Мы не можем подтвердить или удостоверить правильность или соответствие текста данного документа. Всякий, использующий данный документ, делает это на свой риск и должен самостоятельно проверить правильность информации.
We cannot attest or verify the correctness or adequacy of the text of the document. Somebody using the document is doing so at his own risk and should independently verify the accuracy of the information.
The Civil Code of the Republic of Kazakstan
(The General Part)
The 27th of December, 1994
TABLE OF CONTENTS
Chapter 1. Regulation of Civil Rights Relations
Chapter 2. Subjects to Civil Rights
Paragraph 1. Citizens of the Kazakstan and Other Physical Persons
I. General Provisions
1. General Provisions
4. Limited Liability Partnerships
5. Additional Liability Partnerships
7. Subsidiary and Affiliate of a Business Partnership
V Non-Commercial Organizations
Paragraph 3. Participation of the State and Administrative and
Territorial Units in the relations which are regulated by the Civil
Legislation
Chapter 3. Objects in Civil Rights
1. General Provisions
3. Protection of Personal Non-Proprietary Rights
Chapter 5. Representation and the Power of Attorney
Chapter 6. Calculation of Terms
Chapter 7. Statute of Limitations
SECTIO№ 2. THE OWNERSHIP RIGHT AND OTHER MATERIAL RIGHTS
Chapter 8. The Ownership Right: General Provisions
Chapter 9. The Right to Business Authority
Chapter 10. The Right to operational Management
Chapter 13. Acquisition of the Ownership Right and of any Other
Material Rights
Chapter 14. Cessation of the Ownership Right and of any Other
Material Rights
Chapter 15. Protection of the Ownership Right and of any Other
Material Rights
SubSection 1. General Provisions Concerning Obligations
Chapter 16. The Concept and Bases for the Emergence of Obligations
Chapter 17. Fulfillment of Obligations
Chapter 18. Securing the Fulfillment of Obligations
1. General Provisions
Chapter 19. The Replacement of Persons in an Obligation
Chapter 20. Responsibility for Violation of Obligations
Chapter 21. Cessation of Obligations
SubSection 2. General Provisions Concerning Agreements
Chapter 22. Concept and Conditions
Chapter 23. Concluding Agreements
Chapter 24. Changing and Termination of Agreements
Decree of the Supreme Soviet of the Republic of Kazakstan Concerning the Implementation of the Civil Code of the Republic of Kazakstan (General Part) The 27th of December, 1994 № 269-II
SECTIO№ 1. GENERAL PROVISIONS
CHAPTER 1. REGULATION OF CIVIL RIGHTS RELATIONS
Article 1. Relations which are regulated by civil legislation
1. The civil legislation shall regulate commodity-money relations and other proprietary relations which are based on the equality of the participants, and also personal non-proprietary relations which are associated with proprietary relations. Citizens, legal entities, and also state, administrative, and territorial units shall be participants of the relations regulated by the civil legislation.
2. Personal non-proprietary relations which are not associated with proprietary relations, shall be regulated by the civil legislation, unless otherwise stipulated in the legislative acts or follows from the essence of a personal proprietary relations.
3. The civil legislation shall apply to family relations, labor relations and relations associated with the use of natural resources and the protection of the environment, which meet the requirements of paragraph 1 of this Article, in the cases where those relations are not regulated respectively by the legislation concerning family, labor, the use of the natural resources and the protection of the environment.
4. The civil legislation shall not apply to proprietary relations which are based on administrative or any other power subordinating one party by the other, including tax and other budget relations, except for the cases stipulated in the legislative acts.
Article 2. Fundamental basics of the civil legislation
1. The civil legislation is based on the recognition of the equality of the participants of the relations regulated thereby, the inviolability of property, freedom of agreement, the unacceptability of the arbitrary interference in a person's private affairs, the indispensability of the free exercise of civil rights, the provision for the restitution for violated rights and their defense in the court.
2. Citizens and legal entities shall acquire and exercise their civil rights by their will and in their interests. They shall be free in establishing their rights and obligations on the basis of agreement and in determining any conditions for the agreements, which do not contradict the legislation.
3. Goods, services and monetary resources shall unrestrictedly circulate in the entire territory of the Republic of Kazakstan. Restrictions in the circulation of goods and services shall be introduced in accordance with the legislative acts, where it is necessary for ensuring safety, protection of life and health of the people, protection of the natural environment and cultural valuables.
Article 3. Civil legislation of the Republic of Kazakstan
1. The civil legislation of the Republic of Kazakstan shall be for the entire Republic and it shall consist of this Code and any other laws of the Republic of Kazakstan, the Decrees of the Supreme Soviet of the Republic of Kazakstan (the legislative acts), Edicts and Decrees of the President of the Republic of Kazakstan, Resolutions of the Government of the Republic of Kazakstan, which are adopted in accordance with this Code, which regulate the relations indicated in paragraphs 1 and 2 of Article 1 of the present Code.
2. The provisions of the civil law which are contained in the legislation of the Republic of Kazakstan, including the legislation concerning family, housing, land, water, forestry and the protection of the environment, must comply with this Code. In the event of a contradiction between provisions of the civil law which are contained in any other legislative acts and provisions of the present Code, the provisions of the present Code shall apply. The provisions of the civil law which are contained in the legislation of the Republic of Kazakstan and which contradict the provisions of the present Code, may apply only after the introduction of appropriate amendments to the Code.
3. Civil relations may be regulated by traditions, including the traditions of business activities, unless they contradict the civil legislation which is effective in the territory of the Republic of Kazakstan.
4. The ministries and departments of the Republic of Kazakstan, and also local representative and executive bodies may issue acts which regulate civil relations in the cases and within the limits stipulated by the present Code and any other acts of the civil legislation.
5. The rights of the citizens and legal entities, which are established by the present Code and any other legislative acts of the Republic of Kazakstan may not be restricted by the acts of the bodies of state administration and local representative and executive bodies. Such acts shall be invalid from the moment of their adoption and must not be applied.
6. Foreign physical persons and legal entities and also stateless persons shall have the right to acquire the same rights and they shall be obliged to fulfill the same obligations which are stipulated in the civil legislation for the citizens and legal entities of the Republic of Kazakstan, unless the legislative acts stipulate otherwise.
7. Where an international treaty, to which the Republic of Kazakstan is a signatory, establishes different rules than those contained in the civil legislation of the Republic of Kazakstan, the rules of the mentioned treaty shall apply. The international treaties to which the Republic of Kazakstan is a signatory, shall apply to the civil relations directly, except for the cases where it ensues from a treaty that its application requires issuing of a domestic act of the Republic.
Article 4. The time effect of civil legislation
1. The acts of civil legislation shall not have the retroactive force and they shall apply to the relations which arise after their entering into force. The legal force of an act of the civil legislation shall extend to the relations which arose prior to its enactment in the cases where it is directly stipulated therein.
2. With regard to relations which arise prior to the enactment of a civil legislative act, it shall apply to the rights and obligations which arise after its enactment. The relations of parties in an agreement concluded prior to the enactment of the civil legislation act shall be regulated in accordance with Article 383 of this Code.
Article 5. Application of civil legislation by analogy
1. In the cases where the relations stipulated in paragraph 1 and 2 of Article 1 of this Code are not directly regulated by the legislation or the agreement of the parties, and traditions do not exist which are applicable to such relations, the provisions of the civil legislation shall apply to them, which regulate similar relations (by analogy of law) as long as they do not contradict their essence.
2. Where it is impossible in the indicated cases to use the analogies of law and the obligations of the parties shall be determined on the basis of the common fundamentals and the essence of the civil legislation and the requirements of fairness, reason and justice analogy of law).
Article 6. Interpretation of provisions of the civil legislation
1. Provisions of the civil legislation must be interpreted in accordance with the literary sense of their word meanings. Where the possibility exists of a different understanding of the words used in the text of the legislative provisions, preference shall be granted to the understanding corresponding to the provisions of the Constitution of the Republic of Kazakstan and the fundamental principles of the civil legislation which are outlined in this Chapter, and first of all in Article 2.
2. When identifying the precise meaning of a provision in the civil legislation, it shall be necessary to consider the historic conditions under which it was introduced and its interpretation in the judicial practice unless it violates the requirements stipulated in paragraph 1 of this Article.
Article 7. Basis for the emergence of civil rights and obligations
The civil rights and obligations shall arise on the grounds which are stipulated in the legislation and also from the actions of the citizens and legal entities which although are not stipulated in it, but by virtue of the common fundamentals and the essence of the civil legislation give rise to civil rights and obligations.
In accordance with this, civil rights and obligations shall arise as follows:
1) out of agreements and any other transactions contemplated by legislation, and also from the transactions which although are not stipulated in it, but do not contradict legislation;
2) from administrative acts which give rise to the civil legal consequences by virtue of the legislation;
3) from court decisions which establish civil rights and obligations;
4) as a result of creating or acquiring assets on the grounds which are not prohibited by the legislative acts;
5) as a result of creating inventions, industrial samples, scientific works, literature and art and any other results of intellectual activity;
6) as a result of inflicting damage upon another person, and equally as a result of the unfounded acquisition or saving assets at the expense of another person (groundless enrichment);
7) as a result of any other actions of citizens and legal entities;
8) as a result of the events with which the legislation associates the emergence of the civil rights consequences.
Article 8. Exercise of a civil right
1. Citizens and legal entities at their discretion shall exercise the civil rights which belong to them, including the right of their protection.
2. The refusal of citizens and legal entities from exercising their rights shall not entail the cessation of those rights, except for the cases which are stipulated in the legislative acts.
3. The exercise of the civil rights must not violate the rights and the interests protected by law of other legal persons and it must not cause any harm to the environment.
4. Citizens and legal entities must act honestly, reasonably and fairly when exercising their rights, complying with the requirements which are contained in the legislation, the moral principles of the society, and entrepreneurs also with the rules of business ethics. This obligation may not be excluded or restricted by any agreement. The fairness, reasonableness and honesty of the actions of the participants of civil rights relations shall be presumed.
5. The actions of citizens and legal entities shall not be acceptable if they are aimed at causing harm to any other person, abusing the right in any other forms and also at exercising the right in contradiction to its designation. In the case of a failure to comply with the requirements stipulated in paragraphs 3 to 5 of this Article, a court may refuse a person the protection of the right which belongs to him.
Article 9. Protection of civil rights
1. The protection of the civil rights shall be exercised by the court, arbitration tribunal or intermediate court by the way of: recognition of the rights; restitution of the position which existed prior to the violation of the right; discontinuance of the actions which violate the right or create the threat of its violation; compulsion of the execution of an obligation in kind; compensation of losses; forfeit; recognition of the transaction as invalid; compensation of moral losses; termination or alteration of legal relations; the recognition as invalid or non-applicable of all acts which do not comply with the legislation of a body of state administration or a local representative or executive body; the imposition of a fine on the state body or from an official for impeding a citizen or a legal entity in the acquisition or exercise of their rights and also in the other ways which are stipulated in the legislative acts.
2. The appeal for the protection of a violated right to an authority or administration shall not exclude the appeal to the court with the action to protect the right, unless the legislative acts stipulate otherwise.
3. In the cases which are specifically stipulated in the legislative acts, the protection of civil rights shall be carried out directly by actual or legal actions of the person whose right is violated (self-defense).
4. The person whose right is violated may require the entire restitution of the losses cause to him, unless the legislative acts or the agreement do not stipulate otherwise. The expenditure shall be understood to mean losses, which are incurred or must be incurred by the person whose right is violated, the loss or the damage to his property (real damage) and also the lost profit which this person would have received under the normal conditions of business if his right has not been violated (lost profits).
