or only individuals – as cadastral engineers; admission to land management works on the basis of a license, permit, accreditation, etc. or the possibility of their performance by any persons; various qualification requirements for the performers of these works) ^{[3, pp. 14-18]}.

The current phase in the development of domestic land management and its legal regulation is determined by the tasks and problems that are currently being solved in the field of agriculture:

- there is a socio-political demand for a change through a special land management mechanism of the existing attitude to national wealth – land (including the re–development of significant abandoned areas - according to some data up to 25-30% of arable land that has been eliminated from household turnover) ^[11];

- to make this mechanism convenient and profitable for farmers;

- to link the newly implemented land management measures with the general development of the agricultural economy of the country and the regulatory participation of the state in this;

- to use the power of the state for the successful implementation of all components of this mechanism (co-financing of expenses, prompt updating of the legal framework, the use of scientific potential).

Moreover, the current moment for land management is much similar to its transformation during the agar reform of P.A.Stolypin carried out more than a century ago: then it was important to solve the problem of small land and destroy the peasant community. For this purpose, the development of new lands and the creation of farmsteads on them were stimulated in every possible way. Such development (both then and now) requires land management support. It is no coincidence that it was during the Stolypin reform that the nature of previously purely technical land surveying (surveying and accounting of land for tax purposes) changed, which marked the beginning of the formation of domestic land management in its current understanding. Then the surveyors had to deal not just with the ordering of the boundaries of land holdings and the strengthening of rights to them, but to organize their use in a completely new way (mainly in new, still only inhabited territories). It was the land management measures that then made it possible to organize farming in new places more thoughtfully, in combination with other conditions important for a single peasant leaving the community (the presence of ponds and other water bodies, residential and outbuildings, the placement of land and their configuration, the places of sale of crops and livestock products collected in the fields). This new organizational and managerial and economic content of land management was reflected in the first relevant special law in our country - "On Land Management" (dated May 29, 1911). It is probably not necessary to exaggerate the importance of land management in the results of that reform and the "pacification" of the peasantry (after the events of 1905-1907), but after all, the Bolsheviks, until they came to power, negatively assessed land management precisely for this reason – the presence of positive results of the reform due to land management (we do not give a general assessment of it in this case). Thus, one can judge the attitude of the Bolsheviks to land management at that time by the work of V.I. Lenin in 1913, "Land management and the rural poor" – in his opinion, then it helped only strong peasants, while weak, downtrodden (potential allies of the Bolsheviks), on the contrary, only suppressed: "land management is a chariot, in which which sits strong and crushes the stricken" ^{[2, p. 6]}. However, almost immediately after coming to power, the Bolsheviks not only nationalized all land, but also agreed with the special role of land management in the Soviet land use management system.

Describing the modern system of regulatory regulators of land management, we note that it is based on the norms of Articles 68 and 69 of the Land Code of the Russian Federation and Federal Law No. 78-FZ of June 18, 2001 "On Land Management" (hereinafter, respectively, the RF Land Code and the Law on Land Management). If we compare their original editions (2001), it should be noted that both of them have changed significantly: for the first, the current version is the 142nd, and for the second - the 13th. But how and why they changed is different in its essence. So the edits of the Code were the result of the continued development and complication of land relations (10 new chapters appeared in it, as a result of all these edits, the RF CC has more than doubled textually). And the logic of such an addition to it stemmed from the objective needs of the economy, public life, problems revealed in law enforcement practice related to its norms.

Whereas almost all the amendments to the Law on Land Management were reduced to the exclusion of such objects and types of work that were traditionally in the field of land management, and now they have been "transferred to someone" - some have now "gone" to cadastral engineers, others, excluded from the Law on Land Management types of work, it is generally unclear who will perform (for example, define the boundaries of different zones). That is, in its current form, the Law on Land Management does not work, and it must somehow be "restored", which has long been pointed out by a number of researchers and practitioners ^{[1, 8, 9]}.

On June 13, 2018, the Federal Minister of Economic Development issued Order No. 305 on the creation of a special working group to improve the Institute of Land Management (the author of this article was a member of it). The result of its developments (it is important that they were subsequently largely changed) was the first of the draft laws considered in this article – the Version of the Ministry of Economic Development of Russia (2018).

This option was guided by Western experience and "led away" the regulation of land management towards private law (following cadastral engineers). The most consistent opponents of this option turned out to be not so much the legal, as the land management and professional environment.

After the reform of the federal government in 2020, this option "got" Rosreestr (all the powers and functions of the Ministry of Economic Development of Russia in the field of land management passed to him), whose developments, however, differed very slightly from the previous one – in fact, it was the same project, only formally nominated by another developer.

Conceptually, scientists, practitioners and university professors who disagree with him have developed their own version (the version of the State University on Land Management – GUZa – Federal Law "On Land Management" (draft). Ed. Academician of the Russian Academy of Sciences S.N. Volkov. – M.: GUZ, 2020. – 144 p.). After the end of 2021 The government has changed the lead developer of the bill from federal agencies, which instead of the Federal Register became the Federal Ministry of Agriculture, it was the GUZ variant that was taken by this ministry as a basis. Moreover, the proposals of the Ministry of Agriculture (https://regulation.gov.ru/projects#npa=126300 ) on all substantive points (the subject and object of land management, the status of a land surveyor, etc.) became a compromise, and terminologically and in terms of the documentation provided by him, this bill turned out to be understandable to professionals. It also provides for the subsequent development of a number of by-laws, which, if adopted, will provide detailed and detailed regulation of land management (we are talking about the rules for conducting state expertise of land management documentation, composition, content and rules for its registration, land management standards, the procedure for maintaining the fund of data obtained during land management and their use, formation and storage of land management cases, requirements for the description of borders, etc.).

