Comment to article 305. The pledgor of the Civil Code of the Republic of Kazakhstan
If the pledgee can only be the creditor of the main obligation, then both the debtor of the main obligation and a third party (the so-called real surety) who has expressed a desire to transfer his property to secure the debtor's obligations can act as the pledgor. In the latter case, the pledge agreement with the creditor is concluded not by the debtor, but by a third party, who, as the pledgor, acquires the same rights after the sale of the pledged property that arise from the guarantor as a result of his fulfillment of obligations for the debtor (see commentary to Articles 334, 344 of the Civil Code).
The pledgor of a thing, as a general rule, may be the owner or, with the consent of the owner, the person who has the right of economic management to it. In case of violation of this rule, the lien right of the creditor to whom the pledged object has been transferred is retained only on condition that the pledged property cannot be claimed from him by the owner in accordance with the rules of Articles 260, 261 of the Civil Code. Otherwise, the pledge agreement may be declared invalid at the request of an interested party, for example, the owner when claiming property from someone else's illegal possession.
At the same time, legislative acts may provide for cases when the pledgor is a person other than the owner of the thing, or a person who has the right to manage it. An example of such a case is the right of an institution, if the constituent documents grant the institution the right to carry out income-generating activities, independently dispose of such income and property acquired from these incomes, including providing them as collateral (see the commentary to art. 206 of the Civil Code).
A person who has property under the right of economic management may, as a general rule, pledge an item only with the consent of the owner, unless otherwise provided by legislative acts. In accordance with legislative acts, in particular, in accordance with art. 200 of the Civil Code, as well as art. 25 of the Decree on a state-owned enterprise, a person who has the right to economic management of property (a state-owned enterprise) has the right to independently pledge movable property not related to fixed assets, unless legislation provides for restrictions or prohibitions on the provision of movable property not related to fixed assets or its individual types. It should also be borne in mind that, in accordance with art. 6 of the Decree on a state-owned enterprise, the charter should contain information about the powers of the head of a state-owned enterprise and that the charter may also provide for restrictions or prohibitions on the provision of movable property, not related to fixed assets, or certain types of it.
In accordance with Article 12 of the Decree on a state-owned enterprise, the pledge of a republican state-owned enterprise as a single property complex is made by decision of the Government of the Republic of Kazakhstan, a similar pledge of a municipal enterprise is made by decision of the head of the local administration.
The pledgor of the property right may be the person to whom the pledged right belongs. For example, a land user may be the mortgagor of a land use right, but not the owner of the land plot. The owner of the land plot may pledge the land plot. The owner of the land plot may also conclude an agreement on the transfer of the land plot to the creditor for land use or the paid transfer of the land plot for use (for lease, but not alienation or pledge of the land plot) in order to provide satisfaction to the creditor from the proceeds in case of default by the debtor on the main obligation. Such transactions will be the means of securing provided for in the contract, but will not relate to the pledge of property rights.
Since the pledge agreement presupposes the sale of the pledged object in the event of non-fulfillment by the debtor of obligations under the main agreement, the pledge of rights to someone else's thing, the alienation of which is prohibited by legislation or contract without the consent of the owner or the person having the right to economic management, is not allowed.
As a general rule, the lease right cannot be assigned (alienated) by the lessee without the lessor's consent, therefore, the lease right cannot be pledged without the lessor's consent. But in some cases, there are exceptions. For example, in accordance with the Decree on Land, non-governmental land users with the right of permanent and primary long-term land use have the right to alienate their land use rights (to assign rights under a land use agreement, including lease), as well as to lease land plots (or parts thereof) for rent (subletting) or for temporary gratuitous land use. Consequently, they also have the right to pledge their lease (sublease) rights to a land plot without the consent of the landlord.
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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.
