Obligations under the lease agreement
As established in the legislative norm, according to Article 2 of the Law of the Republic of Kazakhstan "On Financial Leasing" (hereinafter referred to as "leasing") is a type of investment activity in which the lessor undertakes to transfer the leased object acquired from the seller and stipulated by the lease agreement to the lessee for a certain fee and under certain conditions for temporary possession and use for a period of at least three years for entrepreneurial purposes.
Under the lease agreement, the lessor undertakes to acquire ownership of the property specified by the lessee from the seller and provide the lessee with this property for temporary possession and use for business purposes for a fee (art.565 of the Civil Code of the Republic of Kazakhstan).
The lease agreement in accordance with art.564 of the Civil Code of the Republic of Kazakhstan is considered as a separate type of lease obligation and the provisions provided for in the Chapter of property lease (lease) are applied, unless otherwise provided by legislative acts and rules of this Code on them.
The lease agreement is united with other types of leases by the fact that the property is transferred by the landlord to the tenant for temporary paid possession and use.
At the same time, the lease agreement has certain characteristic features that distinguish it into a separate type of lease agreement.
Firstly, the obligee under the lease agreement, along with the lessor and the lessee, is also the seller of the property, who is its owner and is not involved in the lease agreement as a party to it.
Secondly, the lessor, unlike the general provisions on leasing, is not the owner or titular owner of the property that is subject to leasing. Moreover, the lessor is obligated to acquire ownership of this property belonging to another person (the seller). This obligation of the lessor is covered by the content of the obligation arising from the lease agreement. When purchasing property for the lessee, the lessor must notify the seller that this property is intended to be leased.
Thirdly, the lessee plays an active role in the lease obligation, which is not usually characteristic of a lease relationship. It is the lessee who determines the seller and specifies the property to be acquired by the lessee for subsequent lease. Naturally, the lessor is relieved of any responsibility for choosing the rental item and the seller. The lease agreement may provide that the choice of the seller and the acquired property is carried out by the lessor.
Fourthly, the provision set out in the Civil Code in the form of a dispositive rule that the transfer of property leased under a lease agreement to a lessee is carried out not by the lessor, but by the seller of this property, is also special in comparison with the general rules on leasing.
Nevertheless, responsibility for non-fulfillment or improper fulfillment of this obligation, if the delay is allowed due to circumstances for which the lessor is responsible, is assigned to the lessor.
The requirement of Article 572 of the Civil Code of the Republic of Kazakhstan stipulates that in relations with the seller, the lessee and the lessor act as joint creditors.
In this case, the lessee has the right to demand from the lessor the termination of the contract and compensation for damages.
From the moment the seller transfers the property provided for in the lease agreement to the lessee, the risk of accidental loss or accidental damage to the leased property passes to the latter.
The subject of a lease agreement may be any non-consumable items, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for entrepreneurial activities.
The subject of leasing may not be land plots and other natural objects, as well as property that is prohibited by law for free circulation or for which a special treatment procedure is established.
The right of ownership and use of the leased item passes to the lessee in full, however, the lease agreement may specify otherwise. In this case, the leased item transferred to the temporary possession and use of the lessee is the property of the lessor.
The lessor's right to dispose of the leased item includes the right to withdraw the leased item from the lessee's possession and use in cases and in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan and the lease agreement.
Any business agreement is considered concluded if an agreement has been reached between the parties on all essential terms. For a lease agreement, the law specifies only one condition as mandatory - the subject of the lease.
A lease agreement that does not contain the necessary data to definitively identify the property to be transferred to the lessee as a leased asset is not considered concluded.
The lease agreement, regardless of the term, is concluded in writing. The rights to property that is transferred under a lease agreement, the subject of which is this property, are subject to state registration. For example, a real estate lease agreement concluded for a period of at least one year. In this case, the lease agreement in accordance with the Law of the Republic of Kazakhstan "On State Registration of Immovable Property and Transactions with it" is registered as an encumbrance of the lessor's property right.
Encumbrance is the right of the lessee to own and use the leased item belonging to the lessor. An essential feature of the lease agreement is the fact that in order to fulfill their obligations under the lease agreement, leasing entities conclude binding and related agreements.
Mandatory contracts include a purchase and sale agreement. In accordance with the terms of the purchase and sale agreement, the seller of the property that is the subject of the financial lease agreement does not transfer it to the lessor, but directly to the lessee at its location, unless otherwise provided by the financial lease agreement.
Related agreements include a fundraising agreement, a pledge agreement, a guarantee agreement, a surety agreement, and others.
