(старая редакция) the civil code of the republic of kazakstan

Decree of the Supreme Soviet of the Republic of Kazakstan Concerning the Implementation of the Civil Code of the Republic of Kazakstan (General Part) The 27th of December, 1994 № 269-II

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SECTIO№ 1. GENERAL PROVISIONS

CHAPTER 1. REGULATION OF CIVIL RIGHTS RELATIONS

Article 1. Relations which are regulated by civil legislation

1. The civil legislation shall regulate commodity-money relations and other proprietary relations which are based on the equality of the participants, and also personal non-proprietary relations which are associated with proprietary relations. Citizens, legal entities, and also state, administrative, and territorial units shall be participants of the relations regulated by the civil legislation.

2. Personal non-proprietary relations which are not associated with proprietary relations, shall be regulated by the civil legislation, unless otherwise stipulated in the legislative acts or follows from the essence of a personal proprietary relations.

3. The civil legislation shall apply to family relations, labor relations and relations associated with the use of natural resources and the protection of the environment, which meet the requirements of paragraph 1 of this Article, in the cases where those relations are not regulated respectively by the legislation concerning family, labor, the use of the natural resources and the protection of the environment.

4. The civil legislation shall not apply to proprietary relations which are based on administrative or any other power subordinating one party by the other, including tax and other budget relations, except for the cases stipulated in the legislative acts.

Article 2. Fundamental basics of the civil legislation

1. The civil legislation is based on the recognition of the equality of the participants of the relations regulated thereby, the inviolability of property, freedom of agreement, the unacceptability of the arbitrary interference in a person's private affairs, the indispensability of the free exercise of civil rights, the provision for the restitution for violated rights and their defense in the court.

2. Citizens and legal entities shall acquire and exercise their civil rights by their will and in their interests. They shall be free in establishing their rights and obligations on the basis of agreement and in determining any conditions for the agreements, which do not contradict the legislation.

3. Goods, services and monetary resources shall unrestrictedly circulate in the entire territory of the Republic of Kazakstan. Restrictions in the circulation of goods and services shall be introduced in accordance with the legislative acts, where it is necessary for ensuring safety, protection of life and health of the people, protection of the natural environment and cultural valuables.

Article 3. Civil legislation of the Republic of Kazakstan

1. The civil legislation of the Republic of Kazakstan shall be for the entire Republic and it shall consist of this Code and any other laws of the Republic of Kazakstan, the Decrees of the Supreme Soviet of the Republic of Kazakstan (the legislative acts), Edicts and Decrees of the President of the Republic of Kazakstan, Resolutions of the Government of the Republic of Kazakstan, which are adopted in accordance with this Code, which regulate the relations indicated in paragraphs 1 and 2 of Article 1 of the present Code.

2. The provisions of the civil law which are contained in the legislation of the Republic of Kazakstan, including the legislation concerning family, housing, land, water, forestry and the protection of the environment, must comply with this Code. In the event of a contradiction between provisions of the civil law which are contained in any other legislative acts and provisions of the present Code, the provisions of the present Code shall apply. The provisions of the civil law which are contained in the legislation of the Republic of Kazakstan and which contradict the provisions of the present Code, may apply only after the introduction of appropriate amendments to the Code.

3. Civil relations may be regulated by traditions, including the traditions of business activities, unless they contradict the civil legislation which is effective in the territory of the Republic of Kazakstan.

4. The ministries and departments of the Republic of Kazakstan, and also local representative and executive bodies may issue acts which regulate civil relations in the cases and within the limits stipulated by the present Code and any other acts of the civil legislation.

5. The rights of the citizens and legal entities, which are established by the present Code and any other legislative acts of the Republic of Kazakstan may not be restricted by the acts of the bodies of state administration and local representative and executive bodies. Such acts shall be invalid from the moment of their adoption and must not be applied.

6. Foreign physical persons and legal entities and also stateless persons shall have the right to acquire the same rights and they shall be obliged to fulfill the same obligations which are stipulated in the civil legislation for the citizens and legal entities of the Republic of Kazakstan, unless the legislative acts stipulate otherwise.

