Application of Civil Legislation by Analogy

GENERAL CHARACTERISTICS OF ARTICLE 5 OF THE CIVIL CODE OF THE REPUBLIC OF KAZAKHSTAN

Article 5 of the Civil Code of the Republic of Kazakhstan establishes a mechanism for filling gaps in civil law, that is, situations where the legislation does not contain norms that directly regulate certain civil-law relations. It allows the use of analogy of law (analogy of statute) and analogy of right (analogy of legal principles), based on the principles of legal certainty, fairness, and good faith.

I. ANALOGY OF LAW (Clause 1 of Article 5 of the Civil Code of the RK)

Concept

Analogy of law means applying a legal rule that regulates similar relations to situations that are not directly regulated by legislation.

Conditions for application

1. The relation is not directly regulated by law;

2. There is no agreement between the parties governing the situation;

3. There are no customs applicable to the specific case;

4. There are similar legal norms that may be applied by meaning.

Example from practice (illustrative)

A company rents a server from an IT company, but the contract does not regulate liability for a failure in cloud storage. The legislation does not directly regulate server lease relations. In such a case, the court may apply by analogy the rules governing a property lease agreement (Article 540 of the Civil Code of the RK), if the relations are similar in their legal nature.

II. ANALOGY OF RIGHT (Clause 2 of Article 5 of the Civil Code of the RK)

Concept

If the analogy of law cannot be applied (i.e., there are no similar legal norms), then analogy of right is used. In this case, the dispute is resolved based on the general principles of civil legislation, namely:

• the principles of good faith;

• reasonableness;

• fairness;

• fundamental provisions of civil law.

Related principles (Article 2 of the Civil Code of the RK)

• Freedom of contract;

• Inadmissibility of arbitrary interference;

• Ensuring restoration of violated rights.

Example from practice

A citizen transferred property in the form of a digital object (NFT), but the legislation on digital assets does not fully regulate such relations. The court cannot apply an analogy with another type of contract; therefore, it relies on the analogy of right, guided by the principles of good faith and equality of the parties in order to determine the legal regime of such an asset.

III. APPLICATION OF CUSTOM PRECEDES ANALOGY

Before applying analogy, the court or another authority must ensure that there is no applicable custom. This requirement follows from the systemic relationship between Article 5 and Article 7 of the Civil Code of the RK (“Customs”).

Customs may replace normative regulation if they do not contradict mandatory provisions of the law.

IV. CONNECTION WITH ARTICLE 1 OF THE CIVIL CODE OF THE RK

The text refers to “relations provided for in paragraphs 1 and 2 of Article 1 of this Code.”

These include:

• Paragraph 1 of Article 1 — relations based on equality, autonomy of will, and property independence;

• Paragraph 2 of Article 1 — application of the Civil Code to civil, entrepreneurial, family, and labor relations, unless otherwise established by special laws.

V. INTERNATIONAL ANALOGIES AND SOURCES

1. Model legal acts

• The UNIDROIT Principles of International Commercial Contracts allow the use of analogy to fill gaps (Article 1.6);

• The Principles of European Contract Law (PECL) contain similar approaches (Article 1:106 PECL — “Good faith and fair dealing”).

2. Case law of the European Court of Human Rights and private international law

The application of analogy must respect the principle of legal certainty, particularly within the framework of Kazakhstan’s obligations under international treaties (for example, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms — the right to a fair trial).

VI. RELATED PROVISIONS OF DOMESTIC LEGISLATION

VII. IMPORTANT NOTE FOR PRACTICING LAWYERS

The application of analogy requires proper justification and careful legal argumentation. Arbitrary or excessively broad interpretation is not allowed.

When applying analogy:

• it is necessary to indicate the specific legal norm used by analogy (in the case of analogy of law);

• it is necessary to justify the application of general principles (in the case of analogy of right);

• it must be documented that no special or similar norms exist that regulate the situation.

VIII. JUDICIAL PRACTICE IN KAZAKHSTAN

In the practice of the Supreme Court of the Republic of Kazakhstan, analogy is applied:

• in disputes concerning new digital assets;

• in cases involving recognition of oral transactions between individuals not directly covered by legislation;

• in disputes related to mixed contracts (for example, a lease agreement containing elements of a loan).

In the 2023 review of judicial practice of the Supreme Court of the RK (civil cases section), it was noted that the application of analogy of right is permissible, but the principles applied must be indicated in the reasoning part of the court decision.

CONCLUSION

Article 5 of the Civil Code of the Republic of Kazakhstan is a key instrument ensuring the completeness and flexibility of legal regulation in civil law.

It:

• maintains a balance between legality and fairness;

• allows overcoming legal gaps;

• ensures protection of rights in new economic and social conditions.

President    

Republic of Kazakhstan     

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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