Thus, now there is a clear fork in the further development of domestic legislation on land management – there are several variants of the new version of the relevant law, differing: 1) the degree of continuity in relation to the key approaches to domestic land management that have been formed over the many–year (if not centuries-old) history of its development (to the greatest extent this continuity is characteristic of the variants of the GUZ and the Ministry of Agriculture); 2) the volume of borrowings of foreign experience (to the greatest extent it is present in the draft law of the Ministry of Economic Development); 3) taking into account current problems in land use, first of all – in agriculture (to one extent or another, all the options considered are oriented to these problems, another thing is the priority of such problems in the vision of the developers of the draft law options); 4) the degree of continuity, or, conversely, innovation in terms of terminology and documentation (more conservative options of the State Duma and the Ministry of Agriculture and rejected by the professional community – largely for this reason – the bills of the Ministry of Economic Development and Rosreestr). In fact, there are more such options, since their developers constantly interact, and some approaches, including fundamental ones, change in them. For example, the question of the status of a land surveyor, which is not defined in the current legislation at all, and according to paragraph 6 of Article 69 of the RF Land Management Code, all types of land management work are freely performed by any legal entities and individual entrepreneurs (and without any special permits). In the initial version of the Ministry of Economic Development, they recognized an individual with an appropriate education who would be employed by a legal entity or be an entrepreneur (by analogy with a cadastral engineer); and in his version of the end of 2019, only one single organization (budgetary institution) subordinated to the Federal Register. In the variants of Rosreestr and GUZA, this is an employee of such an organization. And the last option of the Ministry of Agriculture recognizes them as an employee of an organization (and any – private, municipal or state institution) so is the individual entrepreneur. But the key difference between these options is the predominance in the regulation of land management of public-legal principles (traditional for our country) or private-legal (according to the experience of the Nordic countries).

The fact that there are several such options, on the one hand, expands the possibilities to update the entire system of legislative regulation of land management in the shortest possible time, and on the other – the competition of these options (and their developers), of course, slows down this process (recall – the first option was ready already in 2018). Moreover, due tobecause of this, it cannot be ruled out that the work on this bill will take the same protracted nature as on the legislative formalization of the idea to abolish the categories of land (here the "score goes" for decades). Of course, the general economic and even socio-political "weight" of these bills is not comparable (the idea of abolishing categories has stirred up wide layers of various scientists and practitioners; and the discussion about a new vector of land management development has affected only a narrow layer of professionals), but it is impossible to exclude similarities in their fate (it is no coincidence that the 2018 version of the Ministry of Economic Development was promoted in one package with another legislative initiative to abandon the categories of land).

Which of these options will receive priority will also affect the vector of further development of land legislation as a whole: at least because the regulation of land management is one of the few areas that develop the constitutional provision on joint federal–regional jurisdiction in land law issues - almost two dozen have been adopted in different regions "their" laws on land management (now the institute of land management (its regulation) acts as one of the few confirming this constitutional feature of the land law branch).

This is also important for legal science: while remaining an element of the state's participation in land management and its land policy, land management "balances" in modern domestic land law the private principles that have taken root over the past decades – this is both the civil turnover of plots, and the agreements of their rightholders on the coordination of borders, and much more (it is not by chance that the development and the adoption of new land-legal acts in the 1990s covered more issues regulated by the private legal method). After all, even solving the seemingly private issue of organizing (optimizing) the land use of any farmer or agricultural farm, the land surveyor does everything so that his decisions do not lead to disputes over borders, to flaws in the organization of land use, to its irrationality. This is all about protecting the interests of society, and, accordingly, it is an argument in favor of performing land law research within the framework of the scientific specialty 5.1.2. "Public law (state law) sciences" (research direction – "Public law regulation of environmental protection, nature management, land relations and urban planning").

The practical aspects of choosing the option for further legislative development of land management are related to:

- the work carried out since 2011 to transfer unclaimed land shares to municipalities (so far this process has been completed with respect to only slightly more than half of their total area ^{[4, p. 198; 10]}). It is important here that the formation of massifs corresponding to such shares should be in compliance with land management requirements;

- implementation of the state program for the re-development of abandoned agricultural lands adopted in 2021 (On the State Program for the effective Involvement in the Turnover of Agricultural Land and the Development of the Reclamation complex of the Russian Federation: Decree of the Government of the Russian Federation No. 731 of May 14, 2021 // Sobr. zakonodat. Ros. Federation -2021 – No. 21 – Article 3583). After all , it is: 1) surveys and inventories that precede the design developments of land managers will provide the necessary information about the state of the land (this will reduce the risks of not revealing abandoned land and concentrate on the most promising from an economic point of view); 2) litigation, if necessary, will be supported by materials of land management expertise (and the experience of "working" with unclaimed shares indicates that there are risks here); 3) on the basis of land management projects for the re-development of abandoned lands, linked to the suitability of land, market demands, logistics and other factors taken into account (balanced) in land management, not only will the search for new rights holders for such lands be simplified, but their rational use will also be organized.

In the end, one version of the new Law on Land Management will still be adopted. In this case, it will become the basis for the subsequent development of Russian land management for a long-term perspective (as it was earlier in the course of other land reforms carried out in Russia "from above"). If none of the variants of the new version of the Law on Land Management does not receive development, then it will be necessary to promptly "restore" the current federal law, first of all, regulating land management support for work with unclaimed shares and abandoned land.

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