Thus, according to the requirement of Article 15 of the Law of the Republic of Kazakhstan "On Financial Leasing", the lease agreement must contain the following essential conditions:
1) the subject of the contract;
2) the name of the seller of the leased item, indicating by whom the seller and the leased item were selected;
3) conditions and term of transfer of the leased item to the lessee;
4) the amount and frequency of lease payments;
5) the cost of the leased item;
6) the term of the contract;
7) the conditions for the transfer of the leased object to the ownership of the lessee, if such a transfer is provided for by the contract;
8) a description of the leased object; In the absence of these conditions, the lease agreement is considered not concluded. By agreement of the parties, other terms may be included in the lease agreement. The lease agreement must be concluded in writing. Failure to comply with the written form of the lease agreement entails its invalidity.
The lease agreement is amended and terminated in cases and in accordance with the procedure determined by the civil legislation of the Republic of Kazakhstan (Chapter 24 of the Civil Code of the Republic of Kazakhstan) or the lease agreement.
In accordance with the requirement of Article 20 of the Law of the Republic of Kazakhstan "On Financial Leasing", responsibility for the safety of the leased item, as well as for the risks associated with its death, loss, damage, premature breakdown, theft and miscalculations during installation, assembly or operation of the leased item, which led to the impossibility of its use to the extent provided for in the technical documentation., and other property risks from the moment of the actual acceptance of the leased item are borne by the lessee, unless otherwise provided by the contract. The lease agreement may also provide for the obligation of the lessor or the lessee to insure the leased item.
If the party obligated to insure the leased item has not insured in accordance with the terms of the lease agreement, the other party has the right to insure the leased item and require the obligated party to reimburse expenses in the form of insurance payments. The death, loss, damage, theft of the leased object or the loss of its functions by the leased object, or if the property, due to circumstances for which the lessee is not responsible, turns out to be in a condition unsuitable for use, do not release the lessee from obligations under the lease agreement and are not grounds for early termination of the lease agreement at the request of the lessee, if the lease agreement leasing is not established otherwise. The lease agreement contains the rights and obligations of the parties.
Thus, according to the requirements of Article 565 of the Civil Code of the Republic of Kazakhstan, under a lease agreement, the lessor undertakes to acquire ownership of the property specified by the lessee from the seller and provide the lessee with this property for temporary possession and use for business purposes for a fee.
Paragraph 2 of this article states that the lease agreement may provide that the choice of the seller and the acquired property is carried out by the lessor. This provision of the law also provides that the legislative acts of the Republic of Kazakhstan may establish the specifics of certain types of leasing agreements.
Thus, according to Article 14 of the Law of the Republic of Kazakhstan dated January 9, 2012 No. 534-IV "On State support of industrial innovation activities" provides:
1. Financing, including co-financing, of projects, leasing financing of subjects of industrial and innovative activity for medium and long-term periods is carried out by the Development Bank of Kazakhstan, as well as other national development institutions determined by the Government of the Republic of Kazakhstan.
Financing, including co-financing, is carried out to create new industrial and innovative projects, as well as industrial and innovative projects aimed at modernization (technical re-equipment) and expansion of existing production facilities.
3. Leasing financing is provided to subjects of industrial and innovative activity for a period not exceeding ten years.
The terms and mechanisms of financing, including co-financing, of projects and leasing financing are determined by the Government of the Republic of Kazakhstan, which are reflected in the Resolution of the Government of the Republic of Kazakhstan dated June 5, 2012 No. 745 "On determining the terms and mechanisms of financing, including co-financing, of industrial innovation projects, leasing financing of subjects of industrial and innovative activity".
On the basis of the lease agreement, the lessor undertakes to acquire ownership of certain property from a certain seller for its transfer for a certain fee for a certain period, under certain conditions, as a leased asset to the lessee; to fulfill other obligations arising from the content of the lease agreement.
In turn, the lessee undertakes to accept the leased item in the manner provided for by the said lease agreement; to pay lease payments to the lessor in the manner and within the time limits provided for by the lease agreement; upon expiration of the lease agreement, to return the leased item, unless otherwise provided for by the said lease agreement, or to acquire ownership of the leased item on the basis of the purchase agreement.sales; fulfill other obligations arising from the content of the lease agreement.
According to Article 566 of the Civil Code of the Republic of Kazakhstan, buildings, structures, machinery, equipment, inventory, vehicles, land plots and any other non-consumable items can be leased.