5. The losses which are caused to a citizen or a legal entity as a result of the issuing by a governmental body of an act which does not comply with the legislation or by any other state body and also by the actions (failure to act) of the officials of those bodies, shall be subject to compensation by the Republic of Kazakstan or appropriately by the administrative and territorial unit.
6. Where the emerging of the legal consequences of the violation depends on the guilt of the violator, his guiltiness shall be presumed, except for the cases where the legislative acts stipulate otherwise.
Article 10. Protection of the rights of entrepreneurs and consumers
1. Entrepreneurship shall be the initiative activity of citizens and legal entities, irrespective of the form of ownership, which is aimed at the extraction of profits or personal income by way of satisfying the demand for goods (work, services) which is based on private property (private entrepreneurship) or under the right to business authority of a state enterprise (state entrepreneurship). Entrepreneurial activity shall be carried out on behalf of, under the risk, and under the proprietary liability of the entrepreneur.
2. The State shall guarantee the freedom of entrepreneurial activities and it shall ensure its protection and support.
3. The rights of entrepreneurs who carry out the activities which are not prohibited by the legislation shall be protected as follows:
1) by the opportunity to carry out entrepreneurial activities without obtaining anyone's, permissions, except for the types of activity which are to be licensed;
2) by the simplest procedure for the registration of any types of entrepreneurship in any sphere of the economy by one authority by way of a simple arrival there;
3) by restricting through the legislative acts of the audits which are carried out by state bodies;
4) by the compulsory termination of entrepreneurial activities only based upon the decision of the court which is made on the basis of a ground stipulated in a legislative act;
5) by the establishment through the legislative acts of the list of work, types of goods and services which are prohibited for private entrepreneurship, prohibited or restricted for export and import;
6) by bringing state bodies, officials and any other persons and organizations to the property responsibility before the entrepreneur for the illegal impediments to their activities;
7) by any other means which are stipulated by legislation.
4. The manufacture and sale of certain types of goods, work and services because of the considerations of national security, ensuring law and order, the protection of the environment, property, life and health of citizens may be carried out in accordance with the State licenses. The list of such goods, work and services shall be determined by the legislative acts or according to the procedure established by them.
5. The commercial (entrepreneurial) secret shall be protected by law. The procedure for identifying the information which constitutes a commercial secret, the means of its protection and also the list of information which must not be included among commercial secrets shall be established by the legislation.
6. The protection of the rights of consumers shall be ensured by the means which are envisaged by this Code or any other legislative acts. Each consumer shall have in particular the right to free entering of agreements to purchase goods, use work and services, proper quality and safety of goods (work, services); full and reliable information on goods (work, services); join public associations of consumers.
Article 11. Unacceptability of abusing freedom of entrepreneurship
1. Monopolist and any other activities which are aimed at restricting or eliminating legal competition, the obtaining of ungrounded advantages, the restriction of the rights and of the legal interests of consumers shall not be permitted.
2. The use by entrepreneurs of the civil rights for the purpose of restricting competition, shall not be permitted, except for the cases stipulated in the legislative acts including amongst those:
1) the abuse by entrepreneurs of their dominant position in the market, in particular, by way of restricting or terminating the production or reserving from the circulation of any goods for the creation of their shortages or increasing the prices;
2) concluding and executing by the persons which carry out similar entrepreneurial activities of the agreements concerning prices, subdivision of markets, elimination of any other entrepreneurs and on any other conditions which significantly restrict competition;
3) commitment of unfair actions which are aimed of the restriction of legal interests of a person who conducts similar entrepreneurial activities and of the consumer (unfair competition), in particular, by way of misleading consumers in respect of the manufacturer, designation, method and place of manufacture, quality or any other properties of the commodity of any other entrepreneurs by way of incorrect comparison of goods in advertising and any other information, copying external design of somebody else's commodity and by any other- means. The remedies to right the unfair competition shall be established by the legislative acts.
CHAPTER 2. SUBJECTS IN THE CIVIL RIGHTS
Paragraph 1. The Citizens of the Republic of
Kazakstan and Other Physical Persons
Article 12. The concept of a physical person
Physical persons shall be understood as citizens of the Republic of Kazakstan, citizens of any other states and also stateless persons. The provisions of this chapter shall apply to any physical persons, unless otherwise established by this Code.
Article 13. The legal capacity of citizens
1. The capacity to have civil rights and bear obligations (the civil rights capacity) shall be recognized as equal in all citizens.
2. The legal capacity of a citizen shall arise at the moment of his birth and it shall cease with his demise.
Article 14. The principal meaning of the legal capacity of a citizen
A citizen may have, under his right to own, properties including foreign currency, both within the boundaries of the Republic of Kazakstan and outside its borders, inherit and bequeath property, freely move in the territory of the Republic and select a place of residence, freely leave the boundaries of the Republic and return to its territory, engage in any activities which are not prohibited by the legislative acts, create legal entities independently or with other citizens and legal entities, commit any transactions which are not prohibited by legislative acts, participate in transactions, have the right to intellectual property on the invention, scientific works, literature and art and any other results of' intellectual activity: claim compensation for financial and moral damage; have any other proprietary and personal right.
Article 15. The name of a citizen
1. A citizen shall acquire and exercise the rights and obligations under his name including the surname and proper name and at his discretion the patronymic name.
2. The legislation may stipulate the cases of anonymous acquisition by citizens of the rights and fulfillment of obligations or the use of a pen name (fictitious name).
3. The name which is received by a citizen at his birth and also a change of' the name shall be subject to registration in accordance with the procedure established by the legislation concerning the registration of the acts on the civil status.
4. A citizen shall have the right to change his name in accordance with the procedure established by the legislative acts. The change shall not be the basis for the cessation or alteration of his rights and obligations which are acquired under the former name, anonymously, or under a pen name.
5. A citizen shall be obliged to adopt the necessary measures to notify his debtors and creditors of the change of his name and shall bear the risk associated with the consequences which are caused by the unawareness of those persons of the change of his name.
6. A citizen who has changed his name shall have the right to require the introduction of the appropriate amendments into the documents formulated for his former name.
7. The acquisition of the rights and obligations under the name of a different person shall not be permitted.
8. A citizen shall have the right to require the prohibition of the use of his name where it was done without his consent.
9. The harm caused to a citizen as a result of the illicit use of his name shall be subject to compensation in accordance with the provisions of this Code.
In the case of a distortion or use of the name or a citizen by ways or in a form which affect his honor, dignity, or business reputation, the rules shall apply which are stipulated in Article 143 of this Code.
Article 16. The place of residence of a citizen
1. A populated area where a citizen permanently or predominantly resides shall be the place of residence of the citizen.
2. The place of the residence of the parents, adopters, and guardians shall be recognized to be the place of residence of persons who have not reached 14 years or age or citizens who are under a guardianship.
Article 17. Deed capacity of citizens
1. The capacity of a citizen by his deeds to acquire and exercise the civil rights, create for himself civil obligations and fulfill them (citizen's deed capacity) shall arise in its full volume with the advent or the age of majority that is upon reaching 18 years of age.
2. In the situation where legislative acts permit entering marriage prior to the reaching of eighteen years age, the citizen who has not reached 18 years of age shall acquire the deed capacity in its full volume from the moment of entering marriage.
3. All citizens shall have an equal deed capacity unless otherwise stipulated in the legislative acts.
Article 18. Unacceptability of deprivation and restriction of legal capacity and deed capacity
1. Nobody may be restricted in legal capacity and deed capacity other than in the cases and in accordance with the procedure stipulated in the legislative acts.
2. The non-compliance with the conditions and the procedure established by the legislative acts for restricting legal capacity and deed capacity of citizens or of their right to engage in entrepreneurial or any other activities, shall entail the invalidity of the act of the state body or any other authority which established that restriction.
3. An entire or partial refusal of a citizen of his legal capacity or deed capacity and any other transactions which are aimed at restricting the legal capacity or deed capacity, shall be invalid except for the cases where such transactions are permitted by the legislative acts.
Article 19. Entrepreneurial activities of citizens
1. Citizens shall have the right to engage in entrepreneurial activities without creating legal entities except for the cases stipulated in this Code, from the moment of state registration.
2. The State registration of private entrepreneurs shall have a simple arrival nature and it shall consist in getting registered as an individual entrepreneur.
3. The rules of this Code which regulate the activities of the legal entities which are commercial organizations shall appropriately apply to entrepreneurial activities unless otherwise follows from the legislation or the essence of the legal relation.
4. The following citizens who carry out entrepreneurial activities without the formation of legal entities shall be exempt from state registration:
1) those who are part of a peasant farm;
2) those who carry out one-time work on the basis of a contract agreement and any other civil rights agreement;
3) those who engage, outside of the wholesale and retail trade network, in selling the assets which belong to them and also products which are manufactured, including foreign industrial and food commodities, in the places which are specifically allocated for those purposes and through second-hand shops;
4) the citizens whose earnings from selling work. and services do not exceed 20 minimum wages per annum. Accounting for the indicated citizens as taxpayers and the procedure for their taxation shall be carried out in accordance with tax legislation.
5. Citizens who carry out entrepreneurial activities without the formation of a legal entity, shall operate on a purchased patent. The patent at the same time shall be the certificate of the state registration of the citizen as entrepreneur and it shall be a license which grants the right to carry out the entrepreneurial activities stipulated in the patent. The procedure for issuing patents and the amount of the patent fee shall be determined by the Cabinet of Ministers of the Republic of Kazakstan.
Article 20. Proprietary responsibility of a citizen
1. A citizen shall be liable for his obligations with all the assets that belong to him except for the assets upon which , in accordance with legislative acts, a claim may not be imposed.
2. The list of assets of citizens upon which claims may not be imposed shall be established by the Civil Procedure Code of the Republic of Kazakstan.
Article 21. Bankruptcy of an individual entrepreneur
1. An individual entrepreneur who is in no position to satisfy the claims of creditors which are associated with his performance of entrepreneurial activities, within three months, may be recognized bankrupt in accordance with Article 52 of this Code. The registration of a citizen as an individual entrepreneur shall become invalid from the moment of the recognition of the individual entrepreneur as bankrupt.
2. When carrying out the procedure of recognizing an individual entrepreneur bankrupt, his creditors on the obligations which are not associated with his performance of entrepreneurial activities, shall also have the right to present their claims. The claims of the mentioned creditors which are not declared by them at such a procedure, shall retain force after the completion of the procedure of bankruptcy of the individual entrepreneur. In any case, the claims of the citizens to whom the person declared as bankrupt bears the responsibility for causing harm to life and health shall retain their force as well as any other claims of a personal nature.
3. Satisfaction of the claims of creditors of an individual entrepreneur in the case of recognizing him as bankrupt, shall be carried out at the expense of the property which belongs to him (Article 20 of this Code) in the following sequence:
1) in first place, the claims shall be satisfied which are associated with the payments of alimony and also Use claims to compensate harm caused to life and health;
2) in second priority, the settlement shall be made with respect to labor payments to the persons who work under employment agreements and to pay remuneration on authorship agreements;
3) in third priority, those claims of creditors shall be satisfied. which are secured with the pledge of property belonging to the individual entrepreneur;
4) in fourth priority, the debt shall be repaid upon the obligation associated with compulsory payments to the budget and to the non-budgetary funds;
5) in fifth priority, settlements shall be made with other creditors in accordance with legislative acts. The satisfaction of the claims of the creditors in each category shall be carried out in accordance with the rules stipulated in Article 51 of this Code.
