Commentary to article 5. Application of civil legislation by analogy The Civil Code of the Republic of Kazakhstan
The use of analogy was not provided for by the former Civil Code of the Kazakh SSR, but was allowed by the Civil Procedure Code (art. 7). Then the rule of analogy moved to the Basics of Civil legislation, and from them to the commented Civil Code.
The use of analogy is allowed only as an extreme measure to fill in the gaps of the law, if such a gap cannot be filled either by interpretation of the law or by custom.
The legislative extension of the rules of one legal institution to relations regulated by another legal institution should be distinguished from the application of civil legislation by analogy. Thus, Article 84 of the Civil Code provides that, with some exceptions, the rules on LLP apply to TDO.
In the analogy of a law, filling in its gap is achieved by applying a specific legislative norm that directly regulates other but similar relationships. Thus, Article 3 of the Law on Foreign Investments states that relations related to the provision of foreign loans are regulated by special legislation. Such legislation is only taking shape and still contains many gaps. In practice, for example, a question has arisen: are commodity loans carried out under previously concluded contracts subject to a customs duty imposed later? The experts concluded that, since this issue is not resolved by special credit legislation, it can be applied to these relations by analogy with Article 6 of the Law on Foreign Investment, which prevents the deterioration of the situation of a foreign investor due to subsequent legislative changes.
In some cases, however, the application of the analogy of the law is impossible due to the lack of specific rules governing similar legal relations. In such a situation, the analogy of law is applicable, which makes it possible to fill in the gaps by referring to the general principles of civil legislation, primarily freedom of contract.
Comments on The Civil Code The Code of Criminal Procedure The Criminal Code 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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