Commentary to article 167. Attorney The Civil Code of the Republic of Kazakhstan
A power of attorney is a document in which the authority to carry out representation on behalf of another or several persons who issued such a document is recorded in writing (for the concept of representation, see art. 163 of the Civil Code and the commentary thereto). It is issued for the relations of a representative on behalf of the represented with other persons who, on the basis of a power of attorney, are certified of the authority, that is, the granting of the representative the right to act on behalf of the represented, and of the powers, that is, in their content and the limits to which the representative is entitled to represent the represented (see the comment to paragraph 1 art. 163 of the Civil Code).
The types of powers of attorney vary in the scope and content of the powers conferred by the attorney. A power of attorney can be issued for: a) performing one specific legally significant action (for example, concluding a purchase and sale agreement for a certain apartment); b) performing the same actions for a certain time (for example, permanently representing the interests of a shareholder in the management of a joint-stock company for a certain time, in order for the cashier to receive a monthly salary from the bank); c) to exercise a whole range of the principal's property rights and obligations for a long time (for example, managing the principal's property, representing the interests of a legal entity at the location of a branch or representative office).
The nature of the power of attorney presupposes the will of one person, the principal, and the volitional actions of another, the attorney. Therefore, the principal and the attorney must have full legal capacity. The absence or limitation of the legal capacity of the principal or attorney is the basis for termination of the power of attorney (see commentary to art. 170 of the Civil Code).
As a general rule, a power of attorney must be executed in simple written form. A notarized power of attorney is required in cases where it is issued for the management of property or for transactions requiring notarization. At the same time, the rule on notarization of powers of attorney for property management contains a reservation about the possibility of establishing an exception based on legislative acts, which include the Civil Code itself. A similar exception, for example, is contained in paragraphs 3, 4 and 6 of the commented article.
Paragraph 3 of the commented article establishes cases when powers of attorney issued in a special way can replace the notarized power of attorney required in this case. Such cases are related to the special situation in which the principals find themselves, and in these cases, powers of attorney are certified by certain organizations, and such a power of attorney is equivalent to a notarized one.
Paragraph 4 establishes cases of issuing powers of attorney that do not require notarization if they are certified by certain organizations that are directly related to the principal in one way or another, such as the local government authorities where the principal resides, the command of the unit where the military officer is serving, the administration of the medical institution where the principal is undergoing inpatient treatment, the organization where the principal works or studies. It should be noted that the item being commented on has an exhaustive list of powers that such a power of attorney may contain.
In order to facilitate and speed up the transfer of a power of attorney to an attorney, when necessary, it is allowed to transfer a power of attorney by telegraph or other official means of communication, for example, when the attorney and the principal are located in various remote cities and urgent representation of interests is required that do not allow obtaining a power of attorney by courier or by mail. Such a power of attorney must be certified by the communications authorities.
Paragraph 5 regulates cases of presentation to third parties of a power of attorney received by the attorney from the principal by facsimile or other communication, without the mediation of official communication authorities, that is, not certified by the communication authorities. In this case, the third party for whom the power of attorney was issued has the right to consider it authentic or not. And if a third party recognizes such a power of attorney as authentic, the principal has no right to refer to the inconsistency of the form of the power of attorney and on this basis refuse to accept the results of the concluded transaction or declare the recognition of such a transaction invalid.
Paragraph 6 establishes the procedure for issuing powers of attorney on behalf of a legal entity. A power of attorney on behalf of a legal entity does not require, as a general rule, notarization, except in cases where a power of attorney is issued by proxy (see the commentary to art. 169 of the Civil Code). A power of attorney on behalf of a legal entity is issued under the signature of its head or another person authorized to do so by the constituent documents, and sealed with the seal of this organization. The right to sign a power of attorney by a person authorized to do so by the constituent documents is an innovation, compared with the previously existing legislation, and a development of Article 37 of the Civil Code, according to which the competence of the bodies of a legal entity is determined by legislative acts and constituent documents (see commentary to Article 37 of the Civil Code). In accordance with this, the constituent documents of a legal entity may establish both cases of granting the right to issue powers of attorney on behalf of a legal entity, except for the first head also to other persons, for example, his deputies, and cases of issuing a power of attorney with more than one signature.
A power of attorney on behalf of a government agency or a legal entity to receive or issue other property values must be signed, except by the head or other person authorized to do so by the constituent documents, as well as by the chief (senior) accountant of this organization. This rule is established in connection with the need to control the payment and expenditure of money and other material resources, and failure to comply with the rules for issuing such a power of attorney is the basis for invalidating it.
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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.