4. Upon completion of' the settlements with the creditors, the individual entrepreneur who is recognized as bankrupt shall be free from the fulfillment of remaining obligations which are associated with his entrepreneurial activities, and any other claims which are presented for execution and taken into account when recognizing the entrepreneur as bankrupt, except for the cases which are stipulated in paragraph 2 of this Article.
Article 22. Deed capacity or minors from fourteen to eighteen years old
1. Minors in age from fourteen to eighteen years shall conduct transactions with the consent of their parents, adopters, or guardians. The form of such consent must comply with the form which is established by legislation for transactions conducted by a minor.
2. Minors in the age from fourteen to eighteen years old shall have the right to independently dispose of' their wagers, grants and any other income and the items in the right of intellectual property, which are created by them. and also to commit small day-today transactions.
3. Where sufficient reasons exist the body of adopting and guardianship can restrict or deprive the minor of the right to independently dispose of his wages, grants and any other income and of the pieces of intellectual property created by him.
4. Minors in the age from 14 to 18 years shall independently bear responsibility with respect to the transactions conducted by them in accordance with the rules of this Article and they shall bear responsibility for the harm caused by their actions in accordance with the rules or this Code.
Article 23. Deed capacity of the minors from fourteen to eighteen years old
1. For minors who have not reached 14 years of age, transactions shall be conducted by the parents, adopters, or guardians on their behalf, unless otherwise stipulated in the legislative acts.
2. Minors under the age of 14 years shall have the right to independently conduct only small day-to-day transactions which are appropriate for their age and which are executed at the same time when they are conducted.
Article 24. The consent of the bodies of adopting and guardianship to conduct transactions by minors and for minors
Legislative acts may establish the instances where the conducting of a transaction by a minor and for a minor shall first require the consent of the body of adopting and guardianship.
Article 25. The right of minors to deposit and dispose of savings in banks
1. Minors shall have the right to deposit savings into banks and to independently dispose of the savings which are deposited by themselves.
2. The savings which are deposited by somebody else on behalf of minors who have not reached 14 years of age, shall be disposed of by their parents or any other legal representatives, while minors who have reached 14 years of age shall independently dispose of the savings deposited by somebody else on their behalf.
Article 26. The recognition of a citizen an incompetent
1. A citizen who as a result of psychic disease or mental weakness cannot understand the meaning of his actions or direct them may be recognized by the court as incompetent, in consequence thereof guardianship shall be established over him.
2. Transaction shall be carried out by the guardian on behalf of the citizen who is recognized as incompetent.
3. In the case of a recovery or the significant improvement of the health of an incompetent person, the court shall recognize him as capable, after which the guardianship shall be withdrawn from him.
Article 27. Restrictions of the capacity of citizens
1. A citizen who as a result of the abuse of alcoholic drinks or narcotic substances puts his family into a difficult financial position, may be restricted by the court in deed capacity in accordance with the procedure established by the Civil Procedure Code of the Republic of Kazakstan. A guardianship shall be established over him. He shall have the right to independently conduct small daily transactions. The conducting of any other transactions and also receiving of wages, pensions and any other benefits and disposing of them he may only with the consent of the guardian.
2. Where a citizen stops the abuse of alcoholic drinks or narcotic substances, the court shall abolish the restrictions of his capacity. The guardianship established over the citizen shall be abolished on the basis of a court decision.
Article 28. The recognition of a citizen as absent in location unknown
1. A citizen may be, upon the application of the interested persons, recognized by the court as absent in location unknown, if within one year in the place of his residence there is no information on him.
2. When it is impossible to establish the date of receipt of the last information on a missing person, the beginning of the absence in obscurity shall be deemed to be the first date of the month following the one in which the last information was received on the absentee, and in the case where it is impossible to establish that month, it shall be the first of January of the next year.
Article 29. The protection of the assets of a person absent in location unknown
1. The property of a person who is recognized as absent in location unknown on the basis of a court decision, a guardian shall be established. Subsistence shall be paid from that property to the person whom the missing in obscurity was to support in accordance with the Law and his debts shall be repaid with respect to taxes and any other obligations of the person absent in location unknown.
2. Upon the application of the interested parties, the body of adopting and guardianship may appoint a guardian to guard and manage the property until the expiration of one year from the date of the receipt of the last information on the place of location of the absent person.
Article 30. The Abolition of the decision to recognize a person as absent in location unknown
In the case of his arrival or establishment of the place of location of the person who is recognized as absent in location unknown, the court shall abolish the decision to recognize him as absent in location unknown and to establish the guardianship over his property.
Article 31. Declaration of a citizen as deceased
1. The court may declare a citizen as deceased if at the place of his residence there is no information on him at the place of his residence within three years, and if he disappeared under the circumstances which threatened death or which give grounds to assume his demise within six months in an accident.
2. A military serviceman or any other person who disappeared in relation to military actions, may be declared deceased not earlier than upon the expiration of two years from the date of the termination of the military action.
3. The date of the demise of a person who is declared deceased shall be the day of the entering into legal force of the resolution of the court, which declared him deceased. In the cases of the declaration as deceased a person who disappeared without notice under circumstances which threatened death or which gave rise to the assumption of his demise in an accident, the court may recognize the date of the assumed demise of this person as the date of his death.
4. On the basis of the decision of a court, declaring a person as deceased, which entered into force, an entry shall be made of his death in the books of the registration of the acts of the civil status. The consequences of the entry shall be the same as the entry of the actual death.
Article 32. Consequences of the arrival of a person declared deceased
1. In the case that the person arrives or the place is established where he, stays who has been declared deceased, the relevant decision of the court shall be annulled.
2. Irrespective of the time of his arrival, the citizen may claim from any person to return the assets that have been preserved, which assets were freely transferred to that person after the declaration of the citizen as deceased.
3. If the properties of the person declared deceased were alienated by his legal successor to third parties, which at the moment of the return of the person have not paid entirely the purchase price, then the right to claim the unpaid amount shall transfer to the returned person.
4. The persons to whom the property of a citizen who was announced as dead was transferred on the compensatory transactions, shall be obliged to return to him those assets, and in case they do not have it, to compensate him for the value, if it is proved that at the moment of the acquisition of the property they knew that the citizen who was announced deceased, is alive.
5. The alienator of the assets who knew at the moment of the alienation that the person declared deceased was alive, shall bear, jointly and severally with the buyer, the responsibility to return or compensate for the value of the property.
6. Where the property of a person who is declared deceased is transferred by the right to inherit to the state and is sold, then after annulment of the decision to declare the person as deceased, he shall be repaid the amount which is received from the selling of his property, considering its market value on the date of the payment.
1. General Provisions
Article 33. The concept of a legal entity
1. The legal entity shall be recognized as an organization which has in accordance with the right to own, the right of business authority or operational management, its separate assets and which organization is liable with this property in respect of its obligations, which may in its name acquire and exercise proprietary and personal non-property rights and obligations, be the plaintiff and defendant in the court. A legal entity must have its independent balance-sheet or budget.
2. A legal entity shall have the seal with its name.
Article 34. The types and forms of legal entities
1. A legal entity can mean any organization which pursues the making of profit as the principal purpose of its activities commercial organization), or which does not have the making of profit as such a goal and which does not distribute the made profits between the participants (noncommercial organization).
2. A legal entity which is a commercial organization (enterprise) may be formed in the form of a state enterprise, a business partnership, or production cooperative.
3. A legal entity, which is a non-commercial organization, may be created in the form of an institution, a public association, a consumer cooperative, a public foundation, a religious association and any other form which is provided in the legislative acts. A non-commercial organization may engage in entrepreneurial activity only for as long as it complies with the objectives of its charter.
4. Legal entities may create associations.
5. A legal entity, shall act on the basis of the present Code, the Law concerning each type of legal entities, :any other legislative acts and then foundation documents.
Article 35. The legal capacity of a legal entity
1. A legal entity may have the civil rights and bear the responsibilities which are related to its activity in accordance with the present Code. A legal entity may engage in certain types of activities, the list thereof is established by the legislative acts, only on the basis of a license.
2. The legal capacity of a legal entity shall arise at the moment of its creation and it shall cease at the moment of the completion of its liquidation. The legal capacity of a legal entity in a sphere of activities the involvement of which requires a license, shall arise from the moment of the procurement of such license and it shall cease at the moment of its revocation, the expiration of the term of its validity, or recognition of the license as void in accordance with the procedure established by the legislative acts.
Article 36. Rights of the founders (participants) to the property of legal entities formed by them
1. In regard to the separate property of legal entities, their founders (participants) may have obligatory or material rights.
2. The legal entities of which the participants shall retain obligatory rights to the assets shall be the business partnership and cooperatives.
3. The legal entities, to the property of which their participants shall retain the right of ownership or any other material right, shall mean organizations which possess the property on the basis of the right of business management or the right of operative administration.
4. The legal entities to the property of which their participants (founders) do not retain the property rights shall mean public associations, public funds and religious associations.
Article 37. Bodies of a legal entity
1. A legal entity shall acquire civil rights and it shall assume civil obligations through its bodies which are operative in accordance with the legislative acts and the foundation documents.
2. In the cases which are provided in legislative acts, a legal entity may acquire civil rights and assume civil obligations through its participants and representatives.
3. The types of procedure of appointing or relocating the bodies of a legal entity and their powers shall be determined in the foundation documents.
Article 38. The name of a legal entity
1. A legal entity shall have its name which distinguishes it from other legal entities. The name of a legal entity shall include its name and information on the organizational-legal form. It may include additional information which is provided for by legislation. The name of a legal entity shall be indicated in its foundation documents.
In the name of a legal entity it shall be prohibited to use names which contradict the requirements of legislation or the norms of public morals; the proper names of persons if they do not comply with the names of the participants or if the participants have not obtained the permission of those persons (their legal successors) to use the proper name; the designation of organization legal forms accepted in other countries; terms which are not provided by the present Code.
The use in the name of a legal entity of the indications of the official sate names and nations, (both full or abbreviated) is permitted in the order defined by the Government of Kazakstan.
2. A legal entity which is a commercial organization must have its trade name. A legal entity, the trade name of which is registered in accordance with the established procedure, shall have the exclusive right to its use. A person who illegitimately uses somebody else's registered commercial name, at the request of the owner of the right to the trade name ,shall be obliged to terminate the use of such name and compensate for the losses caused. The right of obligation of a legal entity which are associated with the use of a trade name shall be determined in the legislative acts.
Article 39. The place of location of a legal entity
1. The place of location of a legal entity shall be recognized as the place where its permanent operational body is located.
2. The place of location of a legal entity shall be indicated in its foundation document where its full postal address is written.
Article 40. The founders of a legal entity
1. A legal entity may be founded by one or several founders.
2. Founders of a legal entity may be the owners of the assets at the bodies and persons authorized with them and in the cases specifically provided in the legislative acts any other legal entities. In that respect the legal entities which own the property under the right of business competence or operative management may be the founders of other legal entities with the consent of the owner or the authorized
Article 46. Succession at the reorganization of a legal entity
1. When legal entities merge, the right and obligations of each of them are transferred to the newly emerged legal entity in accordance with the act of conveyance.
2. When a legal entity is joining another legal entity, the latter shall obtain the right and obligations of the joined legal entity in accordance with the act of conveyance.
3. When dividing a legal entity, its rights and obligations shall be transferred to the newly emerged legal entity in accordance with the division balance.
4. When allocating from the composition of a legal entity of one or several legal entities to each of them in accordance with the division balance go the rights and obligations of the reorganized legal entity.
