Disputes related to the conclusion, modification, termination and fulfillment of contractual obligations
The protection of violated or disputed rights, freedoms and legally protected interests of citizens, the State and organizations is one of the main tasks of civil proceedings.
Ensuring effective protection of the economic interests of business entities in the state contributes to the stability of civil turnover, acts as a reliable guarantee of the normal conduct of their activities and, ultimately, is the foundation for the sustainable functioning of the economy, for the free and decent development of every person.
One of the basic principles of civil law is the principle of freedom of contract. Its content is disclosed in Article 380GK.
Meanwhile, certain provisions of this principle are reflected in various norms of the Civil Code. A striking example of this is the articles devoted to both general provisions on the amendment and termination of the contract, as well as specific cases in relation to certain types of agreements.
The unification in Chapter 24 of the Civil Code of the norms concerning both the amendment and termination of the contract is primarily due to the similar grounds for such actions and the procedure for their commission. However, there is no doubt that these concepts are not identical.
Termination of a contract is an act aimed at early termination for the future of the contract in order to terminate at the same time an obligation arising from the contract, the term of which has not yet fully or partially arrived or the performance of which is of a continuing nature.
An amendment to a contract is understood as the transformation of any or several of its terms that make up the content of the contract, including the conditions for the fulfillment of contractual obligations.
It is possible to terminate or amend only such an agreement, the obligations under which have arisen.
From the access provided to the electronic judicial acts issued by the courts of the republic on the topic of generalization, attention should be drawn to the fact that in the database of the ECCD for the category 03.12.02.00 "Disputes related to the conclusion, amendment, termination of the contract and the fulfillment of contractual obligations with economic, technological, information security"the courts of the Republic of Kazakhstan posted 2 judicial acts issued the specialized interdistrict Economic Court of the Almaty region:
- No. 2-994-15 on the claim of the State Institution "Department of the Committee for Industrial Development and Industrial Safety of the Ministry of Investment and Development of the Republic of Kazakhstan for the Almaty region" to Zamangazservice LLP for the suspension of operations of a gas filling station and mobile gas filling stations;
- No. 2-1102-15 on the claim of the State Institution "Department of the Committee for Industrial Development and Industrial Safety of the Ministry of Investment and Development of the Republic of Kazakhstan for the Almaty region" against Tavidi LLP for the suspension of the operation of a gas station. There is no information on the consideration of civil cases of this category in the other courts of the Republic of Kazakhstan in the ECCD. However, it should be noted that the study of the documents enclosed in the ECCD showed that these judicial acts were embedded incorrectly.
These disputes did not arise from contractual obligations, since the authorized body, which is charged with ensuring industrial safety, files a claim for compliance with the requirements of regulatory legal acts in this area, which in itself excludes the emergence of contractual relations between these entities.
Based on this, it should be noted that for the correct definition of cases belonging to this category, one should proceed from the definition of the concept of security. So, security is a state of protection of vital interests of an individual, society and the state from internal and external threats.
The main objects of security are: the individual – his rights and freedoms; society – his material and spiritual values; the state – his constitutional system, sovereignty and territorial integrity.
Economic security is the basis of the country's national security.
The Law "On National Security" defines economic security as the state of protection of the national economy of the Republic of Kazakhstan from real and potential threats, which ensures its sustainable development and economic independence (art. 4, para.4).
Economic security includes:
financial security, which provides for a state of protection of the financial system from real and potential threats, in which the state is able to ensure its integrity, independence and sustainable development.;
food security, which provides for a state of economic security in which the state is able to ensure the physical and economic accessibility of high-quality and safe food products to the population, sufficient to meet physiological consumption standards and demographic growth.;
energy security, which provides for a state of protection of the fuel and energy, oil and gas, and nuclear power complexes of the economy from real and potential threats, in which the state is able to ensure energy independence and their sustainable development to meet the needs of society and the state in energy resources.;
4. Transport security, which provides for the state of protection of the transport sector of the economy from real and potential threats, in which the state is able to ensure the creation of conditions to meet the needs of the economy and the population in transportation by road, rail, air, sea and river modes of transport and related services, the formation and development of transport infrastructure, as well as sustainable development and ensuring the competitiveness of transit potential.