The subject of leasing may be movable property that is the subject of collateral. Securities and natural resources cannot be leased.
At the same time, according to paragraph 3 of Article 4 of the Law of the Republic of Kazakhstan "On Financial Leasing, legislative acts may establish other restrictions on the use of certain categories of things and land plots as a subject of leasing. The leased item remaining in the lessor's ownership in the event of termination or termination of the lease agreement may be used by the lessor for subsequent leasing transfer to another lessee.
Upon subsequent leasing of such a leased item, it is considered that the choice of the seller and the leased item is made by the lessor. A special feature of the financial leasing agreement is the right of the lessee to present his demands on the quality and completeness of the property constituting the item, the timing of its delivery, and other requirements arising from the purchase and sale agreement concluded between the seller and the lessor directly to the seller of the property.
Lease payments in accordance with the requirements of Article 21 of the Law of the Republic of Kazakhstan "On Financial Leasing" are understood as periodic payments representing the total amount of payments under the lease agreement for the entire term of the lease agreement, which must be calculated taking into account the reimbursement of all or a significant part of the cost of the leased item at the price at the time of the lease agreement and carried out on during the term of the lease agreement, which include:
1) reimbursement to the lessor of the costs of acquiring the leased item and any other expenses directly related to the acquisition, delivery of the leased item and bringing it into working condition for its intended use in accordance with the lease agreement;
2) remuneration for leasing.
In accordance with the requirement of Article 570 of the Civil Code of the Republic of Kazakhstan, periodic payments payable under the lease agreement can be calculated taking into account the depreciation of all or a significant part of the value of the property at the price at the time of the conclusion of the agreement.
The specifics and subject matter of the lease agreement determine the specifics of the jurisdiction of this category of disputes.
Thus, by virtue of the provisions of Article 566 of the Civil Code of the Republic of Kazakhstan, any non-consumable items used in business activities can be the subject of a financial lease (leasing) agreement. In this regard, the subjects of the lease agreement may be a commercial organization (legal entity) and a citizen registered as an individual entrepreneur on the part of the lessor (lessor) and on the part of the lessee (lessee).
Thus, taking into account the requirements of art.30 of the CPC RK, it can be concluded that cases of disputes arising from the lease agreement relate only to the competence of specialized interdistrict economic courts.
The most common legal disputes arising from a financial leasing agreement include:
1) the lessor's claims for debt collection on lease payments;
2) the lessor's demands for termination of the financial lease (leasing) agreement and the lessee's obligation to return the property transferred under the lease agreement;
3) the lessee's claims for termination of the financial leasing agreement and recovery of losses.
It should also be borne in mind that claims for the recovery of funds declared as the principal debt may be supplemented by claims for the recovery of contractual penalties or interest for the use of other people's funds accrued in accordance with art. 351 of the Civil Code of the Republic of Kazakhstan.
Taking into account the varieties of the subject of claims, it is necessary to identify the specifics of proof for each category of disputes. However, for all categories of claims, it is mandatory to establish the legal nature of the concluded contract by examining the following factual circumstances at its conclusion:
1) the emergence of which legal relations is directed by the will of the parties;
2) is the contract, by its legal nature, a financial leasing agreement;
3) whether the concluded contract is valid in relation to the circumstances of its compliance with the requirements of the law. Mandatory evidence to be submitted to the court, regardless of the nature of the claim, should include evidence certifying that the lessee has received the leased item (with the exception of claims based on a violation of obligations to transfer property to the lessee).
In addition, if the subject of the lease agreement is immovable property or the latter is part of the leased property, it is mandatory to provide evidence attesting to the state registration of such an agreement.
On cases from the financial leasing agreement.
The subject of the proof includes the proof:
1) the existence of contractual legal relations based directly on the financial lease agreement;
2) the fact that the lessor has transferred property to the lessee that meets the terms of the contract in terms of quality and completeness, intended purpose;
3) violations by the lessee of the obligations assumed under the agreement, which determine the amount, method, form and frequency of payments specified in the financial lease agreement, and, as a result, the total amount of arrears on lease payments;
4) the presence (absence) of deferred lease payments.
When determining the subject of proof, an analysis of the terms of the contract will determine which amounts are included in the lease payments.
Regarding the lessor's claims for debt collection on lease payments, it is necessary to take into account the specifics established by art. 21 of the Law on Leasing, namely:
1) the amount, method of implementation and frequency of lease payments are determined directly by the lease agreement.