7. Where an international treaty, to which the Republic of Kazakstan is a signatory, establishes different rules than those contained in the civil legislation of the Republic of Kazakstan, the rules of the mentioned treaty shall apply. The international treaties to which the Republic of Kazakstan is a signatory, shall apply to the civil relations directly, except for the cases where it ensues from a treaty that its application requires issuing of a domestic act of the Republic.

Article 4. The time effect of civil legislation

1. The acts of civil legislation shall not have the retroactive force and they shall apply to the relations which arise after their entering into force. The legal force of an act of the civil legislation shall extend to the relations which arose prior to its enactment in the cases where it is directly stipulated therein.

2. With regard to relations which arise prior to the enactment of a civil legislative act, it shall apply to the rights and obligations which arise after its enactment. The relations of parties in an agreement concluded prior to the enactment of the civil legislation act shall be regulated in accordance with Article 383 of this Code.

Article 5. Application of civil legislation by analogy

1. In the cases where the relations stipulated in paragraph 1 and 2 of Article 1 of this Code are not directly regulated by the legislation or the agreement of the parties, and traditions do not exist which are applicable to such relations, the provisions of the civil legislation shall apply to them, which regulate similar relations (by analogy of law) as long as they do not contradict their essence.

2. Where it is impossible in the indicated cases to use the analogies of law and the obligations of the parties shall be determined on the basis of the common fundamentals and the essence of the civil legislation and the requirements of fairness, reason and justice analogy of law).

Article 6. Interpretation of provisions of the civil legislation

1. Provisions of the civil legislation must be interpreted in accordance with the literary sense of their word meanings. Where the possibility exists of a different understanding of the words used in the text of the legislative provisions, preference shall be granted to the understanding corresponding to the provisions of the Constitution of the Republic of Kazakstan and the fundamental principles of the civil legislation which are outlined in this Chapter, and first of all in Article 2.

2. When identifying the precise meaning of a provision in the civil legislation, it shall be necessary to consider the historic conditions under which it was introduced and its interpretation in the judicial practice unless it violates the requirements stipulated in paragraph 1 of this Article.

Article 7. Basis for the emergence of civil rights and obligations

The civil rights and obligations shall arise on the grounds which are stipulated in the legislation and also from the actions of the citizens and legal entities which although are not stipulated in it, but by virtue of the common fundamentals and the essence of the civil legislation give rise to civil rights and obligations.

In accordance with this, civil rights and obligations shall arise as follows:

1) out of agreements and any other transactions contemplated by legislation, and also from the transactions which although are not stipulated in it, but do not contradict legislation;

2) from administrative acts which give rise to the civil legal consequences by virtue of the legislation;

3) from court decisions which establish civil rights and obligations;

4) as a result of creating or acquiring assets on the grounds which are not prohibited by the legislative acts;

5) as a result of creating inventions, industrial samples, scientific works, literature and art and any other results of intellectual activity;

6) as a result of inflicting damage upon another person, and equally as a result of the unfounded acquisition or saving assets at the expense of another person (groundless enrichment);

7) as a result of any other actions of citizens and legal entities;

8) as a result of the events with which the legislation associates the emergence of the civil rights consequences.

Article 8. Exercise of a civil right

1. Citizens and legal entities at their discretion shall exercise the civil rights which belong to them, including the right of their protection.

2. The refusal of citizens and legal entities from exercising their rights shall not entail the cessation of those rights, except for the cases which are stipulated in the legislative acts.

3. The exercise of the civil rights must not violate the rights and the interests protected by law of other legal persons and it must not cause any harm to the environment.

4. Citizens and legal entities must act honestly, reasonably and fairly when exercising their rights, complying with the requirements which are contained in the legislation, the moral principles of the society, and entrepreneurs also with the rules of business ethics. This obligation may not be excluded or restricted by any agreement. The fairness, reasonableness and honesty of the actions of the participants of civil rights relations shall be presumed.

5. The actions of citizens and legal entities shall not be acceptable if they are aimed at causing harm to any other person, abusing the right in any other forms and also at exercising the right in contradiction to its designation. In the case of a failure to comply with the requirements stipulated in paragraphs 3 to 5 of this Article, a court may refuse a person the protection of the right which belongs to him.