5. When transforming a legal entity of one type into a legal entity of another type (change of organizational - legal form) the rights and obligations shall be transferred to the newly emerged legal entity in accordance with the conveyance act.
Article 47. The conveyance act and the division balance
1. The property right and obligation of reorganized legal entity shall be transferred to the newly created legal entity when merging and adjoining in accordance with the conveyance act and in division and separation in accordance with the division balance. The conveyance act and division balance must contain the provisions concerning the legal successorship in respect of any obligations of the reorganized legal entity in respect of all its creditors and debtors including the obligations which are be challenged by parties.
2. The conveyance act and division balance shall be confirmed by the owner of the property of the legal entity or the body which adopted the decisions of reorganized legal entity and they shall be presented together with the foundation documents for the registration of the newly emerged legal entity or the introduction of changes to the foundation documents of existing legal entities. The failure to present together with the foundation documents of the act on transfer or division balance and also the absence in them of provisions concerning legal succession in respect of the obligations of the reorganized legal entity shall result in the refusal of the state registration of the newly emerged legal entities.
3. The assets (rights and obligations) shall be transferred to the legal successor on the moment of its registration unless otherwise provide in legislative acts or the decision concerning reorganization.
Article 48. Guarantees of the rights of creditors in reorganization of a legal entity
1. The owner of the assets of the legal entity or the body which adopted the decision to reorganize the legal entity, are obliged to notify its creditors in writing of the reorganized legal entity.
2. When dividing or separating, a creditor of the reorganized legal entity shall have the right to demand a prior determination of the obligation, the debtor of which is the legal entity, and compensating the losses.
3. Where the division balance does not provide the opportunity to identify the legal successor of the reorganized legal entity the newly emerged legal entity shall bear solitary responsibility in respect of the obligation reorganized legal entity before its Creditor.
Article 49. The basis for the liquidation of a legal entity
1. Upon the decision of the owner of its property or the body authorized by the owner, and also upon the decision of the body of the legal entity, so authorized by the foundation documents, a legal entity can be liquidated on any basis;
2. Upon the decision of a court, a legal entity may be liquidated in the following cases:
1) bankruptcy;
2) recognition as invalid the registration of a legal entity in consequence of violations of the law which were allowed when forming it, and which have an incurable nature;
3) systematic realization of activity which contradict the authorized purposes of the legal entity;
4) realizing activities without appropriate permission (license) or activities prohibited by the legislative acts or repeated or serious violation of legislation;
5) in any other cases which are provided by legislative acts.
3. The claim to liquidate a legal entity on the grounds indicated in item two of paragraph one of this article may be presented to court by the state body to which the right to present such a requirement is granted by law and in the cases of bankruptcy also by a creditor. On the decision of the court to liquidate a legal entity, the obligations in respect of carrying out the liquidation of a legal entity may be delegated to the owner of its property, the body authorized by its owner, the body authorized to conduct the liquidation of the legal entity by its foundation documents or any other body (person) appointed by the court.
Article 50. Procedure for the liquidation of a legal entity
1. The owner of the assets of a legal entity, or the body which adopted the decision to liquidate a legal entity, shall be obliged to communicate that immediately in writing to the body of justice which conducts the registration of legal entities and which enter into the state register of legal entity the information concerning the fact that the legal entity is in the process of liquidation.
2. The owners of the assets of a legal entity, or the body which adopted the decision to liquidate a legal entity, shall appoint a liquidation commission and establish in accordance with the present Code, the procedure and dates for the liquidation. From the moment of the appointment of the liquidation commission, the powers in respect of managing the property and concluding transactions shall be transferred to it. The liquidation commission on behalf of the liquidating legal entity shall speak in the court.
3. The liquidate commission shall place in the press of municipal (regional) administration publications concerning the liquidation and the procedure and dates for making claims by creditors. That period may not be less than 2 months from the moment of publication of the liquidation. The liquidation commission shall adopt the measures to identify creditors and to collect the debts and also shall notify in writing notify the creditors of the legal entity of the liquidation.
4. Among the expiration of the term for presenting claims by the creditors, the liquidation commission shall compile the intermediate liquidation balance which contains the information concerning the composition of the assets of the liquidating legal entity, the list of claims declared by the creditors, as well as the results of their consideration. The intermediate liquidation balance shall be approved by the owner of the property legal entity or the body which adopted the decision for the liquidation of the legal entity.
5. Where the monetary resources which are available to the legal entity liquidation (except foreign institution) are insufficient for the satisfaction of the claims of creditors, the liquidation commission shall effect the sale of the assets of the legal entity in a public auction in accordance with the procedure established for the execution of court decisions.
6. The payments of cash amounts to creditors of a legal entity in liquidation shall be carried out by the liquidation commission in the procedure of priority which is established by Article 51 of the present Code, in accordance with the intermediate liquidation balance starting from the date of its approval.
7. Upon the completion of settlements with the creditors, the liquidation commission shall compile the liquidation balance which shall be approved by the owner of the assets of the legal entity or the body which adopted the decision on the liquidation of the legal entity.
8. The assets which remain upon the satisfaction of requirements of the creditors shall be used for the purposes specified in the foundation documents .
9. In the case of a shortage of assets of a liquidating state enterprise, and in the case of a liquidating institution of the monetary resources for the satisfaction of the claims of creditors, the latter has the right to appeal to Court with the actions to satisfy remaining part of the requirements at the expense of the claims of the expense of the owner of the assets of the enterprise or the institution.
10. The liquidation of a legal entity shall be deemed accomplished, and the legal entity as having terminated its existence, upon the entry to that effect in the state register of legal entities.
Article 51. Satisfaction of creditor claims
1. When liquidating a legal entity, the claims of its creditors shall be satisfied in the following order:
1) In the first priority shall be satisfied the claims of citizens before whom the liquidated enterprise bears responsibility for causing harm to health and life by the way of capitalization of the corresponding payments by time. In the relevant timely payments, these periodical payments;
2) In second priority, the settlements shall be conducted in respect to labor payments to the persons who work in accordance with labor agreements and payments of remuneration according to authorship agreements;
3) In third priority, are satisfied the claims of creditors on obligations and secured with the pledge of property of the legal entity in liquidation;
4) In fourth priority, is satisfied the debt shall be repaid in respect of the compulsory payments to the budget and non-budgetary funds;
5) In fifth priority, are produced payments to the other creditors in accordance with legislative acts.
2. The requirements of each priority shall be satisfied upon the complete satisfaction of the claims of the previous priority.
3. When assets of the liquidated enterprise are not sufficient, they shall be distributed among the creditors of the relevant turn in proportion to the amount of in claims which is subject to satisfaction unless otherwise established by the law.
4. In the case of the refusal of the liquidation commission to satisfy the claims of a creditor or evasion of consideration, the creditor shall have the right, prior to the approval of the liquidation balance of the legal entity, to appeal to the court with a legal action against the liquidation commission. Upon the decision of the court, the requirements of a creditor may be satisfied at the expense of the remaining assets of the legal entity in liquidation.
5. The remaining assets, upon the satisfaction of the claims of creditors, shall be transferred to the owner or the founders (founders) who have material rights upon in respect of those assets obligatory rights in respect of the legal entity unless otherwise is provided in the legislation or foundation documents of the legal entity .
6. The claims of a creditor which are not satisfied because of the shortage of assets of the legal entity in liquidation, and also those which arc not claimed before the approval of the liquidation report, shall be deemed to be satisfied. Similarly the claims of creditors which are not recognized by the liquidation commission shall be deemed to be repaid if the creditor did not appeal with the suit in court, and the claims, which the satisfaction to the creditor for which has been rejected by the court.
Article 52. Bankruptcy
1. Bankruptcy shall mean a stable inability of a debtor of the individual entrepreneur or legal entity to satisfy the claims of its creditors and to pay taxes and other obligatory payments as a consequence of exceeding of the obligations of the debtor over his property.
2. The debtor shall be acknowledged bankrupt on the decision of a court.
Article 53. The basis of bankruptcy
1. Bankruptcy may be realized voluntarily or compulsorily.
2. The reason for voluntary bankruptcy is the statement of the debtor in court. The reason for initiation of proceedings on involuntary bankruptcy shall be the claim of the creditor (creditors).
3. External sign of bankruptcy serving as a sufficient reason for initiation of proceedings by the court on the bankruptcy according to the claim of the creditor (creditors) shall be suspension of payments by him at least on one of his obligations within three months from the moment the payment date comes.
4. The application which is submitted by the debtor to recognize him as insolvent may not be revoked without the appropriate decision of the a court. The application of a creditor(creditors) may be revoked prior to the adoption by the court of the decision on the recognition of the debtor as insolvent.
5. The decision on instituting of a liquidation procedure and to recognize the insolvent debtor as bankrupt is publish by the court in official press to the account of the debtor.
6. The basis, order and procedure for recognizing a debtor as bankrupt, are defined by the present Code and other legislative acts.
Article 54. Rehabilitation procedures on cases in bankruptcy
1. An insolvent debtor or the owner (representative of the owner) of his property may submit a petition to suspend the bankruptcy case and to undertake rehabilitation.
2. If there are no guarantees of the third party regarding satisfaction of the property claims of creditors towards the insolvent debtor and covering of the court expenses, the court may by means of publication in the press of the announcement on the tender of legal entities and citizens who wish to participate in the sanation of the insolvent debtor. If within one month such persons do not appear or their conditions of the participation in the sanation are not agreed by the debtor, the bankruptcy case of the insolvent debtor shall be subject to consideration according to the procedure provided in the legislative acts on bankruptcy.
3. An insolvent debtor, the owner of the property of the debtor, or the creditors may submit to the court a petition to establish an external management of the property of the debtor. Reason For determinations of external governing property of debtor is presence of real possibility to restore solvency by realization of part of its property and realization of other actions.
The procedure of the external management of the property of the debtor is established by legislative acts.
Article 55. Consequences of instituting liquidation proceedings
1. From the moment of instituting liquidation proceedings:
1) the insolvent debtor shall be prohibited to alienate (except for the cases where the permission to sell is granted by a meeting of the creditors), to transfer properties and repay debts;
2) the terms of all the debt obligations of the insolvent debtor shall be deemed to have expired;
3) the accrual of fines and interest shall terminate on all types of debts of the insolvent debtor;
4) all legislative restrictions on levying a recovery on the property of the insolvent debtor shall be withdrawn;
5) disputes of a property nature with the participation of the insolvent debtor being considered in the court shall terminate if decisions made on them have not entered the legal force.
2. All the claims of a property nature from that moment are to be presented to the debtor only within the framework of the liquidation of proceedings.
Article 56. Release of an insolvent debtor from debt
1. After the selling of properties the insolvent debtor shall be recognized as free from any debts.
2. An insolvent debtor shall not be released from the obligations in the event of:
1) if he has concealed or transferred part of his property for the reason to hide to another person within a year before the beginning of the liquidation proceedings;
2) concealed or falsified required reporting information including accounting books, documents.
Article 57. The termination of legal entity activity of a bankrupt
1. The recognition by the court of a legal entity as insolvent (bankrupt) shall cause its liquidation.
2. The enterprise activity of a bankrupt is deemed terminated from the moment of the exclusion of it from the state register of legal entities.
1. General provisions
Article 58. The fundamental provisions concerning a business partnership
1. A business partnership shall be recognized to be a commercial organization with the charter fund divided into shares investments) of the founders (participants). Properties created at the expense of the investments of the founders (participants) and also produced and acquired by the business partnership in the course its activities belongs to it under the right of ownership. In the events which are provided by the present Code, a business partnership may be created by one person, who becomes its sole participant.