2) the terms of the contract may provide for a deferral of lease payments; 3) the actual transfer of the leased item must take place (in the absence of a clause in the contract providing otherwise).
With regard to the burden of proof, the lessor is obliged to prove the existence of the stated circumstances of the violation by the lessee of the obligations assumed under the contract. The necessary evidence should include evidence aimed at establishing actual obligations regarding the amount, method, form and frequency of payments determined by the contract.
In this regard, it is mandatory for the court to provide and examine the lease agreement. The evidence confirming or refuting the stated circumstances is the financial documents corresponding to the terms of the contract, containing information about the payment of lease payments.
If the terms of the agreement stipulate that the payment of lease payments is carried out on the basis of payment documents submitted by the lessor, the relevant financial documents should be submitted to the court with evidence confirming their transmission to the lessee.
The right of use and possession in relation to the leased item and, accordingly, the obligation of the lessee to pay lease payments arise for the lessee from the moment of transfer of this property to him (in the absence of any other condition specified in the contract).
As a result, it is mandatory to examine the evidence (acceptance certificate) confirming the transfer and acceptance by the lessee of the leased item. According to the requirement of Article 23 of the Law of the Republic of Kazakhstan "On Financial Leasing", the lessee must return the leased item if the lease agreement does not provide for the right or obligation of the lessee to acquire ownership of the leased item, or he did not use the provided right to purchase the leased item, or the lease agreement was terminated prematurely in court, as well as in other cases provided for by the lease agreement. and legislative acts of the Republic of Kazakhstan.
1) the lessor's claims for debt collection on lease payments;
2) the lessor's demands for termination of the financial lease (leasing) agreement and the lessee's obligation to return the property transferred under the lease agreement;
3) the lessee's claims for termination of the financial leasing agreement and recovery of losses.
It should also be borne in mind that claims for the recovery of funds declared as the principal debt may be supplemented by claims for the recovery of contractual penalties or interest for the use of other people's funds accrued in accordance with art. 351 of the Civil Code of the Republic of Kazakhstan.
Taking into account the varieties of the subject of claims, it is necessary to single out the specifics of proof for each category of disputes. However, for all categories of claims, it is mandatory to establish the legal nature of the concluded contract by examining the following factual circumstances at its conclusion:
1) the emergence of which legal relations is directed by the will of the parties;
2) is the contract, by its legal nature, a financial leasing agreement;
3) whether the concluded contract is valid in relation to the circumstances of its compliance with the requirements of the law. Mandatory evidence to be submitted to the court, regardless of the nature of the claim, should include evidence certifying that the lessee has received the leased item (with the exception of claims based on a violation of obligations to transfer property to the lessee).
In addition, if the subject of the lease agreement is immovable property or the latter is part of the leased property, it is mandatory to provide evidence attesting to the state registration of such an agreement.
On cases from the financial leasing agreement.
The subject of the proof includes the proof:
1) the existence of contractual legal relations based directly on the financial lease agreement;
2) the fact that the lessor has transferred property to the lessee that meets the terms of the contract in terms of quality and completeness, intended purpose;
3) violations by the lessee of the obligations assumed under the agreement, which determine the amount, method, form and frequency of payments specified in the financial lease agreement, and, as a result, the total amount of arrears on lease payments;
4) the presence (absence) of deferred lease payments.
When determining the subject of proof, an analysis of the terms of the contract will determine which amounts are included in the lease payments.
Regarding the lessor's claims for debt collection on lease payments, it is necessary to take into account the specifics established by art. 21 of the Law on Leasing, namely:
1) the amount, method of implementation and frequency of lease payments are determined directly by the lease agreement.
2) the terms of the contract may provide for a deferral of lease payments; 3) the actual transfer of the leased item must take place (in the absence of a clause in the contract providing otherwise).
With regard to the burden of proof, the lessor is obliged to prove the existence of the stated circumstances of the violation by the lessee of the obligations assumed under the contract. The necessary evidence should include evidence aimed at establishing actual obligations regarding the amount, method, form and frequency of payments determined by the contract.
In this regard, it is mandatory for the court to provide and examine the lease agreement. The evidence confirming or refuting the stated circumstances is the financial documents corresponding to the terms of the contract, containing information about the payment of lease payments.
If the terms of the contract stipulate that the payment of lease payments is carried out on the basis of payment documents submitted by the lessor, the relevant financial documents should be submitted to the court with evidence confirming their transmission to the lessee.
The right of use and possession in relation to the leased item and, accordingly, the obligation of the lessee to pay lease payments arise for the lessee from the moment of transfer of this property to him (in the absence of any other condition specified in the contract).
