Comment to article 9. Protection of civil rights The Civil Code of the Republic of Kazakhstan
The protection of civil rights is a system of measures provided for by law aimed at ensuring the inviolability of the right, its feasibility, restoration in case of violation and elimination of the consequences of violation.
The commented article defines the bodies responsible for the protection of the right, the means (methods) and the procedure for protection. The commented article refers to such bodies not only the state, but also the arbitration (arbitration) court, i.e. the body or person elected by the parties to the conflict as a judge, whose decision they undertake to recognize and execute (see art. 17 of the CPC, the Regulation on the Arbitration Court, Appendix No. 3 of the CPC of the Kazakh SSR, the Model Regulation on Arbitration court for the settlement of economic disputes, approved by Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated May 4, 1993 No. 356).
According to the established order in our society, citizens and legal entities often turn to various state bodies of general or special competence for protection of violated rights. Such appeals are often attracted by the fact that they do not require payment of a state fee; the entire complaint resolution procedure is simplified and shortened in time. But such treatment does not deprive victims of human rights violations of judicial protection. It is possible to apply to the court at any time, both before the state body makes any decision on the disputed issue, and after such a decision. At the same time, the court is not bound by an administrative decision. An exception to this rule can only be established by legislative acts.
Thus, Article 165 of the Tax Decree provides for mandatory administrative appeals against improper actions of the tax service before a claim for the refund of improperly collected taxes can be brought to court.
The commented article also lists the main ways to protect civil rights. The first among them is the recognition of the right, which means that the competent authority confirms the fact that this civil right belongs to this person. Recognition can prevent the violation of a right, stop disputes about who owns a particular right, end uncertainty about the ownership of property, etc. It is possible, for example, to recognize the right of owners to a residential building, to recognize someone as the author of a literary work, etc.
Recognition often serves as a prerequisite for the application of other methods of protecting the right. For example, when considering a citizen's claim for the seizure of property illegally held by another person, the court first recognizes the plaintiff as the owner of the disputed item, and then decides to remove it from someone else's possession and transfer it to the owner. But it is possible to recognize a right that is not directly related to the use of other ways to protect it. Recognition of a right is permissible even before its violation, if it is disputed by someone or if there is a real threat of its violation in the future.
Restoration of the situation that existed before the violation of the right, as a way to protect it, consists in performing actions that eliminate the results of the violation, as a result of which the right is restored to its former (pre-existing) state. For example, illegally confiscated property is returned to the owner.
The suppression of actions that violate the law consists in prohibiting or preventing their commission. Usually, such a measure of protection leads to the cessation of illegal behavior and to the restoration of the situation that existed before the violation of the right.
The award of an obligation in kind means the protection of a right by forcibly performing exactly the action that was originally the subject of another person's obligation. This method of protecting the right ensures the real fulfillment of a civil obligation.
Termination of a legal relationship is reduced to the termination of the powers and duties of its participants. At the same time, the violator loses the benefit that he previously enjoyed. The threat of such deprivation leads to the termination of the violation of the right belonging to another participant in the obligation, which ensures its protection. For example, the lease agreement for residential premises is terminated if it is not used for its intended purpose.
Changing a legal relationship means changing its content in a way that provides more complete protection of the violated right. If, for example, products of inadequate quality are systematically supplied, the buyer has the right to change the order of execution of the contract: instead of paying for the product before receiving it, proceed to payment only after the product has been accepted and its quality has been checked.
A common way to protect a right is to compensate for damages caused by a violation. At the same time, the material damage caused by the violator is compensated in monetary form. The application of this measure follows directly from the law. Therefore, damages can be collected in all cases of property damage caused by the violator. The recovery of damages is not applied only in cases directly provided for by law, when the protection of the right is provided by other means.
The concept of a penalty as a method of protecting a right is defined by art. 293 of the Civil Code (see the article and commentary to it). The penalty differs from losses in that it is collected only in cases stipulated by law or contract. Its size is determined in advance in relation to a particular type of violation.
Invalidation of a transaction as a way to protect civil rights is discussed in detail in Chapter 4 of the Civil Code on transactions.
The commented article also provides for the invalidation of an act of a state body (obviously both a normative and non-normative act) that contradicts the law. But such recognition as a way of protecting civil law must be related to a specific violation and comes down to the fact that the court implements measures to protect the right, without taking into account the illegal act, i.e. considering it invalid.
A special way to protect a violated civil right is compensation for moral damage, i.e. monetary compensation for physical or moral suffering inflicted on a person. Compensation for moral damage does not prevent compensation for property damage, even if moral and material damage were caused by the same action of the violator.
As a general rule, self-defense of violated rights (including, of course, civil rights) is not allowed. Moreover, an unauthorized act aimed at protecting a right is an offense that may result in the application of state measures against such a person, up to and including bringing him to criminal responsibility for arbitrariness (see art. 327 of the Criminal Code).
But in special cases, the law allows, under certain conditions, citizens to legal entities whose rights have been violated to restore them by their own actions, without resorting to the assistance of special protection agencies. Such actions can be called self-defense measures. More precisely, self-defense of a right is the unilateral actions of an interested person permitted by law, aimed at ensuring the inviolability of the right, its exercise, restoration in case of violation and elimination of the consequences of violation. Article 919 of the Civil Code, for example, recognizes necessary defense as a legitimate measure, i.e. committing actions aimed at protecting legitimate interests from criminal encroachment by causing harm to the encroaching person.
The means of self-defense include, first of all, the actions of the victim himself, directly addressed to the violator and ensuring the restoration of violated civil rights: the commission store withholding the remuneration due to him from the amounts to be retaken to the citizen who handed over the item to the store for sale (art. 872 of the Civil Code), the recipient retaining the amount of the deposit in case of violation of the contract by the depositor (para. 2 art. 338 of the Civil Code).
For the first time, the Civil Code in the commented article confirms the legality of such a remedy as compensation for damages caused by the issuance of an illegal act by a public authority or by the actions of an official of such authorities. The basis for filing a claim is the very fact of the issuance of the relevant act (commission of the relevant action) and the causal relationship between these actions and losses. It doesn't matter who prepared or issued the act, it's only important that it be illegal. The property status of the relevant State body or official is also not taken into account, since the compensation is at the expense of the State budget.
Compensation for damages does not prevent the collection of a fine provided for in the commented article from the relevant official or government agency. The amount of the fine and the clear grounds for its collection must be determined by legislative acts.
The possibility of defending a right sometimes depends on the guilt of the violator. The concept of guilt and its forms are considered by art. 359 of the Civil Code. A person who has suffered a violation of the law should not prove the guilt of the violator, since it is assumed by virtue of the very fact of the violation.
Thus, unlike criminal law, which proceeds from the presumption of innocence of the accused, civil law is based on the presumption of guilt of the violator of someone else's right. The victim, who has proved the fact of the violation itself, is not obliged to prove the guilt of the violator. On the contrary, in order to be released from liability, the violator must prove that he is not guilty of the violation.
When defending a right, not only the guilt of the violator can be taken into account, but also the guilt of the victim himself. The impact of the victim's guilt on the protection of the right from violation and on the responsibility of the violator is based on the provisions of art. 364 of the Civil Code.
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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.
