Commentary to article 18. Inadmissibility of deprivation and restriction of legal capacity and legal capacity of the Civil Code of the Republic of Kazakhstan
When applying the commented article, one should proceed from the provisions of Articles 39 and 74 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, and It also states that laws and other normative legal acts recognized as infringing on human and civil rights and freedoms enshrined in the Constitution are repealed and are not subject to application. It should also be borne in mind that in accordance with art. 78 of the Constitution, the courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of man and citizen enshrined in the Constitution.
Paragraph 1 of the commented article establishes a general rule on the inadmissibility of restricting both the legal capacity and the legal capacity of citizens, except in cases and in accordance with the procedure provided for by legislative acts. No other regulatory legal acts other than legislative ones may establish such restrictions at all. The application of restrictions on the legal capacity of individual citizens in accordance with legislative acts is carried out by the court. The Civil Code and other legislative acts provide for significant differences in the limitation of legal capacity and legal capacity.
A citizen's legal capacity is, in principle, inseparable from the very fact of his existence and does not depend on his personal qualities (see commentary to art. 12 of the Civil Code). Therefore, complete deprivation of legal capacity is not allowed by law. Only individual manifestations of legal capacity may be limited and only for a certain period, and not indefinitely. Thus, for the commission of crimes, criminal legislation may provide for the restriction of certain manifestations of legal capacity. This restriction is established as a measure of punishment. Limitation of legal capacity entails limitation of the corresponding manifestation of legal capacity.
Unlike legal capacity, a citizen's legal capacity is closely related to the ability to understand and direct the meaning of their actions. Therefore, in the absence of these mental qualities of a person or their significant decrease, a citizen may be declared legally incompetent by a court (see art. 26 of the Civil Code) or limited in legal capacity (see art. 27 of the Civil Code).
Cases of deprivation and limitation of legal capacity should be distinguished from those where full or partial legal capacity has not yet arisen due to the failure of a citizen to reach the age prescribed by law (see Articles 22 and 23 of the Civil Code).
The prohibition established by paragraph 2 of the commented article on the restriction of the legal capacity and legal capacity of citizens by actions of state and other bodies contrary to legislative acts is a special case of the general prohibition established by paragraph 5 of Article 3 of the Civil Code on restrictions by acts of ministries, other central executive bodies, local representative and executive bodies of the rights of citizens and legal entities established by legislative acts (see Article 3 of the Civil Code and its commentary). Therefore, paragraph 2 of the commented article should be applied taking into account the norm of paragraph 5 of Article 3 of the Civil Code.
Paragraph 2 of the commented article specifies the grounds on which restrictions on the legal capacity and legal capacity of citizens, including the right to engage in entrepreneurial and other activities, should be invalidated. This is a failure to comply with the conditions and procedure for limiting legal capacity and legal capacity established by legislative acts. For example, akims of regions and districts sometimes impose bans on the export or import of certain goods into the territory of the region or district on grounds not provided for by legislative acts. In particular, such bans are sometimes imposed on the export of agricultural products from the territory of the region or district. They contradict Clause 3 of Article 2 of the Civil Code on the free movement of goods, services and funds throughout the republic.
The legal capacity and legal capacity of citizens are inseparable from their personality and inalienable. Therefore, any transactions, including contracts, aimed at the citizen's renunciation of his legal capacity and legal capacity, their full or partial assignment or restriction are invalid, except in cases where such transactions are permitted by legislative acts. Citizens have the right to renounce or assign their subjective property rights, for example, to a house or car belonging to a citizen, but not from the right to own these things, acquire and alienate them.
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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.
