Comment to Article 3. Civil legislation of the Republic of Kazakhstan of the Civil Code of the Republic of Kazakhstan  

Civil law is the legislation regulating civil relations, the scope of which is defined by art.1 of the Civil Code (see the article and the commentary to it).

In the literature and in practice, the terms "civil legislation" and "civil law" are often used in the same meaning. However, there is a very noticeable difference here. Civil law means a set of norms (rules) that regulate civil law relations, and civil legislation means a set of those legal acts in which the specified norms (rules) are formulated and expressed.  

The commented article establishes that civil legislation should be uniformly applied throughout the territory of the Republic of Kazakhstan, in all ministries and departments. Ministries, other central executive bodies, and local representative and executive bodies may not, on their own initiative, issue acts regulating civil law relations, even if the latter remain unregulated by law for some reason. They (ministries, other central executive bodies, local bodies) may issue these acts only if they are directly authorized to do so by legislation. The Authority also determines the limits of the acts and the degree of their obligation. For example, the Decree on the National Bank granted the latter the right (art. 4) to issue regulatory legal acts on issues within its competence.

Departmental acts should not contradict the legislation.  

It is known that local authorities often issue resolutions restricting the purchase and sale of real estate, the possibility of seizing any property from citizens, prohibiting the export of certain goods outside the region, etc. All such acts contradict Article 3 of the Civil Code and are invalid.  

The Civil Code uses two terms to define the legislative documents governing civil relations.:

a) "legislative acts" - laws and regulations adopted by the Parliament of the Republic of Kazakhstan, which should also include decrees adopted by the President of the Republic of Kazakhstan having the force of law.  

b) "legislation", which includes, in addition to legislative acts, regulatory decrees of the President and regulatory resolutions of the Government of the Republic of Kazakhstan. Thus, legislation is a broader (generic) concept, while legislative acts are a narrower (specific) concept. At the same time, legislative acts take precedence over the usual regulatory acts of the President, and both types of these acts take precedence over Government resolutions.  

A clear distinction between the concepts of legislative acts and legislation is of great practical importance. Thus, the reference of the Civil Code to legislative acts means that the relevant norm can only be adopted by Parliament (for example, paragraph 2 of Article 8 of the Civil Code). If there is a reference to legislation, then the relevant provision may also be contained in a presidential decree or in a Government decree (for example, art. 5 of the Civil Code).  

It should be noted that the Model Civil Code and the Civil Code of the Russian Federation use the term "law" instead of the term "legislative act", which, in our opinion, makes this concept less clear.  

The norms of civil legislation can be imperative and dispositive. The first of them are applied without fail, which cannot be changed by agreement of the parties. For example, Article 178 of the Civil Code establishes that the total limitation period is three years (paragraph 1). This is an imperative requirement, and the parties to the contract have no right to provide for a limitation period of any other duration. If they do, the three-year limitation period will still apply in the event of a dispute.

Sometimes the law specifically emphasizes the imperative nature of regulations. Thus, paragraph 2 of Article 170 of the Civil Code states; "The person who issued the power of attorney may at any time revoke the power of attorney or transfer of power of attorney, and the person to whom the power of attorney was issued may revoke it. The agreement to waive this right is invalid."  

Dispositive norms of the Civil Code allow for the possibility of changing the rule laid down in them by agreement (contract) of the parties to the legal relationship (for example, paragraph 1 of Article 359 of the Civil Code). The dispositive nature of legal norms is fully consistent with the principle of freedom of civil contract.  

The customs mentioned in the commented article are understood to mean the rules of behavior that have developed in a given area or in a given ethnic (social) group of the population regarding property or personal relations, which are generally covered by civil law regulation. Business practices are the rules that have developed in the course of entrepreneurial activity. For example, about the distribution between the seller and the buyer, located in different countries, of the costs of delivering the purchased goods.

Article 3 of the Civil Code allows the use of customs (business practices) provided that they do not contradict legislation or a contract. Thus, customs are subject to legislation and are of a dispositive nature.  

By virtue of the norms of international law recognized by Kazakhstan, all international treaties (conventions) to which Kazakhstan is a party have priority over Kazakh legislation. This means that in cases of a conflict between an international treaty and an act of Kazakh legislation, the norm of the international treaty must be applied. At the same time, an international treaty in relation to this Civil Code should be understood as an agreement between States ratified by the Republic of Kazakhstan (see paragraph 3 of Article 4 of the Constitution). This does not include all kinds of intergovernmental or interdepartmental agreements, as well as contracts sometimes concluded by the Government with various foreign corporations or with specific private firms.

If such agreements (treaties) have not been ratified by the Republic of Kazakhstan, they are not international treaties that comply with paragraph 8 of Article 3 of the Civil Code, and must comply with mandatory norms of civil legislation.  

It should be borne in mind that a treaty between States becomes an international treaty only after its entry into force. Therefore, a treaty ratified by the Republic of Kazakhstan, but not entered into force, cannot have priority over the legislation of the Republic of Kazakhstan.  

The rule on the priority of an international treaty over a local law follows from the Vienna Convention on the Law of Treaties of May 23, 1969, to which the Republic of Kazakhstan acceded by virtue of a Resolution of the Supreme Council of the Republic of Kazakhstan dated March 31, 1993.  

The commented article establishes the priority of the norms of the Civil Code over civil law norms that may be contained in other legislative acts (for example, in Laws on currency Regulation, on the protection and Support of private entrepreneurship, and others). This provision is of great practical importance, because in practice, contradictions between other laws and the norms of the Civil Code are often revealed.

The commented article grants all foreign citizens and legal entities, as well as stateless persons, the same rights and obligations as citizens of our republic when they perform actions regulated by civil law. Exceptions to this rule are possible, but only when they are established directly by legislative acts. Thus, the Law on Foreign Investments stipulates that in some areas, for reasons of national security, the activities of foreign investors may be restricted (art. 4). The Decree on land prohibited the transfer to private ownership of foreign citizens of land plots intended for personal subsidiary farming, gardening and suburban construction (art. 33). Otherwise, the rights should be equal.

The wording of paragraph 3 of the commented article has been repeatedly changed. The current version distinguishes between power relations and equal legal relations involving banks. 10. Currently, civil legislation should be applied in accordance with the Law "On Regulatory Legal Acts" of March 24, 1998.

Comments on The Civil Code The Code of Criminal Procedure The Criminal Code The Normative resolution of the Supreme Court The criminal legislation The normative legal acts of the Republic of Kazakhstan  

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.

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