As a result, it is mandatory to examine the evidence (acceptance certificate) confirming the transfer and acceptance by the lessee of the leased item. According to the requirement of Article 23 of the Law of the Republic of Kazakhstan "On Financial Leasing", the lessee must return the leased item if the lease agreement does not provide for the right or obligation of the lessee to acquire ownership of the leased item, or he did not use the provided right to purchase the leased item, or the lease agreement was terminated prematurely in court, as well as in other cases provided for by the lease agreement. and legislative acts of the Republic of Kazakhstan.
The leased item must be returned in the condition in which it was received by the lessee, taking into account normal wear and tear, or in the condition stipulated by the lease agreement. If the condition of the returned leased item does not comply with the conditions provided for in paragraph 2 of this article, the lessee shall compensate the lessor for the damage caused, unless otherwise provided by the lease agreement.
If the leased item falls out of its normal working condition ahead of time due to its technical characteristics due to improper operation by the lessee and is returned to the lessor, the lessee is obliged to compensate the lessor for losses, unless otherwise provided by the lease agreement.
If the lessee is obliged to return the leased item and has not returned it or returned it untimely, the lessor has the right to demand payment of lease payments for the entire period of delay.
If the lease payments do not cover the losses caused to the lessor, he has the right to demand their compensation.
In such claims, the subject of proof includes confirmation by the lessor of violations by the lessee of obligations assumed under the contract. Evidence in this category of disputes should also include evidence indicating the existence of circumstances stipulated in the contract by the parties as indisputable and obvious breaches of obligations (for example, a violation by the lessee of obligations to pay lease payments).
According to paragraph 2 of Article 24 of the Law of the Republic of Kazakhstan "On Financial Leasing", the lessor has the right to indisputably claim the leased item in the following cases:
1) if the use of the leased item by the lessee does not comply with the terms of the lease agreement or the purpose of the leased item;
2) if the lessee restricts the lessor's access to the leased item;
3) if the lessee fails to make the lease payment under the lease agreement in the prescribed amount two or more times in a row within the time limits stipulated by the agreement.
Financial leasing agreements also provide for the plaintiff's right to indisputably claim the leased item in accordance with the current legislation of the Republic of Kazakhstan. The indisputable claim of the leased item is carried out in the order of writ proceedings in accordance with the Civil Procedure Code of the Republic of Kazakhstan.
To issue a court order, the lessor must submit:
1) Application form;
2) lease agreement;
3) a written warning about the possible claim of the leased item, sent to the lessee at least one month before the application is submitted;
4) documents confirming the actual payment of lease payments by the lessee. The lessee has the right, within ten days from the date of receipt of a copy of the court order, to send objections to the court that issued the order against the stated claim to claim the leased object using any means of communication.
In addition to the above-mentioned varieties, it is also possible to identify the claims of the lessee related to the lease agreement, addressed to the lessor and the seller of the leased item, for the recovery of losses caused by the transfer of the leased item of inadequate quality.
When determining the subject of proof and evidence to be presented to the court, in addition to the general requirements for claims for damages, the specifics of leasing legal relations should be taken into account.
Thus, according to clause 3 of Article 19 of the Law on Leasing, the risk of the seller's failure to fulfill obligations under the lease agreement and related losses is borne by the party to the lease agreement that chose the seller, unless otherwise provided by the lease agreement.
According to clause 2 of Article 572 of the Civil Code of the Republic of Kazakhstan, unless otherwise provided by the financial leasing agreement, the lessor is not responsible to the lessee for the fulfillment by the seller of the requirements arising from the sale agreement, except in cases where the responsibility for choosing the seller lies with the lessor.
In this case, the lessee has the right, at his discretion, to make claims arising from the contract of sale, both directly to the seller of the property and to the lessor, who are jointly and severally liable.
In connection with the above, it is mandatory for the court to examine the lease agreement regarding the existence of conditions on the lessor's responsibility for choosing the seller of the leased item. With regard to the seller's liability, paragraph 1 of Article 422 of the Civil Code of the Republic of Kazakhstan should be taken into account, which establishes the seller's obligation to transfer goods to the buyer, the quality of which corresponds to the contract of sale.
An obligatory component of the subject of proof should include proving the circumstances of non-fulfillment or improper fulfillment of obligations, the presence and amount of losses, the causal relationship between them, as well as the guilt of the person who did not fulfill the obligation properly. The stated circumstances can be established through the use of the following evidence:
1) financial leasing agreements;
2) financial documents confirming the amount of losses claimed for recovery;
3) acts of acceptance and transfer of the leased item;
4) evidence confirming the non-compliance of the leased object transferred to the lessee with the terms of the quality agreement.
