Commentary to article 13. Legal capacity of citizens of the Civil Code of the Republic of Kazakhstan
The legal capacity of citizens is their special legal property, their general ability recognized by law to have specific subjective civil rights (for example, ownership of a particular property) and to bear specific subjective duties (for example, obligations under a concluded contract).
Foreign citizens and stateless persons have the same legal capacity as citizens of the Republic of Kazakhstan, unless otherwise provided by legislative acts and international treaties (paragraphs 6 and 7 of art. 3 of the Civil Code). The number of restrictions on the legal capacity of foreign citizens is insignificant. For example, private property of foreign citizens, by virtue of paragraph 4 of Article 33 of the Decree on Land, cannot include land plots provided (provided) for personal subsidiary farming, gardening and cottage construction.
Unlike specific subjective rights and obligations, the set of which can be very diverse for each citizen who holds them, civil legal capacity fully belongs to each citizen. In special cases, only certain restrictions are possible, which are directly provided for by legislative acts (see paragraph 1 of Article 18 of the Civil Code). The possibility of limitation of legal capacity only by legislative acts and moreover only in exceptional cases directly follows from the norm of paragraph 1 of art. Article 39 of the Constitution of the Republic of Kazakhstan, according to which human and civil rights and freedoms may be restricted only by law and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals.
Civil legal capacity is recognized for all citizens equally. It does not depend on the citizen's origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence, education, mental abilities and any other circumstances.
It is necessary to distinguish between legal capacity and the ability to implement it as different legal properties of a citizen.
The general condition for the realization of legal capacity by the citizen himself is his legal capacity, which fully occurs when the citizen reaches the age of eighteen. It is possible to realize the legal capacity of incapacitated citizens through legal representatives who make transactions on behalf of the incapacitated (see art. 164 of the Civil Code).
In addition to the general conditions, legislation in some cases establishes special conditions for the exercise of citizens' legal capacity, for example, the availability of special education or qualifications, obtaining a license or other permit, and other circumstances provided for by law.
A citizen cannot exercise his legal capacity either personally or through representatives if the special conditions for its implementation are not met. For example, a member of a production cooperative can only be a person who has reached the age of sixteen and is able to take personal labor participation in its activities (paragraph 2 of Article 8 of the Decree on the Production Cooperative). The types of things that can belong only to certain participants in the turnover or the acquisition and alienation of which is allowed by special permission, in particular weapons, are determined by law (see art. 116 of the Civil Code).
The legal capacity of a citizen is inseparable from the very fact of human existence. From the moment of birth to death, a person is recognized as a subject of civil rights. The death of a citizen is legally considered not only the actual fact of death itself, but also the declaration of a citizen as deceased in accordance with the procedure established by law (see art. 31 of the Civil Code).
According to Article 143 of the KBS, the birth and death of a citizen are subject to state registration with the state civil registration authorities. Registration is carried out in order to protect the interests of citizens, their personal and property rights, as well as the interests of the state and has evidentiary value. The procedure for registration of acts of civil status, modification, restoration and cancellation of relevant records is determined by family law.
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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.
