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Civil Legislation of the Republic of Kazakhstan
General Analysis and Purpose of the Norm
Article 3 of the Civil Code (CC) of the Republic of Kazakhstan defines the foundations of the system of sources of civil law, as well as the priorities of the hierarchy of norms, including the correlation between national and international law. This norm is system-forming for the understanding and application of civil legislation as a legal system, and also serves as a key for the interpretation of other civil law provisions.
📌 Commentary by Paragraphs
Paragraph 1. Sources of Civil Legislation
Paragraph 1 establishes that civil legislation is based on:
- The Constitution of the Republic of Kazakhstan (see Articles 6, 13, 26 of the Constitution);
- The Civil Code of the Republic of Kazakhstan (General and Special Parts);
- Laws and presidential decrees having the force of law;
- Resolutions of Parliament, the Senate, and the Mazhilis;
- Subordinate acts: presidential decrees, government resolutions.
📌 Practical example: In the case on invalidating a lease agreement (case No. 2-1385/2020, Almaty), the court directly applied CC provisions, despite the existence of instructions from the akimat, referring to the priority of the Civil Code over acts of local authorities.
📎 Related norms:
- Article 4 CC RK (on the application of civil legislation)
- Article 4 of the Constitution RK (on the supremacy of the Constitution and international treaties)
- Law of the Republic of Kazakhstan “On Normative Legal Acts” dated April 6, 2016 No. 480-V
Paragraph 2. Priority of the CC RK over other acts
If another law or act contains civil-law provisions contradicting the CC RK, the norms of the CC apply.
📌 Example: If a sectoral law (e.g., “On Protection of Consumer Rights”) contains provisions limiting or expanding civil legal capacity, they may only be applied after alignment with the CC.
📎 Judicial practice: In the 2022 Review of the Supreme Court of the RK (para. 3 regarding the application of civil legislation), it was stated that in case of conflicting norms, the CC applies as the basic law.
Paragraph 3. Relations in the sphere of banks and grain-receiving enterprises
Special regulation of these sectors is permitted only within the framework not contradicting the CC, with legislative acts prevailing.
📌 Example: In the case of a bank’s insolvency, the Law of the Republic of Kazakhstan “On the Recovery of Solvency and Bankruptcy of Banks” dated November 24, 2015 No. 422-V is applied, while CC provisions (e.g., on liquidation of a legal entity) are applied subsidiarily if not covered by the special law.
📎 Related acts:
- Law “On Banks and Banking Activities” dated August 31, 1995 No. 2444
- Law “On Grain-Receiving Enterprises” dated January 19, 2001 No. 143-II
Paragraph 4. Business Customs
The use of business customs in regulating civil relations is permitted if they do not contradict existing legislation.
📌 Practice: In disputes between business partners, courts often refer to “business customs,” for instance regarding performance of obligations or delivery deadlines, provided this complies with Article 6 CC RK.
📎 Related norm: Article 6 CC RK (on applying custom where there is a gap in law)
Paragraph 5. Acts of Executive Authorities
Ministries and akimats may issue acts regulating civil relations only if this is expressly provided for by the CC or other laws.
📌 Example: The order of the Ministry of Industry and Infrastructural Development of the RK on registration of rights to real estate is valid if it does not exceed the powers established by Article 117-1 CC RK.
Paragraph 6. Invalidity of Acts Restricting Rights
Any act restricting rights granted by the CC or laws is void from the moment of its adoption.
📌 Judicial practice: In the case on invalidating the akimat’s decision restricting land rights (No. 2-7813/2021), the court referred to this paragraph, noting that a subordinate act cannot alter or revoke rights established by law.
📎 Constitutional basis: Article 13 of the Constitution RK (everyone has the right to judicial protection of their rights and freedoms)
Paragraph 7. Legal Status of Foreign Persons
Foreign citizens and legal entities enjoy national treatment unless otherwise provided by law.
📌 Example: A foreign company has the right to conclude a lease agreement, invest in real estate, and apply to RK courts on the same grounds as a Kazakhstani entity, except for special restrictions (e.g., prohibition on purchasing agricultural land).
📎 Related norms:
- Law “On Investments” dated January 8, 2003 No. 373-II
- Article 111 CC RK (legal capacity of foreign persons)
Paragraph 8. Application of International Treaties
If the norms of an international treaty of the RK differ from the provisions of the CC, the international treaty applies.
📌 Examples of international treaties:
- UN Convention on Contracts for the International Sale of Goods (Vienna, 1980)
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
📌 Judicial practice: In the practice of the International Arbitration Court at the Chamber of Commerce and Industry of the RK, the 1980 Vienna Convention is often applied instead of the CC RK, if this is stipulated by the parties’ agreement.
📎 Constitutional basis: Article 4 of the Constitution RK (ratified international treaties have priority)
Conclusion: Legal Significance of Article 3 CC RK
Article 3 CC RK:
- Establishes the priority of CC provisions;
- Ensures stability and systematization of regulation;
- Guarantees the application of international standards;
- Protects the rights of individuals from arbitrary subordinate acts.
This is a fundamental article necessary for interpreting any act of civil legislation in Kazakhstan.
Attention!
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