The lessor has the right to demand early termination of the lease agreement and the return of the leased object by the lessee within a reasonable period of time, in case the lessee violates one or another condition of the lease agreement, with which the agreement binds the lessor's right to refuse to perform the contract.
Disputes over Islamic leasing
Thus, according to art.24-1, which specifies the requirements for the implementation of Islamic leasing, it is stipulated that when carrying out Islamic leasing activities, legal entities are required to comply with the principles of Islamic finance, as well as other requirements established by this article.
According to paragraph 2 of this article, the principles of Islamic finance are:
1) a ban on financing by the lessor of activities related to the production and (or) trade in tobacco, alcoholic beverages, weapons and ammunition, gambling, as well as other types of entrepreneurial activities, the financing of which is prohibited by the Council on the principles of Islamic finance;
2) a ban on the lessor receiving remuneration in the form of interest from investing money related to Islamic leasing. The Council on the Principles of Islamic Finance or an external independent expert on the principles of Islamic finance (hereinafter referred to as external independent experts) may additionally determine other mandatory requirements for the activities of the lessor and the lessee.
It is not allowed for the lessee to use the leased object or sublicense it for carrying out the activities specified in subparagraph 1) of the first paragraph of paragraph 2 of this Article.
Ownership of the leased item passes to the lessee on the basis of a separate agreement after he fulfills his obligations to the lessor under the Islamic leasing agreement.
The lessee pays the lease payments after the transfer of the leased item to the lessee.
The amounts of fines and penalties for non-fulfillment and (or) improper fulfillment of obligations by the lessee in part or in full may be directed by the lessor to charitable assistance by decision of the Council on the Principles of Islamic Finance or external independent experts.
The lessor, which is not an Islamic bank, keeps separate records of income and expenses on Islamic leasing from income and expenses on other activities.
In accordance with the requirement of Articles 24-2, which establishes the activities of the Council on the principles of Islamic finance, it is stipulated that in order to determine the compliance of Islamic leasing transactions, the lessor must establish the Council on the principles of Islamic finance.
In cases stipulated by the regulatory legal act of the National Bank of the Republic of Kazakhstan, the lessor has the right to involve external independent experts to obtain an opinion on the compliance of Islamic leasing transactions with the principles of Islamic finance without establishing a council on the principles of Islamic finance.
The requirements for external independent experts are established by the regulatory legal act of the National Bank of the Republic of Kazakhstan. The Council on the Principles of Islamic Finance is an independent body appointed by the general meeting of shareholders of the lessor on the recommendation of the Board of Directors.
External independent experts are determined by the lessor's board of directors. The lessor's internal regulatory documents governing Islamic leasing are subject to approval by the lessor's board of Directors if there is a positive opinion from the Council on the Principles of Islamic Finance or external independent experts.
The tasks, functions and powers of the Council on the principles of Islamic Finance, as well as the procedure for its creation and the requirements for the members of the Council on the principles of Islamic finance are determined by the regulations approved by the general meeting of shareholders of the lessor. The tasks, functions, powers of external independent experts and their requirements are determined by the regulations approved by the lessor's board of Directors.
In accordance with art. 24-3, the Islamic leasing agreement must contain the following essential conditions::
subject of the agreement;
2) an indication of the purpose of using the leased item and the obligation to comply with the intended use by the lessee of the leased item in accordance with the principles of Islamic finance;
3) conditions and term of transfer of the leased item to the lessee;
4) fixed amount and frequency of lease payments;
5) fixed cost of the leased item;
6) an exhaustive list and amount of the lessor's expenses to be reimbursed by the lessee in connection with the transfer of the leased item;
7) the term of the contract.
An Islamic leasing agreement may not provide for the transfer of the leased item to the ownership of the lessee. Ownership of the leased item may be transferred to the lessee on the basis of a separate agreement.
In the case of an Islamic leasing agreement for a leased item that is not owned by the lessor, the Islamic leasing agreement provides for a period during which the lessor is granted the right to create the leased item or acquire ownership of it.
If the lessor provides property that does not comply with the terms of the Islamic leasing agreement, the lessee has the right to refuse to execute the Islamic leasing agreement or to demand the leasing of property that complies with the terms of the Islamic leasing agreement.