Article 9. Protection of civil rights

1. The protection of the civil rights shall be exercised by the court, arbitration tribunal or intermediate court by the way of: recognition of the rights; restitution of the position which existed prior to the violation of the right; discontinuance of the actions which violate the right or create the threat of its violation; compulsion of the execution of an obligation in kind; compensation of losses; forfeit; recognition of the transaction as invalid; compensation of moral losses; termination or alteration of legal relations; the recognition as invalid or non-applicable of all acts which do not comply with the legislation of a body of state administration or a local representative or executive body; the imposition of a fine on the state body or from an official for impeding a citizen or a legal entity in the acquisition or exercise of their rights and also in the other ways which are stipulated in the legislative acts.

2. The appeal for the protection of a violated right to an authority or administration shall not exclude the appeal to the court with the action to protect the right, unless the legislative acts stipulate otherwise.

3. In the cases which are specifically stipulated in the legislative acts, the protection of civil rights shall be carried out directly by actual or legal actions of the person whose right is violated (self-defense).

4. The person whose right is violated may require the entire restitution of the losses cause to him, unless the legislative acts or the agreement do not stipulate otherwise. The expenditure shall be understood to mean losses, which are incurred or must be incurred by the person whose right is violated, the loss or the damage to his property (real damage) and also the lost profit which this person would have received under the normal conditions of business if his right has not been violated (lost profits).

5. The losses which are caused to a citizen or a legal entity as a result of the issuing by a governmental body of an act which does not comply with the legislation or by any other state body and also by the actions (failure to act) of the officials of those bodies, shall be subject to compensation by the Republic of Kazakstan or appropriately by the administrative and territorial unit.

6. Where the emerging of the legal consequences of the violation depends on the guilt of the violator, his guiltiness shall be presumed, except for the cases where the legislative acts stipulate otherwise.

Article 10. Protection of the rights of entrepreneurs and consumers

1. Entrepreneurship shall be the initiative activity of citizens and legal entities, irrespective of the form of ownership, which is aimed at the extraction of profits or personal income by way of satisfying the demand for goods (work, services) which is based on private property (private entrepreneurship) or under the right to business authority of a state enterprise (state entrepreneurship). Entrepreneurial activity shall be carried out on behalf of, under the risk, and under the proprietary liability of the entrepreneur.

2. The State shall guarantee the freedom of entrepreneurial activities and it shall ensure its protection and support.

3. The rights of entrepreneurs who carry out the activities which are not prohibited by the legislation shall be protected as follows:

1) by the opportunity to carry out entrepreneurial activities without obtaining anyone's, permissions, except for the types of activity which are to be licensed;

2) by the simplest procedure for the registration of any types of entrepreneurship in any sphere of the economy by one authority by way of a simple arrival there;

3) by restricting through the legislative acts of the audits which are carried out by state bodies;

4) by the compulsory termination of entrepreneurial activities only based upon the decision of the court which is made on the basis of a ground stipulated in a legislative act;

5) by the establishment through the legislative acts of the list of work, types of goods and services which are prohibited for private entrepreneurship, prohibited or restricted for export and import;

6) by bringing state bodies, officials and any other persons and organizations to the property responsibility before the entrepreneur for the illegal impediments to their activities;

7) by any other means which are stipulated by legislation.

4. The manufacture and sale of certain types of goods, work and services because of the considerations of national security, ensuring law and order, the protection of the environment, property, life and health of citizens may be carried out in accordance with the State licenses. The list of such goods, work and services shall be determined by the legislative acts or according to the procedure established by them.

5. The commercial (entrepreneurial) secret shall be protected by law. The procedure for identifying the information which constitutes a commercial secret, the means of its protection and also the list of information which must not be included among commercial secrets shall be established by the legislation.

6. The protection of the rights of consumers shall be ensured by the means which are envisaged by this Code or any other legislative acts. Each consumer shall have in particular the right to free entering of agreements to purchase goods, use work and services, proper quality and safety of goods (work, services); full and reliable information on goods (work, services); join public associations of consumers.

