Commentary to article 111. Participation of the Republic of Kazakhstan in civil law relations of the Civil Code of the Republic of Kazakhstan
The Republic of Kazakhstan is not a legal entity. However, as a special entity, it has all the rights of a subject of civil law relations and is limited in legal personality only by the legislation it has adopted.
Equal principles in relations with other subjects of civil law relations mean the absence, as a general rule, of priorities in the legal status of various subjects and the absence of priorities for the court in resolving a dispute involving the Republic of Kazakhstan. The Republic of Kazakhstan does not use its powers in civil law relations, and the norms of civil legislation fully apply to it.
The State establishes restrictions on participation in civil turnover by legislative acts. Thus, the State cannot be a full partner in full and limited partnerships.
On behalf of the Republic of Kazakhstan, only those state bodies that are directly authorized by law can enter into civil law relations. The bodies that have the right to act in civil matters on behalf of the republic primarily include the Parliament, the President, the Government, and republican executive bodies (ministries, state committees).
Government agencies have the status of an institution. Therefore, it is necessary to distinguish when they act as institutions on their own behalf, and when they act as public authorities or management bodies on behalf of the Republic of Kazakhstan. In both cases, their legal capacity is special and determined by their competence.
A transaction made by an unauthorized body on behalf of the State is invalid and does not entail property obligations for the Republic of Kazakhstan.
In cases defined by law, an administrative-territorial unit may act in civil relations on behalf of the State.
In cases and in accordance with the procedure provided for by law, non-governmental legal entities and citizens may act on its behalf on special instructions from the Republic of Kazakhstan. For example, a state-owned joint-stock company appoints a person authorized on behalf of the state to perform the functions of a state shareholder.
The State cannot be a party to a transaction with respect to property fixed on the balance sheet of a State-owned legal entity. The object of a transaction involving the state may be treasury property, objects of exclusive state ownership and its non-property rights related to property rights, as well as special objects provided for by legislation on privatization.
In case of privatization, the state may act independently or in the person of an authorized state body as the seller of the enterprise as a whole, the state block of shares or the property of the liquidated enterprise. The specifics of the State's participation in such civil law relations are determined by the legislation on privatization.
Disputes involving the Republic of Kazakhstan are generally considered by state courts. However, at the request of the parties, the dispute may be considered by an arbitration court, the decision of which is final and secured by State courts.
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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.
