Comment to Article 188. The concept and content of property rights of the Civil Code of the Republic of Kazakhstan
Ownership is a relationship about appropriation. The relationship of appropriation, regulated by the norms of law, is the right of ownership.
Paragraph 1 of the commented article defines the subject as the owner and identifies four characteristic features of the owner's right to own, use and dispose:
1) legislative acts should recognize this right.;
2) legislative acts should protect this right.;
3) the exercise of property rights by the owner at his discretion;
4) the exercise of property rights by the owner in relation to the property belonging to him.
A recognized right means that it does not contradict its current legal system.
A protected right means its protection by the norms of legislative acts.
The exercise of powers at one's discretion means that the freedom of action of the owner is limited only by legislative acts.
By property owned by the owner, paragraph 1 of the commented article refers to objects owned by the owner. At the same time, property is not understood in a broad sense as property rights (see commentary to Article 115 of the Civil Code), but in a narrow sense - things, cash and documentary securities. Accordingly, electronic money, undocumented securities, works, services, objectified results of creative intellectual activity, brand names, trademarks and other means of individualization of products, property rights and some other property are not regulated by the rules of Section 2 of the Civil Code.
The owner has the right to dispose of his property in the most absolute manner. All other rights outside of the property right are derived from it, dependent on it, and cannot be broader in scope than the primary right. The owner has all the rights listed in the commented article. He may even destroy his property, provided that this does not violate the requirements of the law, as well as the rights and legally protected interests of others.
It is possible that the owner is legally deprived of the rights of ownership, use and disposal at the same time (for example, when the property is seized or the owner transfers all three powers under the contract). But even in this case, the owner does not lose ownership rights. This means that in addition to the three real rights listed in this article, the owner has a title right, which can only be alienated by him voluntarily under a contract with the loss of ownership or withdrawn in connection with the forced termination of ownership on the grounds provided for by the Civil Code.
The right of ownership exists only within the limits recognized by the State. This means that the absolute right of ownership may be limited by legislative acts. In some cases, restrictions on property rights are of a special nature, due to the special legal regime of the property owned. Thus, individual objects of civil rights may be completely or partially withdrawn from civil circulation, which explains the existence of restrictions on the rights to such property (for example, land, forests, radioactive substances, etc.).
The limitation of the ownership right itself should be distinguished from the limitation of the range of actions that the owner can perform. In particular, a number of prohibitions on the actions of the owner arise from fire, sanitary, veterinary, epidemiological and other rules. Thus, the owner who sells food products must undergo an appropriate medical examination, his workplace must be located on a specially equipped territory, etc.
In accordance with paragraph 4 of the commented article, the owner should not abuse his monopoly or other dominant position. The criteria that make it possible to identify the fact of abuse of a monopoly position are defined in the antimonopoly legislation. Antimonopoly legislation defines the bodies that control the dominant position in the market and the sanctions applied to violators of antimonopoly legislation.
The measures that the owner must take to prevent damage to the environment are determined by environmental legislation. It also provides criteria for violations of environmental legislation, bodies that monitor its compliance, and other legal mechanisms that ensure environmental legislation.
The principle of perpetuity means that the right of ownership cannot arise under the condition of its temporality, which means that one cannot be an owner for a while. The right of ownership, in accordance with the legal concept adopted in the Republic of Kazakhstan, is an absolute perpetual right.
The principle of perpetuity of the right of ownership presupposes its exercise by the owner in his own interests and at his discretion. For these reasons, the Kazakh legislation does not accept the institution of trust - the right of trust ownership, according to which the original owner transfers his property to another person in trust ownership, but with the condition to use it strictly for its intended purpose in the interests of a third party beneficiary.
The owner may transfer his property into trust management to another person (the trustee). The transfer of property into trust management does not entail the transfer of ownership to the trustee, who is obliged to manage the property in the interests of the owner or a third party designated by him.
It should be noted that the right of ownership can be forcibly terminated only on the grounds provided for by the Civil Code. Accordingly, all grounds for compulsory termination of ownership that are not provided for by the Civil Code and contained in other legislation (for example, tax, banking or customs) are not subject to application as illegal.
Paragraph 6 of the commented article corresponds to paragraph 4 of the same article. The Civil Code calls the owner's admission of limited use of his property by other persons an easement. The motives for establishing an easement can be very different. Most often, in practice, we are talking about the right of passage through someone else's land when it is otherwise impossible to access one's own land or public facilities (road, store, airport, etc.). All possible cases of easements, as a general rule, can only be provided for at the level of legislative acts or a contract. Land legislation also allows for the establishment of an easement on the basis of a subordinate regulatory act. The grounds for the emergence of an easement on land plots are established by art. 47 of the Decree on Land.
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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.