Article 11. Unacceptability of abusing freedom of entrepreneurship

1. Monopolist and any other activities which are aimed at restricting or eliminating legal competition, the obtaining of ungrounded advantages, the restriction of the rights and of the legal interests of consumers shall not be permitted.

2. The use by entrepreneurs of the civil rights for the purpose of restricting competition, shall not be permitted, except for the cases stipulated in the legislative acts including amongst those:

1) the abuse by entrepreneurs of their dominant position in the market, in particular, by way of restricting or terminating the production or reserving from the circulation of any goods for the creation of their shortages or increasing the prices;

2) concluding and executing by the persons which carry out similar entrepreneurial activities of the agreements concerning prices, subdivision of markets, elimination of any other entrepreneurs and on any other conditions which significantly restrict competition;

3) commitment of unfair actions which are aimed of the restriction of legal interests of a person who conducts similar entrepreneurial activities and of the consumer (unfair competition), in particular, by way of misleading consumers in respect of the manufacturer, designation, method and place of manufacture, quality or any other properties of the commodity of any other entrepreneurs by way of incorrect comparison of goods in advertising and any other information, copying external design of somebody else's commodity and by any other- means. The remedies to right the unfair competition shall be established by the legislative acts.

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CHAPTER 2. SUBJECTS IN THE CIVIL RIGHTS

Paragraph 1. The Citizens of the Republic of

Kazakstan and Other Physical Persons

Article 12. The concept of a physical person

Physical persons shall be understood as citizens of the Republic of Kazakstan, citizens of any other states and also stateless persons. The provisions of this chapter shall apply to any physical persons, unless otherwise established by this Code.

Article 13. The legal capacity of citizens

1. The capacity to have civil rights and bear obligations (the civil rights capacity) shall be recognized as equal in all citizens.

2. The legal capacity of a citizen shall arise at the moment of his birth and it shall cease with his demise.

Article 14. The principal meaning of the legal capacity of a citizen

A citizen may have, under his right to own, properties including foreign currency, both within the boundaries of the Republic of Kazakstan and outside its borders, inherit and bequeath property, freely move in the territory of the Republic and select a place of residence, freely leave the boundaries of the Republic and return to its territory, engage in any activities which are not prohibited by the legislative acts, create legal entities independently or with other citizens and legal entities, commit any transactions which are not prohibited by legislative acts, participate in transactions, have the right to intellectual property on the invention, scientific works, literature and art and any other results of' intellectual activity: claim compensation for financial and moral damage; have any other proprietary and personal right.

Article 15. The name of a citizen

1. A citizen shall acquire and exercise the rights and obligations under his name including the surname and proper name and at his discretion the patronymic name.

2. The legislation may stipulate the cases of anonymous acquisition by citizens of the rights and fulfillment of obligations or the use of a pen name (fictitious name).

3. The name which is received by a citizen at his birth and also a change of' the name shall be subject to registration in accordance with the procedure established by the legislation concerning the registration of the acts on the civil status.

4. A citizen shall have the right to change his name in accordance with the procedure established by the legislative acts. The change shall not be the basis for the cessation or alteration of his rights and obligations which are acquired under the former name, anonymously, or under a pen name.

5. A citizen shall be obliged to adopt the necessary measures to notify his debtors and creditors of the change of his name and shall bear the risk associated with the consequences which are caused by the unawareness of those persons of the change of his name.

6. A citizen who has changed his name shall have the right to require the introduction of the appropriate amendments into the documents formulated for his former name.

7. The acquisition of the rights and obligations under the name of a different person shall not be permitted.

8. A citizen shall have the right to require the prohibition of the use of his name where it was done without his consent.

9. The harm caused to a citizen as a result of the illicit use of his name shall be subject to compensation in accordance with the provisions of this Code.

In the case of a distortion or use of the name or a citizen by ways or in a form which affect his honor, dignity, or business reputation, the rules shall apply which are stipulated in Article 143 of this Code.

Article 16. The place of residence of a citizen

1. A populated area where a citizen permanently or predominantly resides shall be the place of residence of the citizen.

2. The place of the residence of the parents, adopters, and guardians shall be recognized to be the place of residence of persons who have not reached 14 years or age or citizens who are under a guardianship.

