Law in Kazakhstan Civil Law

Introduction

Sources:
Constitution
Civil Code
Numerous laws (Law on JSC, Law on LLP and PAL, Law on consumer rights protection etc.)
Others.

Fundamental Principles of Civil Legislation
Protection of Civil Rights
Subjects of Civil Law
Property right
Objects of Civil Law
Transactions
Representation and Power of Attorney
Law of Obligations.
General Part

Principles:
Equality of the participants
Inviolability of property
Freedom of agreement
Restitution for violated rights and their defense in the court
Unrestricted circulation of goods, services and monetary resources in the entire territory of the RK.
Note: Restrictions are allowed only in accordance with the legislative acts, where it is necessary for ensuring security, protection of life and health of the people, protection of the natural environment and cultural valuables.

Protection of civil rights:
restitution of status quo
compensation of material damage (real damage + lost profit) and moral damage.

Subjects of civil relations:
Natural persons
Legal entities
Administrative-territorial units
State.

Natural persons

Natural persons:
Citizens of Kazakhstan
Foreign citizens
Stateless persons.

Legal capacity
is one’s capacity to have civil rights and obligations [art.13 CC]

Legal capacity
All citizens have equal LC [art.13(1) CC]
LC begins from one’s birth and ends with one’s death. [art.13(2) CC]
Content of LC: to owe any property, inherit, choose place of residence, to have intellectual property etc. [art.14 CC]

Active capacity (deed capacity, dispositive legal capacity)
citizen’s capacity by his own actions to obtain and to exercise his civil rights, to create for himself civil obligations and to fulfill them [art.17 CC]

Active capacity
Full AC begins with attaining one’s majority, 18 years. [art.17(1) CC]
Marriage at 16 years old or emancipation – full AC at 16. [art.17(2) CC]

Full AC age reduction:
Marriage at the age of 16-18. Organ of state registration (ZAGS) gives permission. Minor receives full AC from the moment of registration of marriage.
Emancipation at the age of 16-18. Organ of Guardianship and Tutorship makes decision. Minor receives full AC from the moment when the decision was made.

Active capacity of minors…
… of 14 – 18 years old [art.22 CC]
All bargains – with the consent of parents, adopters or tutors
Dispose own income and objects of their intellectual property, make day-to-day bargains

Active capacity of minors…
…under 14 [art. 23 CC]
For them all the bargains are made by parents, adopters and guardians
Simple day-to-day bargains correspondent to their age

Limitation of active capacity
Why:
alcoholic or drug addiction which puts one’s family in difficult financial situation [art.27 CC]

Ceasing of active capacity
Why:
mental decease due to which a person does not realize own actions [art. 26 CC]

Legal entities

Legal entity:
It is an organization which:
has its separate property on the basis of property right, right of business authority or right of operational management;
is liable for its obligations with this property;
can in its own name acquire and exercise property and personal non-property rights and obligations;
can be a plaintiff and a defendant in the court;
has independent balance-sheet or budget.
A legal entity has a seal with its name. (art. 33 CC)

Commercial organization
Aimed on the receiving of profit
The income is distributed between the participants
Types of commercial organizations:
state enterprise
business partnership
joint stock company
production cooperative society (art. 34 (1,2) CC)

Non-commercial organization
Does not have the receiving of profit as the main aim
The income is not distributed between the participants
Types of non-commercial organizations:
Institution
Public foundation
Non-commercial joint-stock company
Religious association
Consumer cooperative society
Social fund
Other types (art. 34 (1,3) CC)

Legal capacity of legal entity
Begins from the moment of its creation (registration) or from the moment of the obtaining of a license, if the license is required for that activity.
Finishes at the moment of the end of its liquidation or at the moment of expiry of the license, if the license was required for that activity (art. 35 (1,2) CC )

Business partnership:
It is a commercial organization, the charter fund of which is divided into shares of the founders.
The property of the business partnership, created on the basis of investments of the founders as well as the property that was produced or acquired by the business partnership during the period of its activity belongs to that business partnership on the basis of property right (art. 58 (1) CC)

Types of business partnerships
general partnership
its participants (general partners), in the case of insufficiency of the property of the partnership, bare the joint liability for the obligations of the partnership with all their property (art. 63 CC)
kommandit partnership
besides one or more general partners there are also one or more participants with limited liability; only general partners can manage the business activity of the partnership (art.72 CC)
limited liability partnership
its partners bear the risk of losses associated with the activities of the partnership within the limits of the contributions made by themselves (art.77 CC)
partnership with additional liability
its participants are liable for the obligations of the partnership with their investments to the charter fund and in the case those are insufficient – additionally with the property that belongs to them in the amount proportionate to the contributions made by them (art.84 CC)

Joint stock company
It is a legal entity, which makes the emission of shares with the scope to attract the money for executing of its activity (art.3 (1) of the Law of RK on JSC)
its participants (shareholders) bear the risk of losses associated with the activities of company within the limits of the shares that belong to them.

Property right

Property right
The right to possess
The right to use
The right to dispose (art.188 CC)

Right of business authority
It is a material right of a state enterprise, which has received the property from the state and which exercises the right to possess, to use and to dispose towards that property, as it is provided for by the legislation of the Republic of Kazakhstan. (art.196 CC)

Right of business authority
Does not include the right to:
sell or transmit the property to the other people
exchange
give in a long-term lease (over 3 years)
give on the non-paid basis the right to use the property to the other people
create branches of the state enterprise
establish joint productions and joint companies together with private entrepreneurs, invest therein their production and monetary capital
give credits to the private entrepreneurs with the interest lower than the one constituted by the National bank of the RK. (art.200 CC)

The right of operational management:
It is a material right of an institution, state institution, financed by the owner, or of a budget enterprise, which has received the property from the owner and which exercises the right to use, to possess and to dispose of the property in accordance with the legislation of the Republic of Kazakhstan, with the aims of its activity, with the tasks of the owner and with the destination of this property. (art.202 CC)

The right of operational management
Does not include the right to determine the legal destiny of the property which the company had received on the basis of the balance-sheet. (art. 206 CC)

Grounds for acquisition of property right
Primary Grounds
Derivative Grounds

Primary Grounds
Manufacture or creation of things;
Fruits, products, and revenues received as a result of the use of property.
Find, treasure
Acquisitive prescription – a person or legal entity, who is not the owner of property but in good faith, openly, and uninterruptedly possesses immovable property as his own for fifteen years or other property for five years acquires the right of ownership in such property.

Derivative Grounds
Contract of purchase/sale, barter, gift, or other transaction concerning the alienation of this property.
Inheritance
Reorganization of a juridical person the right of ownership in the property belonging to it passes to the juridical persons-legal successors of the reorganized juridical person.

Grounds for termination of property right
Alienation by the owner of his property to other persons;
Renunciation of the property right by the owner;
Perishing or destruction of the property;
Loss of the property right to property in other instances provided for by legislation.

Compulsory deprival of property right
Satisfaction of claims of creditor
Compulsory alienation of property which by virtue of legislative acts can not belong to the particular person
Requisition (in cases of emergency)
Confiscation (by court decision as punishment)
Withdrawal of a land plot;
Purchase of improvidently maintained cultural and historical values.