2. Business partnerships may be created in the form of a general partnership, kommandit, limited liability partnership, partnership with additional liability, joint stock company.
3. General partnership and general partnership participants in the kommandit partnership are to be only people. In the full partnership shall be not less than two participants.
4. The foundation documents of a business partnership are the foundation agreement and the charter. must contain a part from the information indicated in paragraphs 3 and 4 of Article 41 of the present Code. The foundation document of a business partnership, which is founded by one person (one participant), is the charter.
5. The foundation documents of a business partnership (charter and constituent agreement) are subject to a notarial certificate.
6. The foundation documents of a business partnership are to contain, aside from the information specified in points 3 and 4 of Article 41 of the present Code, terms on the amount by share for each of the participants; on the amount, composition, terms and order of the contribution by them to the contributions to the company statutory capital; on the liability of the participants for the breach of the duties on contributing the contributions to the company statutory capital, as well as other information, as provided by legislative acts.
7. All persons concerned have the right to get familiar with the business partnership charter.
8. A business partnership can be a founder other economic companies with the exceptions as provided by legislative acts.
9. Business partnerships, except a joint stock company, has the right not to issue shares.
Article 59. Contributions to the property of a business partnership. The share of participant in charter fund and assets of a business partnership
1. The contribution to the business partnership charter capital are to be money, securities, buildings belongings, property rights, including intellectual property, and any other property. The monetary evaluation of a contribution by a participant or a business partnership may not be produced only on the agreement among the participants (founders) of a business partnership and it shall be subject to verification by independent audit.
2. The shares of all participants in the business partnership are proportional to their contribution to the charter capital unless otherwise provided in the foundation documents. A business partnership participant shall has the right to pledge and sell its share in the partnership property unless otherwise is provided in legislative acts or the foundation documents.
3. The order and terms of making the contributions to the charter capital, as well as the responsibility for the performance of obligations on forming the charter capital are established by legislative acts.
Article 60. Business partnership management
1. The supreme authority of a business partnership is the general meeting (meeting of the representatives) of its participants.
2. In a business partnership shall be created an executive body (collective and (or) individual) , which implements the current management of its activity and is accountable to the general meeting of its participants. The individual management body may not be elected from among its participants. As collective bodies may be created the following:
1) the board (directorate),
2) the supervisory commission,
3) the audit commission,
4) the monitoring council,
5) any other bodies upon the decision of the general meeting (meeting of representatives) of the business partnership participants.
3. The authority of the bodies of business partnership management, the procedure of their selection (appointment), as well as the procedure for their decisions making, shall be defined in accordance with the present Code, legislative acts and the foundation documents.
Article 61. The rights and obligations of business partnership participants
1. The participants of a business partnership have the right:
1) to participate in the management of the affairs of the business partnership in the manner determined in the foundation documents;
2) to obtain the information on business partnership activity and to review its documents in the manner established by the foundation documents;
3) to participate in the distribution of profit. The terms of the foundation documents which provide the removal of one or several participants from the participation in the distribution of profit shall be invalid;
4) to obtain in the event of the liquidation of the business partnership, the part of its property which corresponds to their share in the property of the partnership and which remains after the settlement with the creditors, or its value.
5) to exit the business partnership, in accordance with the established procedure, with obtaining the value of the share in the property of the business entity in proportion to the contribution made, unless otherwise is provided in the foundation documents. The participants of the business partnership may have any other rights which are provided in the legislative acts and foundation documents.
2. The participants of a business partnership shall be obliged to as follows:
1) to keep the requirements of the foundation documents;
2) to make contributions in the order, amounts, ways and upon the terms, provided in the foundation documents;
3) not to divulge information, which the business partnership has declared a commercial secret.
The founders of the business partnership may bear any other responsibilities which are provided in the foundation documents.
Article 62. Business partnership transformation
1. Business partnerships of one type may be transformed into business partnerships of any other type upon the decision of a general meeting of the participants in the events and in the order established by legislative acts.
2. When transforming, a general or a kommandit partnership into a joint stock company, limited liability partnership, or additional liability partnership, each full partner that became a participant of the joint stock company, limited liability partnership, or additional liability partnership shall carry for two years subsidiary liability with all his assets on the obligations which were transferred to the joint stock company, limited liability partnership, or additional liability partnership, from the general or kommandit partnership. The alienation by the former full partner of the shares that belong to him shall not exempt him from such liability.
2. Full Partnership (General Partnership)
Article 63. The basic provisions on a general partnership
1. A general partnership shall be a partnership the participants whereof in the case of insufficiency of the property of the general partnership shall carry joint liability on its obligations with all of his property.
2. A citizen can be a participant of only one full partnership. acquired assets which exceed in its value the losses incurred by the partnership.
Article 64. Charter fund of a general partnership
1. The amount of the charter fund of a general partnership is determined by its founders, but it may not be less than the minimum amount established by legislative acts.
2. The reduction of the charter fund of a general partnership shall be permitted after the notification to all of its creditors. The latter shall have the right in that case to demand a premature termination or execution of the appropriate obligations and compensation of the losses to them.
Reduction of the charter fund in violation of the procedure established in this Article , shall be the foundation for liquidation of the general partnership in accordance with the decision of the court upon the application by interested persons.
Article 65. Managing the affairs of a general partnership
1. The general meeting of a general partnership shall be the supreme body of the general partnership. Resolution on the internal issues of a general partnership shall only be adopted by the unanimous consent of all of the participants. The foundation agreement of a partnership may provide the cases, where the decision is adopted by a majority of votes of the participants. Each participant of a general partnership shall have one vote, unless the foundation agreement provides any other procedure for determining the number of votes of its participants. The foundation agreement may provide that the number of votes which are available to the participants shall be determined commensurate to their share in the charter fund.
2. The management of a general partnership in consideration of the provisions of paragraph 1 of this Article, shall be carried out by the executive bodies of the general partnership. Types, procedure for forming the management bodies and their authority are defined by the foundation documents.
3. A participant of a general partnership shall not have the right to commit in his name, and his interests or in the interests of third parties without the consent of the other participants, the transactions which are identical to those which constitute the object of the activities of the partnership. In the case of the violation of this rule, the partnership has the right to demand from such participant, either compensation of the losses caused to the partnership, or transfer to the partnership of all the benefits obtained on such transactions of advantage.
4. The bodies of a general partnership, which are entrusted with the business management of the partnership, are obliged to present to all participants, upon their request, the complete information on their activities.
5. A participant who acts for the common interest without authorization, in the instances where his actions are not approved by all of the other participants, shall have the right to claim from the partnership compensation of his expenses, provided that he can prove that due to his efforts the partnership has saved money or accordingly has gained assets acquired assets, which exceed in value the cost to be incurred by the partnership as expenses.
Article 66. Transfer of a share (part of share) of a general partnership participant
1. A transfer by a participant of his share (part of share) to other full partnership participants or to third parties is possible only with the consent of all other participants.
2. When transferring a share (part of the share) to a third party, the whole collection of rights and obligations belonging to the participant shall simultaneously take place leave from the general partnership.
3. In the event of the death of a participant of a general partnership, the legal successor (heir) may with the consent of all other participants to enter the partnership.
4. The legal successor (heir) has responsibility for the debts of the participant before the general partnership, as well as on the debts of the partnership before third parties, which arose during the full period of the activity of the partnership.
5. Where the legal successor (heir) refuses to enter the general partnership or the partnership refuses to receive the legal successor (heir), he shall be paid the value of the share pertaining to him on the basis of the succession of share in the assets of the partnership, determined on the day of the death of the participant.
In these cases accordingly, the amount of partnership property specified in the foundation agreement (charter), shall be reduced upon the terms provided in the foundation agreements (charter), but not later than in three months.
Article 67. The departure of the participant from the general partnership
1. Participant of a general partnership may at any time depart from the partnership after notification thereof to the other participants not less than the term provided in the legislative acts or the foundation agreement.
2. If by the departure of a participant the general partnership still exists, the participant shall be paid the value of his share in the assets of the partnership in proportion to the contribution made in accordance with the balance, calculated on the day of departure.
At the request of the participant, and with the consent of the partnership, the contribution may be returned in full or partly in kind.
The participant who left shall also be paid the part of the profits, which has been received by the partnership in that year and which are due him. Properties transferred by the participant of the partnership only for its use shall be returned to him in kind without remuneration.
Article 68. Exclusion of a participant from a general partnership
The participants of a general partnership shall have the right to require in a judicial procedure, to exclude one of the participants of the partnership, upon a unanimous vote of the remaining participants and where there are serious reasons for that in particular there's a gross violation by him of his duties or his inability to maintain the affairs becomes established.
Article 69. Levying of liability upon the share of a participant in the general partnership
1. The levying of the liability upon the share of a participant of a general partnership on his personal debts is allowed only in the event where his other assets are not sufficient to cover the debt. The creditors of such participant shall have the right to demand from the general partnership to alienate the part of the property of the partnership in proportion of the share of the debtor in the charter fund for the purpose of imposing recovery from that property. The part of property of the partnership which is subject to alienation or its value shall be determined on the basis of the balance sheet calculated at the time of the presentation of the claim by the creditors in respects of the demand to alienate The part of property of the partnership which is subject to be separated or its value shall be determined on the basis of the balance which is compiled at the moment of the claim being made by the creditors with the requirement to separate such share such part.
2. The imposition of a recovery upon the share of a participant in the property of a general partnership shall terminate his participation in the partnership and it shall result in the consequences which provided in articles 17 and 71 of the present Code.
Article 70. The responsibility of the participants in respect of debts of the general partnership
1. If during the liquidation of a general partnership it happens that the available property is not sufficient to pay all its debts, the liability may be jointly carried out by its participants to cover the missing part with all their property which according to legislative acts can be levied with penalty.
A general partnership participant shall be responsible for partnership debts regardless of whether they appeared after or before his entering the partnership, if other is not provided by legislative acts.
2. The participant who has paid debts of the general partnership in the part exceeding his share in the partnership property shall have the right to appeal with the regressive requirement of the corresponding amount to other participants, who bear before him common liability in proportion to the amount of their shares in the partnership property.
3. The participant who has withdrawn from the general partnership on his own desire or has been expelled from the company by the court decision, as well as a legal successor (heir) of the deceased participant having refused from the offer to enter the company shall be responsible for company obligations appeared before the moment of their withdrawal during two years from the day of approving the report on partnership activities for the year, in which they have left the partnership.
4. The participant having withdrawn from the general partnership according to the procedure of the transfer of share to another participant or third party according to the procedure of levying a recovery on his share in the company property by the creditor (creditors), as well as the legal successor (heir) of the deceased participant who has been rejected by the rest participants from entering into the partnership shall not be responsible for partnership obligations.
5. After the general partnership stops to exist its participants shall bear responsibility for the partnership obligations which have emerged before the moment of the stopping during two years from the date the partnership stops to exist.
6. Agreements of participants changing the procedure of their liability on obligations of the general partnership provided by the present article shall be void.
Article 71. Liquidation of a general partnership
1. A general partnership in addition to the grounds indicated in Article 49 of the present Code shall be liquidated also in case when only one participant remains in the partnership, if during the period of six months he does not transform the partnership or accept new participants.
2. In events of output or death of anyone from full company participants, confessions one of them is unknown being absent, nonable or ограниченно able, or bankrupt or turning by the obligee of one of the recovery participants on the property, corresponding to its share in the statutory capital, company can continue its activity, if this is provided by constituent company documents or agreement of staying participants.
