Comment to article 309. The property to which the rights of the pledgee of the Civil Code of the Republic of Kazakhstan apply  

The right of pledge (see commentary to Art. 310 of the Civil Code) to a thing that is the subject of pledge extends to its ownership and to inseparable fruits. A different procedure for determining the limits of the right of pledge, limiting the rights of pledge to belonging or inseparable fruits, or excluding them from the pledged property may be provided for by an agreement or legislative act.

Separable fruits, products and incomes resulting from the use of pledged property are not generally included in the subject of pledge and are not subject to the right of pledge. The right of pledge for separable fruits, products and incomes obtained as a result of the use of the pledged property applies only in cases where this is provided for by the contract or legislative acts. At the same time, there are some restrictions on separable fruits when mortgaging real estate (see the commentary to art. 303 of the Civil Code).

When mortgaging an enterprise or other property complex as a whole, the right of pledge extends to all its constituent property, movable and immovable, including land or land use rights, money, including in foreign currency, securities owned by the enterprise, objectified results of creative intellectual activity, brand names, trademarks and other means individualization of products, property rights and other property, including those acquired during the mortgage period. An exception to this rule or another procedure for extending the right of pledge to the property of an enterprise or other property complex may be established by an agreement or legislative acts.

The position of P. 3 of the commented article was further developed in the Decree on the Mortgage of Immovable Property and the Decree on Land, which establish the principle of inseparability of ownership of buildings and structures and ownership or permanent land use rights to the land on which buildings or structures are located, or to that part of the divisible plot that is occupied by such buildings and structures and It is necessary for their operation, as well as a ban on the alienation of ownership rights (permanent land use rights) to a land plot that is occupied by buildings or structures., or which is necessary for their operation, without alienating the rights to such buildings or structures.

Due to the inseparability of ownership of buildings and structures and ownership or permanent land use rights to a land plot, when a building or structure is mortgaged, the mortgage of the land plot or permanent land use rights on which this building or structure is located, or on a part of this plot, functionally providing the mortgaged object, occurs simultaneously. At the same time, it is necessary to keep in mind another imperative provision arising from the principle of continuity of rights to buildings and structures and rights to a land plot established in relation to a land user (non-owner of a land plot) - in the case of a ban on the alienation of land use rights, the land user does not have the right to alienate buildings and structures located on the land plot, and therefore he has no right to mortgage either the right of land use or buildings and structures located on the land (see Article 18 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.