Commentary to article 2. The main principles of civil legislation (as amended Law of the Republic of Kazakhstan dated July 11, 1997) of the Civil Code of the Republic of Kazakhstan  

The commented article essentially defines the basic principles of civil law, i.e. its most important provisions, which serve as the foundation of the entire system of civil law. These provisions are formulated very abstractly, but they have a very specific practical focus.

Firstly, they must be taken into account when developing new or changing old legislative documents.  

Secondly, it is necessary to focus on them if it turns out that any controversial case does not fall within the scope of existing and applicable legal norms (the so-called analogy of law, see art.5 of the Civil Code). For example, the question arises: does a person who has left for permanent residence in another country and renounced his Kazakh citizenship retain ownership of an apartment? The legislation does not provide a direct answer to this question. But based on the commented article, which establishes the inviolability of property, we can assert that the ownership of the apartment remains with the displaced persons.  

Thirdly, the basic principles are taken into account when interpreting, i.e. clarifying the true content of a rule of law (art. 6 of the Civil Code) or a contract (art. 392 of the Civil Code).  

The first among the main principles is the equality of participants in civil law relations. This means that participants, regardless of their social and social status, organizational and legal form and types of property forming the property basis of their activities, are equal in the possibilities of acquiring, using and terminating civil rights and obligations, that they (participants in legal relations) are not subordinate to each other and none of them has the right to order the other, what conditions should be included in the contract, in what order should it be executed, etc. That is why the main instrument for regulating civil law relations is not an order, but a voluntary agreement. Some exceptions arise from the specifics of regulating the activities of state-owned enterprises, the need to take into account emergency circumstances, etc.

The most important principle (basic principle) of civil legislation is the inviolability of property. This principle is based on constitutional principles (see Articles 6 and 26 of the Constitution of the Republic of Kazakhstan).

The inviolability of property, first of all, means the inadmissibility of its forced termination, regardless of whether any compensation is paid or not paid to the owner. An indispensable rule should apply: the compulsory termination of property rights is permissible only if there are grounds for it directly provided for by law (see, for example, Article 249 of the Civil Code). Therefore, it is not enough to refer to the fact that the termination of property rights is permissible only by a court decision. The decision itself must be based on a precise legal basis.  

Inviolability of property also means that arbitrary restrictions on the powers of the owner, other than those provided for by law, are unacceptable (see art. 188 of the Civil Code and its commentary).  

The most important principle of civil law is freedom of contract (see also Article 380 of the Civil Code). This means that any person has the right, at his own discretion and without outside coercion.:

a) to decide whether or not to enter into a particular agreement;  

b) select a partner with whom it wishes to conclude a contract;  

c) determine the terms of the contract.  

At the same time, of course, it should be borne in mind that the contractual partner has the same rights. Therefore, only a voluntary and mutually accepted agreement can be recognized as a genuine civil law contract.  

The principle of freedom of contract should not be confused with the restrictions imposed on themselves by the parties to the contract upon joining it. Such self-restrictions are becoming mandatory, and unilateral rejection of them is unacceptable. Freedom of contract, but not freedom from contract.

The seller of a product, for example, usually has the right to enter into a contract with the buyer on his own, to voluntarily agree or disagree with the terms of the contract at its conclusion. No one has the right to force the seller to make a decision. But if the decision is made and the seller enters into a contract on certain conditions, they become binding on him, and in the future he has no right, referring to the freedom of the contract, to unilaterally refuse to fulfill it, change its terms, etc. This is explicitly stated in art. 404 of the Civil Code.  

Freedom of contract has another boundary in the form of legislative prohibitions or imperative prescriptions of legal norms.

If it is prohibited by law to commit any actions (for example, the sale of weapons or drugs), then, of course, such actions cannot be included in the contract as a condition of it, even if both parties agreed to it. Contracts containing such conditions must be declared invalid under Article 158 of the Civil Code.  

