Commentary to article 166. Commercial representation The Civil Code of the Republic of Kazakhstan  

A commercial representative is a person who permanently and independently represents entrepreneurs when they conclude contracts in the field of entrepreneurial activity, who is not in an employment relationship with the represented person, acts on the basis of a written contract with the latter, receives remuneration for his activities and is obliged to act in the execution of the assignment given to him with the care of an ordinary entrepreneur. A commercial representative office is an independent type of business activity.

Commercial representatives can be both legal entities and citizens. Commercial representatives are, for example, brokers and other professional participants in the securities market when conducting transactions on the stock exchange on behalf of and on behalf of the represented entrepreneurs on the basis of a long-term agreement; professional participants in the securities market who manage the client's securities package under the agreement.; trust managers who, on the basis of a contract, manage the money and other assets of the principal on behalf of the latter, including banks that perform trust operations on behalf of the client.  

A commercial representative carries out entrepreneurial activity, and therefore is subject to all the features of the legal regulation of entrepreneurial activity provided for by law, in particular, the provisions of articles on early fulfillment of obligations related to entrepreneurial activity (see commentary to art. 279 of the Civil Code), on the fulfillment of a joint obligation related to entrepreneurial activity (see commentary to art. 287 of the Civil Code), on the liability of persons who have not fulfilled or improperly fulfilled an obligation in carrying out business activities (see commentary to art. 359 of the Civil Code), on the liability of the debtor for the actions or omissions of third parties (see commentary to art. 363 of the Civil Code).

The procedure for payment, the amount of remuneration to the commercial representative and the procedure for reimbursement of expenses incurred by him during the execution of the assignment, the procedure for the distribution of responsibilities for payment of remuneration and reimbursement of costs between the persons represented by the commercial representative is determined by agreement of the parties. At the same time, P. 3 of the commented article contains a compensatory provision on the procedure for distributing equal shares of remuneration to a commercial representative and reimbursement of costs incurred by him among entrepreneurs whose interests were represented by a commercial representative in the execution of the assignment.

Paragraph 4 establishes that information about trade transactions that became known to a commercial representative during the execution of an assignment given to him is a commercial (business) secret. This provision is a development of the provisions of paragraph 5 of Article 10 of the Civil Code, which provides for the possibility of establishing in legislation a list of information constituting a commercial (business) secret. The commercial representative is obliged to keep this information secret both during the execution of the order and after its execution. Failure to comply with the secrecy requirement is the basis for the liability of a commercial representative for damages caused by the disclosure of commercial (business) secrets.

The specifics of commercial representation in certain areas of entrepreneurial activity may be established by law. In particular, the banking legislation contains the specifics of trust operations, and the securities market legislation contains the specifics of the activities of professional securities market participants.

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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.