Article 17. Deed capacity of citizens

1. The capacity of a citizen by his deeds to acquire and exercise the civil rights, create for himself civil obligations and fulfill them (citizen's deed capacity) shall arise in its full volume with the advent or the age of majority that is upon reaching 18 years of age.

2. In the situation where legislative acts permit entering marriage prior to the reaching of eighteen years age, the citizen who has not reached 18 years of age shall acquire the deed capacity in its full volume from the moment of entering marriage.

3. All citizens shall have an equal deed capacity unless otherwise stipulated in the legislative acts.

Article 18. Unacceptability of deprivation and restriction of legal capacity and deed capacity

1. Nobody may be restricted in legal capacity and deed capacity other than in the cases and in accordance with the procedure stipulated in the legislative acts.

2. The non-compliance with the conditions and the procedure established by the legislative acts for restricting legal capacity and deed capacity of citizens or of their right to engage in entrepreneurial or any other activities, shall entail the invalidity of the act of the state body or any other authority which established that restriction.

3. An entire or partial refusal of a citizen of his legal capacity or deed capacity and any other transactions which are aimed at restricting the legal capacity or deed capacity, shall be invalid except for the cases where such transactions are permitted by the legislative acts.

Article 19. Entrepreneurial activities of citizens

1. Citizens shall have the right to engage in entrepreneurial activities without creating legal entities except for the cases stipulated in this Code, from the moment of state registration.

2. The State registration of private entrepreneurs shall have a simple arrival nature and it shall consist in getting registered as an individual entrepreneur.

3. The rules of this Code which regulate the activities of the legal entities which are commercial organizations shall appropriately apply to entrepreneurial activities unless otherwise follows from the legislation or the essence of the legal relation.

4. The following citizens who carry out entrepreneurial activities without the formation of legal entities shall be exempt from state registration:

1) those who are part of a peasant farm;

2) those who carry out one-time work on the basis of a contract agreement and any other civil rights agreement;

3) those who engage, outside of the wholesale and retail trade network, in selling the assets which belong to them and also products which are manufactured, including foreign industrial and food commodities, in the places which are specifically allocated for those purposes and through second-hand shops;

4) the citizens whose earnings from selling work. and services do not exceed 20 minimum wages per annum. Accounting for the indicated citizens as taxpayers and the procedure for their taxation shall be carried out in accordance with tax legislation.

5. Citizens who carry out entrepreneurial activities without the formation of a legal entity, shall operate on a purchased patent. The patent at the same time shall be the certificate of the state registration of the citizen as entrepreneur and it shall be a license which grants the right to carry out the entrepreneurial activities stipulated in the patent. The procedure for issuing patents and the amount of the patent fee shall be determined by the Cabinet of Ministers of the Republic of Kazakstan.

Article 20. Proprietary responsibility of a citizen

1. A citizen shall be liable for his obligations with all the assets that belong to him except for the assets upon which , in accordance with legislative acts, a claim may not be imposed.

2. The list of assets of citizens upon which claims may not be imposed shall be established by the Civil Procedure Code of the Republic of Kazakstan.

Article 21. Bankruptcy of an individual entrepreneur

1. An individual entrepreneur who is in no position to satisfy the claims of creditors which are associated with his performance of entrepreneurial activities, within three months, may be recognized bankrupt in accordance with Article 52 of this Code. The registration of a citizen as an individual entrepreneur shall become invalid from the moment of the recognition of the individual entrepreneur as bankrupt.

2. When carrying out the procedure of recognizing an individual entrepreneur bankrupt, his creditors on the obligations which are not associated with his performance of entrepreneurial activities, shall also have the right to present their claims. The claims of the mentioned creditors which are not declared by them at such a procedure, shall retain force after the completion of the procedure of bankruptcy of the individual entrepreneur. In any case, the claims of the citizens to whom the person declared as bankrupt bears the responsibility for causing harm to life and health shall retain their force as well as any other claims of a personal nature.