3. If one of the participants has leave from the company on bases, specified in the Article 2 of the present article, share of staying participants in the company statutory capital are enlarged pro rata their contributions, if other is not provided by constituent documents.
3. Kommandit (Limited) partnership
Article 72. The fundamental provisions concerning a kommandit partnership
1. Kommandit partnership shall be the partnership which includes besides one or more participants who bear additional liability respectively obligations of the partnership with all their property ( general partners) and also one or more participants whose liability is limited by the amount of the contribution made by them to the assets of the full partnership (investors) and who do not participate in the management of the partnership's business activities.
2. The legal position of general partners who participate in a kommandit partnership and the liability of the obligations of the partnership shall be determined by the rules concerning the participants of the general partnerships.
3. A person may be a general partner only in one kommandit partnership, a full partner in a kommandit partnership may not be a participant of a general partnership.
4. The rules of the present Code concerning general partnership shall apply to kommandit partnerships so long as this does not contradict the provisions of the present Code concerning limited partnerships.
5. A kommandit partnership shall be created and each shall operate on the basis of the foundation agreement. The foundation agreement shall be signed by all the general partners. If where in a kommandit partnership there's only one general partner the partnership shall operate on the basis of the charter.
Article 73. The investor in a kommandit partnership
1. An investor of a kommandit partnership shall be obliged to make his initial contribution and additional contributions (investments) in the amount , method and order provided in the foundation documents.
2. An investor of a kommandit partnership has the right:
1) to obtain part of profits of the partnership which is due to his share in the charter fund in accordance with the procedure provided in the foundation documents;
2) to review the annual reports and balance sheets of the partnership and also to require the opportunity to check or audit the accuracy of their calculation;
3) to transfer his share in the charter fund or part thereof to any other investor or a third person the transfer b- the investor of his share to any other person shall terminate his participation in the partnership;
4) upon the expiration of a fiscal year, to exit the partnership and to receive his investment in accordance with the procedure provided in the foundation documents. The foundation documents of a kommandit partnership may provide any other rights of the investor The refusal of the rights provided by the present Code and other legislative acts for depositors of kommandit, or their restrictions, including on the agreement of depositors and full comrades, is void.
3. Where the investor undertakes a transaction in the interest of a kommandit partnership without due authorization, then in the case of approving his actions by the partnership he shall be responsible with respect to the transaction to the creditors in the full volume where the approval is not obtained the investor shall be responsible to third person independently with all his property to which in accordance with the legislation a penalty may be imposed.
Article 74. Charter fund of a kommandit partnership
1. The charter fund of a kommandit partnership shall be made up of the investments of its participants. In the course of business activities the charter fund may be altered. The charter fund shall determine the share of the participants of a kommandit partnership in its profits irrespective to its profits and it shall be the target of imposing of penalty in accordance with the claims of the creditors in the case that the kommandit partnership does not have free monetary resources. The charter- fund less the contributions of investors shall determine the share of general partners in the partnership in the property of the kommandit partnership.
2. The amount of the charter fund shall be determined by the general partners of a kommandit partnership. The total amount of shares of the investors may constitute not more than (50%) fifty per cent of the charter of a kommandit partnership.
3. The charter fund of a kommandit partnership may be paid by its participants by fifty per cent of the applied of the one declared in the foundation documents.
4. The reduction of the charter fund of a kommandit partnership shall be allowed after notification to all of its creditors. The latter shall have the right in that case to require a premature termination or execution of the relevant obligations and compensation to them of their losses. the reduction of a charter fund in violation of the procedure established in this Article shall be the reason for the liquidation of a kommandit partnership upon the decision of the court in accordance with the applications of the interested parties.
Article 75. Management of a kommandit partnership
Managing the affairs of a kommandit partnership shall be carried out by general partners a procedure for managing and maintaining affairs of a general partnership by its general partners shall be established by themselves in accordance with the rules concerning -general partnership. The investors shall not have the right to participate In managing the affairs of the kommandit partnership and also to act in it on its behalf otherwise than in accordance with the power of attorney. The investors of a kommandit partnership shall not have the right to challenge the actions of general partners in respect of managing the affairs of the partnership.
Article 76. Termination of a kommandit partnership
1. A kommandit partnership shall be terminated when all the investors who are participating it depart. The general partner shall have the right instead of liquidation to transform the kommandit partnership into a general partnership. A kommandit partnership shall be liquidated also on the grounds which are sufficient for the liquidation of a general partnership.
2. When liquidating a kommandit partnership the investors shall have the priority rise as compared to general partners to receive to obtain the investments from the assets of the partnership ,which remain after the satisfaction of the claims of its creditors. The assets which remain after that of the kommandit partnership shall be distributed between full partners and investors in proportion to their investments to the assets of the partnership unless other procedure is established n the foundation documents.
4. Limited Liability Partnership
Article 77. Main provisions concerning limited liability partnership
1. The partnership with limited liability shall be recognized to be a partnership established by one or several persons the charter fund whereof is divided into shares of the size which is provided in the foundation documents the participants of a limited liability partnership shall not be responsible upon its obligations and they shall bear the risk of losses associated, with the activities of the partnership within the limits of the contributions made by themselves. The participants of a limited liability partnership who did not fully make the contribution shall bear joint responsibility respectively with obligations within the amount of unpaid but of the investment of each of the participants.
2. The number of participants of the limited liability partnership must not exceed thirty. In any other cases it shall be subject to transformation to a joint stock company within one year and upon the expiration of that term liquidation in traditional procedure where the number of its participants is not reduced down to thirty. A limited liability partnership may not have as a sole participant another business partnership which consists of one person.
3. Upon the claim by any of its participants there must be a conducted audit of the activities of the limited liability partnership.
The public reports of the limited liability partnership shall not be required except for the cases provided in the legislation or the foundation documents.
4. The limited liability partnership -nay be voluntarily reorganized or liquidated upon unanimous decision of its participants, Any other rounds f-or reorganization or liquidation of a limited liability partnership shall be determined by the present Code and legislative acts. A limited liability partnership shall have the right to be transformed only into a joint stock company.
5. A participant of a limited liability partnership shall have the right at any time to exit the partnership to leave the partnership irrespective of the consent of its other participants. In that respect he must be paid the value of the assets proportional to his share in the charter fund of the partnership in accordance with the procedure the methods and within the deadlines provided in the legislative acts and the foundation documents.
6. The legal position of the limited liability partnership the rights and obligations of its members shall be determined by the present Code and the legislative acts.
Article 78. The charter fund of a limited liability partnership
1. The charter fund of' the limited liability partnership shall be made up of the contributions of its founders. In the course of the business activities the charter fund may be altered. The charter fund shall determine the share of participants of the limited liability partnership in its assets and it shall be the target for the imposition and it shall be the object of penalizing in accord upon the claims of the creditors in the case that the partnership does not have free monetary resources.
2. The amount of the charter fund shall be determined by the foundation par-ties of the limited liability partnership- The minimum amount of a charter fund of a limited liability partnership shall be determined in the legislative acts.
3. The charter fund of the limited liability partnership must be paid up by its participants by fifty per cent of that one declared in the foundation documents at the moment of its registration. The unpaid part of the charter fund declared in the foundation documents must be paid within the year from the moment of the registration of the limited liability partnership.
4. The reduction of the charter fund of a limited liability partnership shall be permitted after notifying all of its creditors. The latter shall have the right in that case to require a premature-, termination or execution of the relevant obligations and the compensation to them of the losses. The reduction of the charter fund in violation of the established procedure established in this Article shall be a basis for the liquidation of the limited liability partnership in accordance with the decision of the court upon the applications of the interested parties.
Article 79. Management of a limited liability partnership
1. Competency of management bodies by the company, as well as order of acceptance by them deciding and appearances on behalf of the company are define in the correspondence to the present Code and company charter.
2. To the exclusive competency of common meeting of company participants with limited liability pertain:
1) changing a company charter, including changing an amount of its statutory capital;
2) formation and review of executive company organs;
3) approving the annual reports and accounting company balances and sharing its profit and loss;
4) decision on the reorganization or company liquidations;
5) election of review commission (auditor) companies. The Company Charter to exclusive competencies of common meeting can be also referred decision of other questions.
3. The Questions refer to exclusive competencies of common meeting of company participants, are to be not transferred by it on the decision of executive company organ.
Article 80. The transfer of a share in the charter fund of a limited liability partnership to another person
1. A participant of a limited liability partnership shall have the right to sell or in any other way to sign his share in the charter fund of a partnership or its part to one or several participants of that partnership.
2. The selling by the participant of a limited liability partnership of his share ( part thereof) to third parties shall be permitted unless otherwise provided in the charter of the partnership. The participants of the partnership with limited liability partnership shall enjoy the priority right to purchase a participant's share ( fund thereof ) in proportion to their amounts of their shares unless the charter of the partnership or the agreements of its participants provides another procedure for the exercise of that right- In the case where the participants of a limited liability partnership do not exercise their priority right the share of participants may be sold to any third party.
3. Where in accordance with the charter of a partnership with limited liability partnership the selling of a share of the, participants (a part thereof) third parties is impossible and the other participants of the partnership refused to purchase, the partnership shall be obliged to pay to the participant its actual value for issue to him in kind the assets which correspond to that value.
4. The share of a participant of' a limited liability partnership may be sold prior to its payment only in the part which had been paid out already.
5. In the case where a share of- a participant (a part thereof) is acquired by, the partnership itself Limited liability partnership itself it shall be obliged to sell It to other participants or third persons within the deadlines and in accordance with the procedure provided In the legislative acts and foundation documents of the partnership or to reduce its charter fund during that period the distribution of profits and also forcing in the supreme governing body shall be carried out without taking into account the share acquired by the limited liability partnership.
6. The share in the charter fund of a limited liability partnership shall be transferred to legatees of citizens and to the, legal successes of legal entities which are participants of a partnership unless the foundation documents of the partnership provides that such transfer is permitted only with tile consent of the other participants of the partnership. The refusal to accept the transfer of the share shall result in the obligation of the partnership to pay to the legatees ( legal successors of the participant ) its actual value or to issue to them in kind the assets to the same value in accordance with the procedure and on the conditions provided in the legislative acts and in the foundation documents of the partnership.
Article 81. The additional contributions of the participants of a limited liability partnership
Upon the decision of the supreme body of the limited liability partnership the contribution by the participants of additional contributions may be contemplated. The resolution concerning that shall be adopted by the qualified majority of two-thirds of all the participants of the limited liability partnership.
Article 82. The exclusion of a participant from the limited liability partnership
The exclusion of a participant from a limited liability partnership shall be carried out in accordance with the judicial procedure on the basis of the applications of the body of a partnership.
Article 83. A claim against the share of a participant in a limited liability partnership
Claims against the share of a participant in a limited liability Partnership in respect of his own debts shall not be permitted. In the case where the participants assets are not sufficient to cover his personal debts, the Creditors may require in accordance with the established procedure to appropriate the share of the debtor participant.
5. The Partnership with the Additional Liability
Article 84. Fundamental provisions concerning a partnership with additional liability
1. The partnership with additional liability shall be the partnership the participants where of shall be liable in respect of its obligations with the in vestments to the charter fund and in the case those are insufficient additionally with the assets that belong to them in the amount which is a multiple of the contributions made by themselves.
2. The maximum amount of the liability of the participants shall be provided in the foundation. In the case of insolvency (bankruptcy) one of the participants is a liability in respect of the obligation of the partnership shall be spread amongst other participants in proportion to their contributions. Unless a different procedure of the distribution of the responsibility is provided in foundation documents.
