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Protection of violated or disputed rights and interests of a citizen
Protection of Civil Rights
🔷 GENERAL CHARACTERISTICS
Article 9 of the Civil Code of the Republic of Kazakhstan (CC RK) establishes the foundations of the mechanism for civil-law protection of violated or disputed rights and interests. This article performs three key functions:
- Defines the forms and methods of rights protection;
- Regulates the conditions for their application;
- Ensures the right to full compensation for damages.
🔹 I. METHODS OF PROTECTING CIVIL RIGHTS (para. 1)
The list is not exhaustive, it is open: “as well as by other methods…”.
🔸 Main methods:
| Method | Comment |
|---|---|
| ✅ Recognition of a right | A demand to confirm the existence of a right (e.g., ownership or authorship). |
| ✅ Restoration of the situation | Restitution — restoring the situation to its pre-violation state (e.g., return of property). |
| ✅ Suppression of violations | Stopping actions that create a threat or violate a right (e.g., prohibition of construction). |
| ✅ Specific performance | Compelling the fulfillment of an obligation in its original form (e.g., delivery of a thing). |
| ✅ Recovery of damages, penalties | Financial compensation, including fines, penalties. See CC RK Art. 9(4), 350, 353. |
| ✅ Invalidation of transactions | See CC RK Arts. 157–162 — voidable and void transactions. |
| ✅ Compensation for moral harm | Available only to individuals. See CC RK Arts. 951–952. |
| ✅ Modification/termination of legal relations | For example, contract termination through court (CC RK Art. 401). |
| ✅ Challenging acts of state bodies | Possibility of declaring an act invalid or unenforceable (see also CPC RK Art. 292). |
| ✅ Recovery of fines from a state body | Rare method — applied when obstructing the exercise of a right. |
📌 Example: The court declared invalid an act of the akimat terminating a lease contract, as it violated the Land Code and CC RK norms (method — recognition of the act as invalid).
🔹 II. MORAL HARM AND LIMITATIONS (para. 1, sec. 2–3)
🔸 Legal entities are not entitled to claim compensation for moral harm. This is logical: legal entities lack the sphere of personal non-material goods.
🔸 Consumers may receive compensation for moral harm in pre-trial order through authorized bodies or public associations. See the Law of the RK “On Protection of Consumer Rights,” Art. 41.
📌 Example: A consumer was not refunded for an unrendered service — he received compensation for moral harm through mediation and a decision of the authorized body.
🔹 III. APPEAL TO STATE BODIES DOES NOT EXCLUDE COURT (para. 2)
🔸 Principle of alternative protection: a person may first appeal to a state body (e.g., antimonopoly committee) and then to court.
🔸 Exceptions: provided by special laws (e.g., mandatory pre-trial procedure — CPC RK Art. 152).
🔹 IV. SELF-HELP (para. 3)
🔸 The actual restoration of a violated right by the injured party is permitted if it is directly allowed by law and consistent with its purposes.
🔸 Examples of permissible self-help:· Retention of property until fulfillment of an obligation (CC RK Art. 629);· Repelling unlawful seizure of property (CC RK Art. 112 — necessary defense).
📌 Important: Self-help must not exceed reasonable limits and must not amount to arbitrariness (see CC RK Art. 389).
🔹 V. RIGHT TO FULL COMPENSATION FOR DAMAGES (para. 4)
🔸 Damages consist of two elements:
| Type of damages | Definition |
|---|---|
| ✅ Actual loss | Direct losses (damage to property, expenses). |
| ✅ Lost profit | Income that could have been earned if not for the violation. |
📌 Related norms:· CC RK Arts. 350–354 (liability for breach of obligations);· CC RK Art. 951 (compensation for harm);· CC RK Art. 1058 (non-contractual harm).
📌 Example: Destruction of the tenant’s equipment caused both repair costs (actual loss) and production downtime (lost profit).
🔹 VI. STATE LIABILITY (para. 5)
🔸 Compensation for damages caused by unlawful acts of state bodies or actions of officials is part of the state’s public liability.
🔸 The Republic of Kazakhstan or the respective akimat bears liability on the principle of objective fault.
📌 Example: A state body unlawfully refused to issue a license — a business entity lost profit. Damages are compensated from the budget (CC RK Art. 956, CPC RK Art. 292).
🔹 VII. PRESUMPTION OF FAULT (para. 6)
“Fault of the violator is presumed unless otherwise established…”
🔸 This means that the burden of proving absence of fault lies with the person who caused the harm (both in contractual and tort obligations).
📌 Related norms:· CC RK Art. 9(6) — general presumption;· CC RK Art. 350 — release from liability possible upon proof of absence of fault.
📌 Example: A contractor missed the deadline for completion of works. He must prove that this occurred due to reasons beyond his control (force majeure).
🔷 VIII. RELATED AND INTERNATIONAL NORMS
| Source | Provision | Applicability |
|---|---|---|
| Constitution RK | Art. 13 | Right to judicial protection of rights |
| CPC RK | Arts. 9, 14, 292 | Procedure for consideration of claims for protection of rights |
| CC RK | Art. 389 | Arbitrariness (limits of self-help) |
| Law “On Consumer Rights Protection” | Art. 41 | Compensation for moral harm |
| ICCPR (UN) | Art. 2 | Effective remedies of legal protection |
| ECHR | Art. 6 | Right to a fair trial |
🔷 IX. CONCLUSIONS
Article 9 of the CC RK is the cornerstone of the civil-law protection mechanism, which:
✅ guarantees restoration of violated rights;✅ provides a wide range of protection tools (including financial compensation and moral harm);✅ allows self-help and establishes state liability;✅ enshrines the presumption of fault of the violator — an important element for victims.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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