Under an Islamic leasing agreement, the lessor's expenses for insurance, capital repairs and other expenses may be included in lease payments by mutual agreement of the parties.
Under an Islamic leasing agreement, the lessee is responsible for the safety of the property and the risks specified in paragraph 1 of Article 20 of this Law, with the exception of the cases provided for in paragraph 7 of this Article, as well as the case of premature breakdown associated with miscalculations during the installation and assembly of the Islamic leasing item.
Under an Islamic leasing agreement, the lessee is released from obligations and has the right to terminate the Islamic leasing agreement in the event of death, loss, damage, theft of the leased item or loss of its functions by the leased item due to circumstances for which the lessee is not responsible.
According to Articles 24-4, if the Council on the Principles of Islamic Finance or external independent experts recognize a transaction at the stage of conclusion that does not meet the requirements specified in paragraph 1 of Article 24-1 of this Law, such a transaction cannot be concluded and executed.
If the Council on the Principles of Islamic Finance or external independent experts recognize a transaction as concluded, but not executed or partially executed, which does not meet the requirements specified in paragraph 1 of Article 24-1 of this Law, such transaction is terminated prematurely in accordance with the procedure established by the civil legislation of the Republic of Kazakhstan.
If the Council on the Principles of Islamic Finance or external independent experts recognize a completed or partially completed transaction that does not meet the requirements specified in paragraph 1 of Article 24-1 of this Law, the income from such a transaction must be directed to charity.
As can be seen from the above-mentioned addendum to the Law of the Republic of Kazakhstan "On Financial Leasing", the ban on financing by the lessor of activities related to the production and (or) trade in tobacco, alcohol, weapons and ammunition, gambling, as well as other types of entrepreneurial activities, the financing of which is prohibited by the Council on the principles of Islamic finance is the main and essential basis.
Termination of the financial lease agreement
All lawsuits in this category of cases were filed by lessors demanding that the lessees terminate the financial lease agreement and oblige the lessee to return the property transferred under the lease agreement.
Practice shows that the courts still confuse the concepts of property lease and financial leasing, which is a separate type of property lease.
The practice of courts considering cases of such categories also shows that courts, when considering these categories of cases, often do not pay attention to violations of the rights to protect lessees who, according to a financial leasing agreement, have been paying lease payments in good faith for many years, after which ownership of the leased items must pass to the lessees.
Agricultural machinery and equipment for agricultural production are mainly purchased as a leased item, the operation of which directly depends on the natural and climatic conditions.
In addition, the lessees are mostly rural workers who do not have sufficient legal knowledge in concluding financial leasing agreements. Therefore, they may not be aware of their rights when drafting financial leasing agreements.
Since the Law of the Republic of Kazakhstan "On Financial Leasing" in clause 7 of Article 12 explicitly states the rights of the lessee that, unless otherwise stipulated by the lease agreement, require a corresponding reduction in the amount of leasing and lease payments if, due to circumstances for which he is not responsible, the conditions of use provided for in the lease agreement have significantly deteriorated.
Also, upon termination of the lease agreement (for example, due to non-fulfillment by the lessee of its terms) and the return of the leased object to the lessor, the lessee, in turn, according to clause 4 of Article 12 of the Law, has the right: unless otherwise provided by the lease agreement, to demand back the lease payments paid in advance, upon unilateral termination by the lessor of the lease agreement.
Thus, according to the requirements of Article 12 of the Law of the Republic of Kazakhstan "On Financial Leasing", the lessee has the right:
1) own and use the leased item under the terms of the lease agreement;
2) to make demands to the seller regarding the quality and completeness of the leased item, the timing of its delivery and in other cases of improper performance of the contract concluded between the seller and the lessor;
3) unless otherwise stipulated by the lease agreement, suspend lease payments due in the event of a significant violation by the lessor of the terms of the lease agreement until the lessor fulfills its obligations to the lessee under the lease agreement.;
4) unless otherwise stipulated by the lease agreement, to reclaim the lease payments paid to them in advance, upon unilateral termination by the lessor of the lease agreement;
5) unless otherwise stipulated by the lease agreement, to abandon the leased item or require replacement of the leased item, terminate the lease agreement in cases where the leased item has not been delivered, has been delivered with a significant delay or has been delivered with irreparable defects that prevent the use of the leased item for its intended purpose, except in cases where the seller and the leased item are chosen by the lessee;
6) to claim damages in case of non-fulfillment or improper fulfillment by the lessor of the terms of the lease agreement;
7) unless otherwise stipulated by the lease agreement, to demand a corresponding reduction in the amount of the lease and lease payments if, due to circumstances for which he is not responsible, the conditions of use provided for in the lease agreement have significantly deteriorated.