3. In respect of an additional liability partnership the rules of the present Code shall be applied concerning (the partnership)) limited liability partnership. Unless otherwise is not provided in this article.
Article 85. The concept of a joint stock company
1. A Joint stock company shall be a partnership charter fund where of is divided into a definite number- of shares of equal nominal value. The participants of a Joint stock company (shareholders) shall not bear upon its obligations and they shall bear the risk of losses associated with the activities of company then the limits of the shares that belong to them.
2. A Joint Stock Company shall posses the assets which are separate from the assets of the participants, It shall bear the responsibility in respect of its obligations within the limits of its assets and it shall not bear any liability in respect of the obligations of its participants. The Founder shall bear the solitary liability in respect of the obligations of the Joint stock company in the case of incomplete payment by them of the contributions the charter funds of the company within the limits of the unpaid part of the contribution.
3. The Joint stock company may be created by one person and it may consist of one person in the case the acquisition by one shareholder of all the shares of the company.
4. The legal position of a Joint stock company, the rights and obligations of the shareholders shall be determined in accordance with the present Code, the legislative acts. The special considerations in respect of the legal position of the share, of the Joint stock companies which are created by their privatizing state enterprises shall be determined in the legislation.
Article 86. Open type and closed type joint stock companies
1. A Joint stock companies, their participants whereof may sell the shares which belong to them without the consent of any other shareholders. Shall be Joint stock company of the Opened Type.
The Opened Type Joint stock company shall have the right to conduct any public subscriptions to the shares issued by it and the free trade on the conditions which are established in the legislation.
2. A Joint stock company shall be obliged annually publish for public information, the annual report.. the balance sheet, the profit and loss account and the losses.
3. The Joint stock company, the shares whereof are distributes only amongst its founders or amongst another previously determined circle of persons shall be a closed type of joint stock company. The Closed Type joint stock company shall not have the right to conduct any public subscriptions to the shares issued by it or in any other way to offer them, to sell to the unlimited number of persons.
4. A shareholder of a closed type joint stock company who desires to sell his shares shall be obliged to offer to buy them other participants of the company or to the company itself Where the participants of the company have refuse to acquire the share the shareholder shall have the right with the consent of the company (or where there is no response within I month from the date of the request) sell the shares to the third parties.
5. The foundation documents may provide the possibility of excluding from a closed-type joint stock company, upon the court decision, of a participant who materially violates the interests of the company by his actions. The shares of an excluded participant shall be compulsorily bought out by the company.
6. In the cases which are provided in the legislative acts the closed type joint stock company may be compelled to publish for the public information, the annual report. the balance sheet, the profit and loss account.
Article 87. Foundation documents of a joint stock company
1. The Foundation documents of a joint stock company are the foundation agreement and the charter.
2. The foundation agreement of a joint stock company shall be concluded by the founders. The foundation agreement of a joint stock company apart from the information provided in paragraph 3 of Article 41 and paragraph 4 of Article 58 must contain the information concerning of the types of the shares issued and the procedure of their replacement.
3. The charter of a joint stock company shall be approved by the foundation, meeting of the founders. The charter of a joint stock company, apart from the information provided in paragraph 4 of Article 4 1 and paragraph 4 of Article 58 of the present Code must contain the following provisions:
1) the type of the company (opened or closed type);
2) full and any other official names, the legal address and the term of the operation of the company, if the term is provided when establishing the joint stock company;
3) information concerning the categories or classes of shares of the company, the nominal value, number and concerning the rights of its owners;
4) the procedure for distribution of profits and compensation of losses;
5) the procedure for the formation of the funds of the company.
4. Apart from the foundation agreement of the charter - the founder of the joint stock company shall have the right to adopt any other documents which regulate the activities of the company. The compliance with the requirements of these documents shall be compulsory for the executive body of the joint stock company, executives and the participants of the company.
Article 88. Charter fund of a joint stock company
1. The charter fund of a Joint stock company shall be equal to the total amount of the nominal value of the shares issued but not less than the minimum amount which is provided by the legislative acts.
2. The open subscription to the shares shall not be permitted until the entire payment of the charter fund. When establishing the joint stock company all its shares must be distributed amongst the founders. It shall not be permissible to release a shareholder from the obligation to pay for his shares, including by the way of in payment of the claims to the joint stock company.
Article 89. Increase in the charter fund
1. A joint stock company shall have the right upon the resolution of the general meeting of the shareholders to increase the charter fund by way of increasing the nominal value of shares of by issuing additional shares. The increase of the charter fund of a joint stock company shall be permissible after its full payment. The increase of the charter fund by means of additional issue to cover losses incurred by the losses of the joint stock companies shall not be permissible.
2. Issuing additional shares shall be carried out on the basis of additional issue. An additional issue shall take place in the case of adopting the appropriate resolution by the General meeting of the participants of a joint stock company and obtaining the prospects of the issue from the authorized bodies in accordance with the procedure established by the legislation.
3. The charter of a joint stock company may provide the preemptive right of the shareholders who has voting hares to buy the shares additionally issued by that joint stock company.
Article 90. Reduction of the charter fund
A joint stock company shall have the right upon on the decision of the General meeting of the shareholders to reduce but not less than the minimal amount which is provided in the legislation the charter fund by way of reducing the nominal value of the shares or by way of purchasing part of shares for the purposes of reducing the general number The reduction of a charter- fund of a joint stock company shall be permitted after notifying all its creditor-, in accordance with the procedure provided in the legislative acts in that respect the creditors of a joint stock company shall have the right to require a premature termination or execution of appropriate obligations of the company and compensation of their losses. The reduction of the charter fund way of buying or redeeming part of the shares shall be permissible where such possibility is stipulating in the charter fund of the joint stock company.
Article 91. Issue and distribution of securities and payment of dividend
1. The founders in any cases must be the holders of the shares to the amount of not less than 25% of the charter fund. The share of the preference shares in the total volume of the charter fund must not exceed 25%. The legislation or foundation documents may provide restrictions in respects of the number total nominal value of the shares of the maximum number of votes that belong to one shareholder.
2. The joint stock company shall have the right to issue the benches in the amount which does not exceed the amount of the charter fund after its full payment and not earlier than the third year of its existence under the condition that by that time the annual balance sheets shall be dully approved.
3. A joint stock company shall not have the right to (declare) to announce and pay dividend as follows:
1) prior to the full payment of the total (charter fund) charter capital;
2) where the amount of the charter fund is reduced as a result of the payment of dividend.
Article 92. Joint stock company management
1. The Supreme body of managing a joint stock company is a general meeting of its shareholders. The adoption of the following decisions shall be referred to the exclusive authority of the general meeting of the shareholder:
1) on changing the charter;
2) concerning the alteration (increase are decrease or reduction) of the amount of the charter fund of a joint stock company;
3) concerning the consolidation and splits of the shares issued previously additional issues of shares;
4) concerning the procedure for issuing bonds;
5) on the election of the executive bodies of the company's members of the review commission and (or auditors of the company) and also concerning the preliminary termination of powers;
concerning the approval of the annual results of the activities of the company, reports of the executive bodies of the company and conclusions of the ordered commission, the procedure for distribution of profits and covering of losses;
concerning the adoption of the internal regulations for the company amendments and additions that concerning the secession of termination of the company including by way of merger, adjoining, spitting separation or changes in the organizational and legal forms, appointments of the liquidation commission, (appointment) the approval of the liquidation balance. Any other issues concerning the activity of the company may be referred to the authority of the general meeting of the shareholders by the charter of the company.
2. The resolution of the issues which are referred by the present Code or the foundation documents of a joint stock company to the exclusive authority of the General meeting of the shareholders may not be delegated to the executive bodies of the company.
3. In the joint stock company there may b created the supervisory council both from the number of shareholders including the founders and from any other (invited) hired specialists, i.e., experts. The supervisory council shall exercise control of the activities of the executive bodies of the joint stock company. The members of the supervisory council shall not the right to act (in the name of) on behalf of the joint stock company. In the case of creating a supervisory council by the charts of the company there must be provided an exclusive authority. The issues-which are referred to the charts to the exclusive authority of the supervisory council may not be transferred by to the resolution of the executive body of the joint stock company.
4. The executive body of a joint stock company may be a collective body (both director it) or (and) single one (director, general director, president). It shall carry out the current management of the activities the joint stock company and it shall report to the executive council and a General meeting of the shareholders the authority of the executive body of a joint stock company shall include the resolution of all the issues which do not constitute the exclusive authority of any other bodies of managing the company which is established in the legislation) which is determined in the legislation or by the foundation documents.
5. The authority of the bodies, of the governing bodies of a joint stock company and also the procedure for adopting by them of the resolutions and acting on behalf of the company shall be determined in accordance with the present Code by the legislation and the foundation documents.
6. A joint stock company may for auditing and confirming the accuracy of financial reports in higher professional auditor which is not tied by property increased with the company or its participants (independent audit). And audit of a joint stock company must be carried out at any time in accordance with the requirements of shareholders whose total aggregate share in the charter fund constitutes ten and more %. The procedure for conducting audits of activities of a joint stock company shall be determined in the legislation and the foundation documents of the company.
Article 93. Reorganization and liquidation of a joint stock company
1. A joint stock company may be voluntary reorganized or liquidated upon the decision of the shareholders meeting. Any other rounds and the procedure for reorganization and liquidation of a joint stock company shall be determined in the present Code and other legislative acts.
2. A joint stock company shall have the right to be transformed only into the limited liability partnership.
7. Subsidiary and Other Related Business Partnerships.
Article 94. Subsidiary business partnership
1. A business partnership shall be recognized as subsidiary where the other (the main business partnership) by virtue of the predominant participation in its charter fund or in accordance with the agreement concluded between them or in any other way has the capacity to determine the decisions which are adopted by such partnership.
2. The subsidiary business partnership shall not be a reliable for the debts of its main business partnership. The main business partnership which in accordance with the agreement with the subsidiary business partnership has the right to give to the latter the indications which are compulsory for it shall be subsidiarily liable with the subsidiary business partnership in respect of the transactions concluded by the latter to execute such indications. In the case of insolvency (bankruptcy) over subsidiary business partnership the cause of the guilt of the main business partnership the latter shall be the subsidiary responsibility in respect of its debts.
3. The participants (shareholder) of a subsidiary business partnership shall have the right to require the compensation by the main business partnership of the losses which are inflicted (by its) through its faults to the subsidiary business partnership unless otherwise is provided in the legislative acts.
4. The special considerations concerning the position of the subsidiary business partnership which are not provided in this Article shall be determined in the legislative acts concerning business partnerships and concerning. the restriction of monopolistic activities.
Article 95. Related joint stock company
1. A joint stock company shall be recognized as related where the other (participating) or dominating legal entity as more than 20% of its voting shares.
2. The (predomination) predominating (participating) legal entity must immediately publish the information concerning the acquisition by it of the appropriate amount of shares of the related joint stock company in accordance with the procedure provided in the legislative acts.
3. The mutual participation of joint stock company in the charter funds of each other may not exceed 25% of each in the charter fund unless otherwise is provided in the legislative acts. The joint stock company which mutually participate in the charter fund of each other may not use more than 25% of the votes at are the General meeting of the shareholders or the other company.
4. The special considerations in respect of the position of related and mutually participating in the charter funds of each other joint stock companies which are not provided in this Article shall be determined in the legislative acts concerning the joint stock companies and concerning their restrictions to the monopolist activities free.
Article 96. General provisions on productive cooperatives
1. A voluntary association of citizens on the basis of the membership for joint entrepreneurial activities which is based on personal labor participation and association by the members of their property contributions (shares) shall be recognized as productive cooperatives.