Subjects of economic security are the State exercising its powers through the legislative, executive and judicial branches of government and citizens, enterprises, organizations and institutions.
Economic security requirements are conditions, prohibitions, restrictions, and other mandatory requirements in the field of economic security contained in regulatory legal acts, the observance and enforcement of which will ensure economic security.
Ensuring economic security is a system of measures aimed at preventing harm and damage to objects of economic security in the course of economic activities.foreign economic, intelligence, sabotage, and other activities that pose a threat to economic security.
The criteria of economic security are an assessment of the state of economic security in terms of the most important processes reflecting the essence and basis of sustainable economic development of our state.
The following case can be cited as an example of disputes related to the fulfillment of contractual obligations with economic security.
Another type of national security is information security.
The rapid development and widespread penetration of information technologies into a wide variety of business areas has led to the fact that computer information can currently have a well-defined value, which can be measured by both the profit generated by its use and the amount of damage caused to the owner of information resources or users in violation of established rules for working with information.. Therefore, one of the most important problems of information technology development is reliable information security.
Information security is the state of protection of the information space of the Republic of Kazakhstan, as well as the rights and interests of man and citizen, society and the state in the information sphere from real and potential threats, which ensures the sustainable development and information independence of the country (art.4, para.5 of the above-mentioned Law).
The activities of entities to protect information protected by the owner are mainly related to the prevention of leakage of protected secrets, i.e. legal protection and protection of information, including state secrets and confidential information with limited access.
Threats to information security are divided into software – the introduction of "viruses", hardware and software bookmarks; destruction and modification of data in information systems; technical, including electronic – interception of information on communication lines; electronic signal suppression, etc.; physical – destruction of information processing facilities and storage media; theft of media, as well as hardware and software password keys.
The Concept of Information Security of the Republic of Kazakhstan has been developed until 2016, approved by the Decree of the President of the Republic of Kazakhstan dated 11/14/2011.
Technological security is ensuring the sustainability of high technologies in the event of complications arising from adverse or specific events in the state.
The danger of man-made accidents and catastrophes is highly appreciated, since they lead to the emergence of a number of other hazards, including environmental, economic, etc.
The most dangerous of the internal sources are the ongoing crisis phenomena in the country's economy, the deterioration of the overall socio-economic situation in the state, and a decrease in the level and effectiveness of state control over basic sectors of the economy.
An equally serious danger is the progressive depreciation of fixed assets, especially at enterprises of the chemical complex, oil and gas, metallurgical and mining industries, which is usually caused by a slowdown in the rate of renewal of fixed assets.
In the structure of internal threats, the environmental factor is of great importance, the impact of which is mediated by such phenomena as an increase in the use of hazardous substances and materials, a decrease in the level of professional training of industrial personnel, and the lack of requirements for private enterprises to protect the environment in the regulatory framework.
External sources of man-made threats include such phenomena as the transboundary transport of pollutants (dangerous toxic substances and infectious diseases); the occurrence of man-made disasters in neighboring foreign territories.
Legal acts
The main legal acts to be applied in the consideration of cases of the generalized category are
The Constitution of the Republic of Kazakhstan,
The Civil Code (hereinafter referred to as the Civil Code),
The Civil Procedure Code (hereinafter referred to as the CPC),
Environmental Code,
Laws
"On National Security of the Republic of Kazakhstan",
"On public procurement",
"About the electric power industry",
"On countering terrorism",
"About an electronic document and an electronic digital signature",
"About informatization",
"About technical regulation",
"About licensing",
"About mass media",
"About the connection."
As well as regulatory rulings of the Supreme Court of the Republic of Kazakhstan:
No. 21 of December 13, 2001 "On the preparation of civil cases for trial",
No. 2 of March 20, 2003 "On the application by courts of certain norms of civil procedure legislation",
No. 5 of July 11, 2003 "On the court decision",
No. 5 dated December 14, 2012 "On the application of legislation on public procurement by courts",
No. 16 of December 22, 2000 "On the practice of application of legislation on environmental protection by courts",
No. 3 dated June 20, 2005 "On judicial practice of application of legislation on administrative supervision".
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