Commentary to the articles of Paragraph 2 of the Property Lease in the new Chapter 29 of the Property Lease (Lease) Agreement of the Civil Code of the Republic of Kazakhstan
The historical roots of the property lease agreement.
The property lease agreement is one of the most ancient in the history of law and is known from the laws of the XII tables. This treaty is very popular in the modern world, both in the countries of codified law and in the countries of Anglo-American law.
In the former socialist countries, including the Kazakh SSR, the property lease agreement had a well-defined social significance. In the Civil Code of the Kazakh SSR, a special chapter 28, containing 16 articles, was devoted to the property lease agreement. During the perestroika period, the Laws of the USSR and the Kazakh SSR on lease and lease relations were developed and applied as important transitional laws.
2.1. The structure of Chapter 29 of the Civil Code "Property hire (lease)". The developers of the Group of Companies were faced with the task of finding the optimal combination of the classic provisions of the lease agreement, which had been tested in world practice for many centuries, and the new provisions of this agreement, which appeared in connection with the development and complication of relations between market participants.
Chapter 29 of the Civil Code, which regulates the contract of property lease, consists of 6 paragraphs, including 60 articles: § 1 is devoted to the general provisions of the agreement, §§ 2-5 are devoted to certain types and objects of the agreement, including leasing, enterprise leasing, rental of buildings and structures, rental of vehicles and rental.
The Civil Code, in paragraph 3 of Article 540, explicitly establishes the possibility of defining other types of contracts related to the transfer of property for a fee for temporary use. (For example, a concession may be considered as a special type of property lease).
The rental of housing by citizens is allocated in a separate chapter 30 of the Civil Code, while the rental of housing and its individual types by other subjects of civil law relations falls under the regulation of Chapter 29 of the Civil Code.
2.2. The name of the agreement.
Historically, the term "lease" is very often used in relation to a property lease agreement. At the same time, the legislation has never clearly distinguished between these terms. The differences between them are philological in nature, and the application of a particular name to the same, in legal essence, contract is determined by legal usage. For example, in relation to the rental of land or enterprises, the term "lease" is consistently used; for non-residential buildings and structures - both rent and rent; for residential premises - rent. When the working group discussed the name for the contract, it was decided to use the historically priority term "property lease" as the main term, and the term "lease" as its synonym.
In addition, for a particular type of lease agreement, if there are traditions (such as for a rental agreement), or other special reasons (such as the existence of an international leasing convention in relation to the lease agreement), it was decided to use specific names of the lease agreement, taking into account the specific features of these agreements.
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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.