The requirement to refund the amount or compensation for damage is also provided for in Article 401 of the Civil Code of the Republic of Kazakhstan, which sets out the grounds for amendment or termination of the contract and Article 403 of the Civil Code of the Republic of Kazakhstan, which sets out the consequences of termination or amendment of the contract.
Thus, according to subparagraph 2 of paragraph 2 of Article 401 of the Civil Code of the Republic of Kazakhstan, at the request of one of the parties, the contract may be amended or terminated by a court decision only in other cases provided for by this Code, other legislative acts or the contract.
Also, according to clause 4 of Article 403 of the Civil Code of the Republic of Kazakhstan, the parties do not have the right to demand the return of what they performed under the obligation prior to the termination or amendment of the contract, unless otherwise established by legislative acts or agreement of the parties.
Since, according to paragraph 4 of Article 12 of the Law of the Republic of Kazakhstan "On Financial Leasing", the lessee has the right, unless otherwise stipulated by the lease agreement, to demand back the lease payments paid in advance upon unilateral termination of the lease agreement by the lessor, the lessee has the right to demand from the lessor the lease payments and the purchase price of the advance payments.
The practice of consideration by Russian courts
the practice of considering such cases by Russian courts shows that in practice, far from all cases, the lease agreement creates an obligation for the lessee to pay the purchase price to the lessor and the lessors incur losses because they cannot return the invested investments in full, the returned leased object in practice is not always possible to quickly and profitably realize.
When considering court cases by Russian courts, the rental nature of leasing is put at the forefront and the economic essence of the financial leasing transaction is not taken into account. The purchase price of the leased item is calculated in different ways: by calculation, based on an independent appraiser's report on the market value of the leased item, and based on accounting rules.
Also, the practice of Russian courts shows that in most cases, financial leasing agreements of leasing companies contain a condition on the transfer of ownership of the leased object to the lessee at the end of the contract, subject to payment of all lease payments.
This practice leads to the fact that unscrupulous lessees return the leased item to the lessee after prolonged use and require the lessor to refund the "purchase price" of the leased item. In practice, Russian courts in most cases accept the residual value of accounting as the purchase price. This means that the leasing company must repay from 70 to 90% of the lease payments received.
This leads to unjustified enrichment on the part of the lessee (he receives income from the use of the leased item and its value), and losses on the lessor's side (losses in the form of expenses for the purchase of the leased item, payment of interest to the bank on borrowed obligations, insurance, losses for storage and further sale, etc.).
As a rule, in practice, the income from the sale of the leased item does not cover all the expenses of the leasing company and makes its activities ineffective. Leasing activity is a type of investment activity for the acquisition of property (leased object) and its transfer to leasing: the lessor, with the help of financial resources (including budgetary ones), provides a kind of financial service to the lessee.
When collecting the purchase price in a situation where the lessee has not compensated the lessor for the cost of purchasing the leased item, other expenses and income, or if, as a result of collecting the purchase price, such expenses will not be compensated and income will not be received, the question of the economic inexpediency of such financial activities definitely arises. As Russian practice shows, when considering cases from these cases, the courts simultaneously recover the purchase price from the lessor and losses from the lessee, i.e. from one legal fact, unjustified enrichment simultaneously "arises" for one party, and losses for the other.
However, the practice of considering cases of this category in Kazakhstani courts shows that lessors, on the contrary, often terminate lease agreements and demand the return of leased items, although the lessees have been paying lease payments in good faith for many years and after the expiration of the lease, the leased items should have become the property of the lessees.
Since it has been established that leasing is not only a type of investment activity, but also a financial service, its price is influenced by the financial stability of not only our country, but also the economic situation in the world as a whole.
The legal basis for the regulation of leasing is:
-The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan);
-The Civil Procedure Code of the Republic of Kazakhstan (CPC RK)
-The Law of the Republic of Kazakhstan dated 07/5/2000 No. 78 "On Financial Leasing" with amendments and additions dated 04/27/2015 No. 311-V.
-The Law of the Republic of Kazakhstan dated January 8, 2003 No. 373 "On Investments".
- The Customs Code.
-The Tax Code; -The Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" dated March 7, 2014, No. 176-V SAM.
- The Law of the Republic of Kazakhstan dated January 9, 2012 No. 534-IV "On State support for industrial and innovative activities".
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