Comment to Article 116. Turnover of objects of civil rights of the Civil Code of the Republic of Kazakhstan
The turnover of objects of civil rights is understood as their legal ability to be alienated (transferred) in accordance with the established procedure from one legal entity to another. The turnover of objects of civil rights is a legal form of economic turnover of goods as a necessary aspect of a market economy. Some norms of civil law, for example, the norms on the supply contract speak about the alienation of goods, not property.
All types of property are considered negotiable, with the exception of those that have been withdrawn from circulation by legislative acts.
The commented article contains rules on the turnover of property. The turnover of a number of objects of civil rights is also regulated by the norms of the Civil Code or special legislative acts. For example, the turnover of land plots and land use rights is determined by the Decree on Land; the procedure for transferring securities rights is defined by Article 132 of the Civil Code and the Securities Act; the turnover of currency valuables is regulated by the Law on Currency Regulation; the turnover of property rights of authors is regulated by the Law on Copyright and Related Rights; The procedure for the transfer of rights to inventions is established by the Patent Law of the Republic of Kazakhstan, and for trademarks and service marks - by the Law on Trademarks, Service Marks and Appellations of Origin.
According to paragraph 1 of the commented article, objects of civil rights can be freely alienated or transferred from one person to another by way of succession, if they are not withdrawn from circulation or are not limited in circulation. The alienation of objects of civil rights in the sense of the article being commented on should be understood as the transfer of property to ownership (economic management, operational management) from one legal entity to another through transactions, as well as its transfer for a certain period under lease agreements, loans, etc. contracts.
By the transfer of things in the order of succession, the commented article means universal succession, i.e. the transfer of the entire property complex belonging to one person to another person by inheritance (see Section VIII of the Civil Code of the Kazakh SSR) or during the reorganization of a legal entity (see Article 46 of the Civil Code).
In accordance with paragraph 4 of the commented article, personal non-property benefits and rights have been withdrawn from civil circulation, with the exception of cases established by legislative acts.
The types of things whose alienation by civil law methods is not allowed, i.e. things withdrawn from circulation, according to paragraph 2 of the commented article, must be explicitly specified in legislative acts. The withdrawal of things from circulation by other normative legal acts, except legislative ones, is not allowed. The number of items withdrawn from circulation in a market economy is extremely limited, and they are usually State property. These are mainly natural objects. For example, by virtue of paragraph 3 of art. 39 of the Decree on Land does not allow transactions in respect of land use rights, including its alienation, on public lands, lands provided for defense, and some other lands. These lands, which are State property, may be granted for use not on the basis of civil law transactions, but on the basis of administrative acts.
The state awards of the Republic of Kazakhstan - orders, medals and badges for honorary titles - have been withdrawn from civil circulation. According to Article 43 of the Decree of the President of the Republic of Kazakhstan, which has the force of law, "On State Awards of the Republic of Kazakhstan" dated December 12, 1995, the purchase, sale, exchange or other retaliatory transfer of an order, medal and badge to an honorary title of the Republic of Kazakhstan, as well as the commission of other illegal actions in relation to state awards entail liability established by law.
Things whose very existence is prohibited by law, for example, pornographic products, counterfeit banknotes, may not be in circulation.
Paragraph 3 of the commented article refers to things with limited turnover, firstly, things that can belong only to certain participants in the turnover, and secondly, things the acquisition and alienation of which is allowed by special permission. Not only things can be of limited turnover, as indicated in paragraph 3 of the commented article, but also other property, for example, works, services. This is explicitly stated in paragraph 4 of Article 10 of the Civil Code. It establishes that the production and sale of certain types of goods, works or services for reasons of State security, law enforcement, environmental protection, property, life and health of citizens are carried out under state licenses.
The range of types of property that can be sold by entrepreneurs only under licenses is defined by the Decree on Licensing with numerous subsequent additions. This includes, for example, the sale of weapons and ammunition, explosives and pyrotechnic substances and products with their use, products containing radioactive substances, hunting and sporting firearms, and a number of other types of property. The production of a number of works and services is also licensed, which makes them highly marketable. For example, the production, repair and construction of gasification of residential and communal facilities, disinfection and deodorization of industrial and residential and civil facilities, transportation of passengers and cargo by rail, sea, river, air and road transport, production and operation of catering facilities, as well as a number of other works and services are licensed.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