It is known that some norms of civil legislation are mandatory (see the commentary to art. 3 of the Civil Code), i.e. they must be applied without fail. These may include rules that restrict the freedom of contract in order to protect, for example, a weaker party, limit monopolism, combat unfair competition, etc.  

The conditions stipulated by mandatory legislative norms for this type of contract are necessarily included in the content of each specific contract of this type, regardless of whether the parties have included or not included these conditions in the text of their contract.  

Freedom of contract also consists in the ability to conclude any type of contract in terms of content, regardless of whether they are provided for by law or not (see Articles 7, 380 of the Civil Code and commentary to them). Contracts are also possible, the content of which covers several types of elements (art. 381 of the Civil Code). It is only important that all the terms of the contracts do not violate the prohibitions and restrictions established by law.

The inadmissibility of arbitrary interference by anyone in private affairs means that authorities, parents, office managers and others are prohibited from influencing how capable citizens or legal entities manage their property, share their profits, and use income. It is not necessary to obtain anyone's permission, obtain consent, or provide information, unless such requirements are established by law.

Thus, the law may provide for the need for a permit (license) to engage in any activity (art.35 of the Civil Code), allow limitation of legal capacity, and therefore restrict the free execution of transactions (art. 27 of the Civil Code), limit the ability to conceal (classify) certain constituent documents (art. 41 of the Civil Code) and others. But every case of interference must be based on the law.  

The inadmissibility of anyone's interference in private affairs also means a ban on intrusion into someone else's personal life, personal documents and relationships. Many articles of the Civil Code speak about this: 115, 125, 144, etc.

The norm on the unhindered exercise of civil rights is directly related to the principles considered. As already noted, within the boundaries defined by legislative prohibitions, citizens and legal entities can freely and unhindered acquire and exercise their rights.

All the considered basic principles of civil legislation can be most accurately expressed in one phrase: "In the sphere of relations regulated by civil law, citizens and legal entities have the right to perform any actions other than those prohibited by law."  

With such a broad understanding of the freedom to commit civil actions, means are needed to ensure the exercise of civil rights, the restoration of violated rights and their reliable protection.

9 and 10 of the Civil Code (see articles and commentary to them), and the court is named as the body of protection. This means the right of a subject of civil law relations to apply to the court for protection of a violated or even disputed right, regardless of who is the violator - another subject of this civil law relationship, a third party, an authority or management body. In most cases (unless otherwise provided by law), going to court does not require either a preliminary appeal to the violator of the right or complaints to his higher authorities. But for some legal disputes, the law provides for the need to try to get the violator to voluntarily eliminate the violation. Sometimes the need for a preliminary conciliation procedure is provided for by the contract.  

Civil disputes are resolved in State courts in accordance with the rules on jurisdiction and jurisdiction. The law allows for the protection of the right to an arbitration court, that is, a court voluntarily elected by the parties to the conflict (arbitration).  

The judicial procedure for the protection of a right is regulated by civil procedure legislation, and the procedure for applying to an arbitration court and the procedure for considering cases related to the protection of a violated right by this court are determined by mutual agreement of the parties or by special legislation on arbitration courts, the rules of this arbitration (arbitration) court. The procedure recommended by the United Nations - UNCITRAL is often used to resolve disputes related to foreign economic activity.  

As one of the main principles of civil legislation, the commented article provides for the freedom of movement of money, goods and services throughout the territory of the Republic of Kazakhstan. In practice, the prohibitions of heads of administrations to export certain types of food, energy and other goods outside their region are illegal and have no legal effect.

Restrictions on the freedom of movement of money, goods and services are possible only by virtue of legislative acts based on the safety of citizens or the state, health protection (import or export of products suspected of being infected with some kind of disease, things with increased radioactivity), nature protection (products whose consumption causes environmental damage), preservation of cultural, artistic, historical values.

Comments on The Civil Code The Code of Criminal Procedure The Criminal Code The Code of Criminal Procedure The Normative resolution of the Supreme Court The criminal legislation The normative legal acts of the Republic of Kazakhstan  

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.

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