Exercise of Civil Rights

🔷 GENERAL CHARACTERISTICS

Article 8 of the Civil Code of the Republic of Kazakhstan (CC RK) represents the normative implementation of the principle of lawful exercise of civil rights. It combines:

· the idea of the subject’s freedom in using their rights,· with limitations arising from public interests, the rights of others, good faith, and the purpose of the right.

🔹 I. FREEDOM TO DISPOSE OF RIGHTS (para. 1)

“Citizens and legal entities dispose of the rights belonging to them at their own discretion...”

🔸 This expresses the autonomy of will, also enshrined in:

· Article 2 CC RK (principles of civil legislation),· Article 380 CC RK (freedom of contract).

🔸 Disposal includes:

· exercise of the right,· renunciation of it,· transfer to other persons (assignment, donation, pledge).

📌 Example: Ownership allows the holder to sell a thing, pledge it, or destroy it (provided this does not violate environmental, sanitary, etc. laws).

🔹 II. NON-EXERCISE OF RIGHTS DOES NOT TERMINATE THEM (para. 2)

“Non-exercise of rights... does not entail their termination...”

🔸 Exception: cases specifically provided by law:

· expiration of rights (e.g., licenses),· expiration of the limitation period (Articles 178–179 CC RK),· termination of an obligation due to failure to perform on time (e.g., offer, Article 395 CC RK).

📌 Example: If a person does not use their registered copyright, it still remains valid — within its term of protection.

🔹 III. LIMITS OF EXERCISING RIGHTS (para. 3)

“Exercise... must not violate the rights of others or cause damage to the environment.”

🔸 This provision expresses the principle of priority of lawful interests and protected goods (including ecology — Article 12 of the Constitution of the RK).

📌 Example: A landowner cannot use their plot in a way that pollutes soil, rivers, or air, even if it is their property.

📌 Example: Playing loud music at night in an apartment building may be deemed abuse of rights, despite formal freedom of action.

🔹 IV. DUTY TO ACT IN GOOD FAITH, REASONABLY, AND FAIRLY (para. 4)

🔸 The principle of good faith is central in civil law:

· presumed unless proven otherwise;· cannot be waived by contract (imperative rule);· applies at all stages of legal relations: from conclusion to performance and protection of rights.

📌 Related norms:

· Article 5 CC RK — analogy of law and right applied with consideration of good faith;· Article 380 CC RK — under freedom of contract, good faith is mandatory.

📌 Example: An entrepreneur who enters into a contract with no intention of performing it acts in bad faith. Even if the contract formally exists, the court may deny protection (see para. 7, Article 8).

🔹 V. ABUSE OF RIGHTS (para. 5)

“Actions in contradiction with the purpose of the right are not permitted...”

🔸 This reflects the “Vienna chair” doctrine: a right is not a weapon, but a tool for lawful regulation.

🔸 Forms of abuse may include:

· malicious intent (deliberately obstructing others);· contradiction to the purpose of the right (using it not for a legitimate goal).

📌 Example: Registering a trademark solely to prevent another entrepreneur from using a name constitutes abuse.

📌 Example: Filing multiple lawsuits not to protect rights, but to pressure a counterparty — constitutes abuse.

🔹 VI. BAD FAITH DOES NOT BRING ADVANTAGES (para. 6)

🔸 Ex turpi causa non oritur actio — no one may derive benefit from their unlawful or bad-faith conduct.

📌 Example: A person evading taxes cannot claim compensation for losses arising from an unregistered “grey” transaction.

🔹 VII. DENIAL OF JUDICIAL PROTECTION (para. 7)

“In case of non-compliance... the court may deny protection...”

🔸 This is a crucial sanctioning mechanism limiting arbitrary exercise of rights.

🔸 Related to:

· Article 9 CC RK — methods of protecting civil rights,· Article 152 CPC RK — obligation of courts to assess legality of claims,· Article 3 Constitution RK — prohibition of abuse of rights and arbitrariness.

📌 Case example: The Supreme Court of the RK denied the plaintiff protection of the right to terminate a lease contract when it was found that the contract was concluded solely for tax benefits, not for actual use.

🔷 VIII. RELATED LEGISLATIVE NORMS

🔷 IX. INTERNATIONAL-LEGAL ANALOGIES

🔷 X. CONCLUSION

Article 8 CC RK sets limits on the exercise of subjective rights, balancing:

· freedom and autonomy of will,· with good faith, fairness, and protection of others’ interests.

It:

· prevents formalism and legal nihilism;· forms an ethical foundation in civil turnover;· enables courts to suppress manipulations of rights.

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