Commentary to article 11. Inadmissibility of abuse of freedom of entrepreneurship The Civil Code of the Republic of Kazakhstan
The commentary to Article 10 stated that unbridled freedom of entrepreneurship can lead to the satisfaction of unlawful interests of entrepreneurs at the expense of infringing on the interests of consumers and the whole society. Such actions are especially dangerous when an entrepreneur has a monopolistic position in the market, without guaranteed freedom of competition. In all areas of the market economy, free competition on an equal footing protects not only the interests of consumers, allowing them to choose the most convenient and favorable conditions for them to purchase goods, but also the interests of the republic as a whole, allowing them to select the most profitable options for the development of productive forces (when choosing foreign investors, subsoil users, contractors of construction programs, buyers of privatized enterprises, etc. etc.). That is why the commented article prohibits monopolistic and any other activities aimed at limiting or eliminating competition, or obtaining unreasonable market advantages.
Article 26 of the Constitution of the Republic of Kazakhstan stipulates that monopolistic activity is regulated and limited by law, and unfair competition is prohibited.
The Republic of Kazakhstan has special Laws "On Freedom of economic activity and development of entrepreneurship" dated December 11, 1990 and "On Development of Competition and restriction of monopolistic activity" dated June 11, 1991.
It is for this purpose that legislation prohibits the refusal to register new business structures based on the saturation of the market with certain goods, and to refuse to issue licenses for those types of activities that increase competition.
The article under review provides for specific measures to combat monopolism and unfair competition.
However, it should be borne in mind that in many areas of the economy, the monopolistic position of enterprises has developed historically, since the entire economy has been in the hands of one global monopolist for decades - the state. Therefore, the fight against monopolism is largely carried out through the privatization of state-owned enterprises, which are transferred from a single owner, the state, to the ownership of various private individuals who will compete in the market.
At the same time, practice has put forward the concept of "natural monopolism", i.e. the concentration in the hands of one owner of a system of production facilities inextricably linked by technological process into a single production and technological complex serving the entire region or even the entire republic. Such complexes, for example, should include a unified energy system, a common railway network, a telephone, postal, etc. communication system. In these areas, at least in modern economic conditions, monopolism persists.
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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.