3. Satisfaction of the claims of creditors of an individual entrepreneur in the case of recognizing him as bankrupt, shall be carried out at the expense of the property which belongs to him (Article 20 of this Code) in the following sequence:

1) in first place, the claims shall be satisfied which are associated with the payments of alimony and also Use claims to compensate harm caused to life and health;

2) in second priority, the settlement shall be made with respect to labor payments to the persons who work under employment agreements and to pay remuneration on authorship agreements;

3) in third priority, those claims of creditors shall be satisfied. which are secured with the pledge of property belonging to the individual entrepreneur;

4) in fourth priority, the debt shall be repaid upon the obligation associated with compulsory payments to the budget and to the non-budgetary funds;

5) in fifth priority, settlements shall be made with other creditors in accordance with legislative acts. The satisfaction of the claims of the creditors in each category shall be carried out in accordance with the rules stipulated in Article 51 of this Code.

4. Upon completion of' the settlements with the creditors, the individual entrepreneur who is recognized as bankrupt shall be free from the fulfillment of remaining obligations which are associated with his entrepreneurial activities, and any other claims which are presented for execution and taken into account when recognizing the entrepreneur as bankrupt, except for the cases which are stipulated in paragraph 2 of this Article.

Article 22. Deed capacity or minors from fourteen to eighteen years old

1. Minors in age from fourteen to eighteen years shall conduct transactions with the consent of their parents, adopters, or guardians. The form of such consent must comply with the form which is established by legislation for transactions conducted by a minor.

2. Minors in the age from fourteen to eighteen years old shall have the right to independently dispose of' their wagers, grants and any other income and the items in the right of intellectual property, which are created by them. and also to commit small day-today transactions.

3. Where sufficient reasons exist the body of adopting and guardianship can restrict or deprive the minor of the right to independently dispose of his wages, grants and any other income and of the pieces of intellectual property created by him.

4. Minors in the age from 14 to 18 years shall independently bear responsibility with respect to the transactions conducted by them in accordance with the rules of this Article and they shall bear responsibility for the harm caused by their actions in accordance with the rules or this Code.

Article 23. Deed capacity of the minors from fourteen to eighteen years old

1. For minors who have not reached 14 years of age, transactions shall be conducted by the parents, adopters, or guardians on their behalf, unless otherwise stipulated in the legislative acts.

2. Minors under the age of 14 years shall have the right to independently conduct only small day-to-day transactions which are appropriate for their age and which are executed at the same time when they are conducted.

Article 24. The consent of the bodies of adopting and guardianship to conduct transactions by minors and for minors

Legislative acts may establish the instances where the conducting of a transaction by a minor and for a minor shall first require the consent of the body of adopting and guardianship.

Article 25. The right of minors to deposit and dispose of savings in banks

1. Minors shall have the right to deposit savings into banks and to independently dispose of the savings which are deposited by themselves.

2. The savings which are deposited by somebody else on behalf of minors who have not reached 14 years of age, shall be disposed of by their parents or any other legal representatives, while minors who have reached 14 years of age shall independently dispose of the savings deposited by somebody else on their behalf.

Article 26. The recognition of a citizen an incompetent

1. A citizen who as a result of psychic disease or mental weakness cannot understand the meaning of his actions or direct them may be recognized by the court as incompetent, in consequence thereof guardianship shall be established over him.

2. Transaction shall be carried out by the guardian on behalf of the citizen who is recognized as incompetent.

3. In the case of a recovery or the significant improvement of the health of an incompetent person, the court shall recognize him as capable, after which the guardianship shall be withdrawn from him.

Article 27. Restrictions of the capacity of citizens

1. A citizen who as a result of the abuse of alcoholic drinks or narcotic substances puts his family into a difficult financial position, may be restricted by the court in deed capacity in accordance with the procedure established by the Civil Procedure Code of the Republic of Kazakstan. A guardianship shall be established over him. He shall have the right to independently conduct small daily transactions. The conducting of any other transactions and also receiving of wages, pensions and any other benefits and disposing of them he may only with the consent of the guardian.

2. Where a citizen stops the abuse of alcoholic drinks or narcotic substances, the court shall abolish the restrictions of his capacity. The guardianship established over the citizen shall be abolished on the basis of a court decision.

Article 28. The recognition of a citizen as absent in location unknown

1. A citizen may be, upon the application of the interested persons, recognized by the court as absent in location unknown, if within one year in the place of his residence there is no information on him.