Comment to Article 221. Division of jointly owned property and allocation of a share from it of the Civil Code of the Republic of Kazakhstan
Participants in joint ownership do not have certain shares in the right of joint ownership. Therefore, in accordance with paragraph 1 of the commented article, a necessary precondition for the division and allocation of shares in joint ownership is their definition, after which joint ownership becomes similar in its characteristics to shared ownership. This makes it possible to actually carry out the division and separation of property from common joint ownership.
Although the preliminary determination of shares in joint ownership is a necessary stage of the division and allocation of shares in joint ownership, this stage has an auxiliary rather than an independent meaning, and if the division and allocation of shares in joint ownership does not take place for any reason, the definition of shares in joint ownership also loses its significance, and the joint ownership itself does not it turns into a shared one.
The process of determining shares in joint ownership is usually combined in time with the subsequent division or allocation of shares in joint ownership. In the judicial review of a dispute on the division and allocation of shares in joint ownership, the determination of shares in the right and the division and allocation of shares in joint ownership are combined in one judicial process.
After the division, common ownership of the property ceases, and after the allocation, the remaining owners retain joint ownership of the property from which a part is allocated, unless the co-owners wish to convert their joint ownership into shared ownership and agree on this.
With subsequent divisions and allotments from the remaining joint ownership, the procedure for pre-allocation of ownership shares is repeated again.
In the case of division of joint ownership, as well as in the case of allocation of shares from it by virtue of paragraph 2 of the commented article, the shares of participants in common ownership are recognized as equal, unless otherwise provided by legislative acts or agreement of the participants. For example, Article 22 of the KBS allows in some cases the possibility of departing from the principles of equality of the spouses' shares in common joint ownership, taking into account the interests of minor children or the noteworthy interests of one of the spouses.
Since, after determining the shares in common joint ownership, it acquires a great similarity to shared ownership, paragraph 3 of the commented article indicates that the grounds and procedure for dividing common property owned jointly and allocating shares from it are determined according to the rules of art. 218 of the Civil Code, which regulates the division of property owned jointly and the allocation of shares from it. in it, since for certain types of joint ownership nothing else is established by the Civil Code, other legislative acts and does not follow from the essence of the relations of the participants in joint ownership. Therefore, for the reasons and procedure for dividing jointly owned property and allocating a share from it, see Articles 218 of the Civil Code and the commentary thereto, and for certain types of joint ownership, see also Articles 223-227 of the Civil Code and the commentary to these articles.
Конституция Заң Кодекс Норматив Жарлық Бұйрық Шешім Қаулы Адвокат Алматы Заңгер Қорғаушы Заң қызметі Құқық қорғау Құқықтық қөмек Заңгерлік кеңсе Азаматтық істері Қылмыстық істері Әкімшілік істері Арбитраж даулары Заңгерлік кеңес Заңгер Адвокаттық кеңсе Қазақстан Қорғаушы Заң компаниясы
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.