2. Members of a cooperative must be not less than 2.
3. Members of a productive cooperative shall bear in respect of the obligations of the cooperative an additional (subsidiary) liability in the amounts in accordance with the procedure provided by the law concerning productive cooperatives.
4. The legal position of the productive cooperative and its members shall be determined in accordance with the present Code and legislative acts.
Article 97. Charter of a productive cooperative
The charter of a productive cooperative must contain apart from the information indicated in paragraph 4 of Article 41 of the present Code the conditions concerning the amounts of shares of the cooperatives members concerning the composition on the procedure for contributing shares by the members of the productive cooperative and their liability for the violation of the obligations in respect of marking the contribution of the share, concerning the nature and the procedure of the labor participation of its members in the activities of the cooperative and their responsibility for violating the obligations in respect of the personal labor participation concerning the procedure for the distribution of profits and lasses of the cooperative, concerning the composition and the authority of the governing body of a cooperative and the procedure for the adoption by them of the decisions including amongst those concerning the issues the resolution in respect whereof are to be adopted unanimously or by a qualified majority of votes.
Article 98. Property of a productive cooperative
1. Assets which are in the ownership of a productive cooperative shall be divided into shares of its members according to the charter of the cooperative. (A share shall be) share of the member of a productive cooperative in the assets of the cooperative.
2. The profits of cooperative shall be spread amongst its members in accordance with its labor participation unless another procedure provided in the charter of the Cooperative.
3. In accordance with the same procedure the assets shall be distributed which remain after the liquidation of the cooperatives and satisfaction of the claims of its creditors.
Article 99. Management of productive cooperatives
1. The Supreme body of managing a productive cooperative shall be General meeting of its members. In the productive cooperative there may be created a supervisory council which exercises the control activities of the executive bodies of the cooperative. The members of the supervisory council shall not have the right to act on behalf of a productive cooperative. Executive bodies off the cooperative shall be the board and (or) its chairman. They shall carry out the current management of the activities of the cooperative and they shall be accountable to the supervisory council and the general meeting of the members of the cooperative.
Supervisory council and the board of a productive cooperative may be only the cooperative's members. A member of a cooperative may not be at same time the member of the supervisory council and the member of the board.
2. The authority of the bodies of the governing bodies of the productive cooperatives and a procedure concerning the adoption of decisions by the and acting on behalf of cooperative shall be determined in the legislative acts and the foundation documents.
3. The following shall be referred to the executive authority of the General meeting of the members of a productive cooperative:
1) changing the charter of the cooperative;
2) formation of the executive and audit bodies and supervisory council and the removal of the members;
3) acceptance and exclusion of the members of the cooperative;
4) the approval of the annual accounts and accounting balance sheets of the cooperative and distribution of its profits and losses;
5) the decision concerning the reorganization or liquidation of a cooperative.
The legislative acts and the foundation documents may refer to the exclusive authority of the General meeting also any other issues. The issues which are referred to the exclusive authority of the General meeting or the supervisory council of a cooperative may not be transferred by them for, may not be delegated by them for the resolution of the executive body of the cooperative.
4. The member of a cooperative shall have one vote when a decision is adopted by the General meeting.
Article 100. The cessation of a membership in a productive cooperative
1. A member of a productive cooperative shall have the discretionary right to withdraw from the cooperative. In that case he must be paid or issued his share and also other benefits must be made which are provided in the charter.
The issue of the share or any other assets to the cooperative member who is leaving the cooperative shall be carried out upon the expiring of the financial year and the approving of the counting balance sheet of the cooperative.
2. A member of a productive cooperative may be excluded from the cooperative upon the decisions of the General meeting in the case of a failure to execute or improper execution of the duties which are delegated to in by the charter of the cooperative and also in any other cases which are provided in the legislative acts and the foundation documents. The exclusion from membership of a productive cooperative may be excluded from it upon the decision of the General meeting in relation to the membership in a similar cooperative.
A member of a productive cooperative who is excluded from it shall have the right to get the share and any other benefits which are provided in the charter of the cooperative in compliance with the paragraph 1 of this Article.
3. A member of a productive cooperative shall have the right to transfer his share or its part to any other cooperative member unless otherwise is provided in the legislative acts and the foundation documents. The transfer of a share (part thereof) to a citizen who is not a member of a productive cooperative shall only be permissible with the consent of the cooperative. In that case any other member of the cooperative shall exercise the preemption right in the purchase of such a share (its part).
4. In the case of a demise of a member of a productive cooperative its heir may be adopted as member of the cooperative unless other wise is provided in the charter of the cooperative otherwise the cooperative shall pay to the inheritor the value of the share of the demised cooperative member.
5. The claims against the share of a productive cooperative member in respect of his personal debts shall be permitted only in the case of the shortage of his other assets for covering such debt in accordance with the procedure provided in the legislative acts and the foundation documents of the cooperative.
Article 101. Reorganization and liquidation of a productive cooperative
1. A productive cooperative may be voluntary reorganized or liquidated upon the resolution of the General meeting of its member.
Any other grounds and the procedure for reorganization liquidation of a productive cooperative shall be determined in the present Code and other legislative acts.
2. A productive cooperative upon the unanimous decision of its members may be transformed into a business partnership or a joint stock company.
Article 102. Fundamental provisions concerning the state enterprise
1. State enterprises shall include the enterprises:
1) based on the right of business authority;
2) based on the right of operative administration (state owned enterprise).
2. Property of the state enterprise shall be indivisible and cannot be distributed according to contributions (shares) neither amongst enterprise employees.
3. The firm name of state enterprises must contain an indication to the name of the property owner.
4. A state enterprise shall be formed according to the decision of the authorized state body.
5. The body of a state enterprise shall be its leader who is appointed by the authorized state body and accountable to it.
6. Liquidation and reorganization of a state enterprise shall be carried out according to the decision of its founder.
7. Legal status of a state enterprise shall be determined by the present Code and other legislative acts.
Article 103. Enterprise based on the right of business authority (state owned enterprise)
The enterprise which is based on the right to business authority (the state owned enterprise) shall be created upon the resolution of the authorized state body. The legal position of the state enterprise shall be determined by the legislation concerning the enterprise.
Article 104. Public enterprise
The enterprise which is imparted by the state with the assets on the right of the operational administration shall be recognized as public enterprise. The Republic of Kazakstan shall be a subsidiary responsibility in respect of the obligations of public enterprises where their assets are insufficient.
Article 105. Institution
1. An organization which is created and financed the owner for carrying out administrative, social, cultural or any other functions of non-profit nature shall be recognized as an institution. The right of institutions which are affixed to them or the properties which are affixed to them shall be determined in accordance with articles 202 and 208 of the present Code.
2. The special considerations of the legal position of certain type of state owned and other institutions shall bb determined in the legislation.
Article 106. Public association
1. A public association shall be recognized as a public organization which emerged as a result of a association of citizens for the purpose of achieving the common interests. The participants (members) of public association shall not retain the rights to the assets which are transferred to them by those associations including the membership fees. They shall not be liable in accordance with the obligations of the public associations in which participate as their members and the indicating associations shall not be liable for the obligations of their membership. The composition of a public association in the cases provided by its charter may include collective members.
2. A public association shall operate on the basis of a charter.
3. The property of a public association shall be items which are necessary for the material for the financial supplies provision for the activities provided in its charter (statute) and also enterprises which are created the expense of its resources. The monetary resources of a public association shall be formed from the admission and membership fees, where the payment is provided in the charter, voluntary contributions and donations, receipts from producing lectures, exhibitions, sport and any other events in accordance with the charter, income from productive any other business activities, other receipts which are not prohibited by law.
4. Public association may on the voluntary principals associate into unions or public associations.
5. The income from business activities or public association may not be distributed amongst its members (participants) of that association! and it shall be used for the implementation of the charter objectives.
6. The assets of a public association which is liquidated upon the resolution of the convention (conference) or the General meeting shall be used on the purposes which are provided in this charter.
7. The legal position of a public association shall be determined by the legislative act in accordance with the present Code.
Article 107. Public foundation
1. A public foundation shall be recognized to be a non-commercial organization which does not have any membership, which is founded by the citizens or legal entities on the base of the voluntary property contributions and which pursues social, charity, cultural, educational and any other publicly useful purposes.
2. A public foundation shall be a legal entity and in the Civil rights turnover it shall be presented by the bodies of the foundation, it shall have on independent balance and the settlement account.
3.The assets which transfer to the public foundation by its founders shall of a foundation shall not retain property rights in respect of the assets of the public foundation.
4. The financial source of a public foundation shall be the monetary resources of the founders sponsorship, voluntary, charity donations and any other legal receipts.
5. The procedure for the administration of a public foundation, the procedure for the formation of its body 'shall be determined by its charter which is approved by the founder. The charter of public foundation apart from the information contained in paragraph 4 of Article 41 of the present Code must contain the indications concerning the procedure for the appointment of the officials of the fund and the release, the destiny of the assets of the foundation in the case of its liquidation.
6. The foundation shall be obliged annually to publish the report concerning the use of its assets.
7. Upon the resolution of the court a public foundation may be liquidated in the following cases:
1) where the assets of the foundation are not sufficient for the exercise, for the achievements of its purposes and the probability of obtaining the required assets is not realistic;
2) where purposes of a foundation may not be reached and the necessary changes in the goals, in aim, in the purposes of the foundation may not be made;
3) in the case of the foundations evasion from, in its activities from the purposes which are provided in its charter;
4) in any other cases which are provided in the legislative acts or the foundation documents.
8. The assets which remain after the liquidation of a public association shall be used for the purposes provided in its charter.
Article 108. Consumer cooperative
1. A consumer cooperative shall be recognized to be voluntary association of citizens on the basis of the membership for the satisfaction of the social and economic requirements of their member and any other citizens by way of uniting on a shared property basis of its participants.
2. Members of a consumer cooperatives shall be obliged within 3 months after the approval of the annual balance to cover the losses which form by way of additional contributions in the case of a failure to fulfill those obligations the cooperative may be liquidated in a judicial procedure upon the requirements of the creditors. Members of a consumer cooperative shall bear a solitary subsidiary liability in respect of its obligations within the limits of the unpaid amount the additional contribution by the members of the cooperative.
3. The charter of the consumer cooperative must contain outside of the apart from the information indicated in the paragraph 4 of Article 41 of the present Code. The conditions concerning the size of the shares of the members of the procedure for the contribution or shares by the members of the cooperatives and their responsibility for the violation the legislation obligation to contribute the share concerning the composition and the authority of the governing bodies the cooperative and the procedure for adopting by it of the resolution including the issues the resolution whereof is to be adopted unanimous by qualified majority of votes, concerning the procedure of reimbursement to the members of the cooperative of the losses incurred by them.
4. Income received by consumer cooperative may not be distributed amongst its members.
5. In the case of tile liquidation of a consumer cooperative or in the case of its leaving by a member of a cooperative he shall have the right to appropriate his share in the assets of the consumer cooperative in proportion to his share.
6. The legal position of the consumer cooperative and also the rights and obligations of its members shall be determined in accordance with the present Code and the legislative acts.
Article 109. Religious association
1. Religious association shall be a voluntary association of citizens united according to the procedure established by legislative acts on the basis of common interests for the purpose of satisfaction of spiritual needs.
2. Religious departments (centers) in accordance with their registered charters (provisions) shall have the right to found religious educational institutions, mosques, monasteries and other religious associations operating on the basis of their own charters (provisions).
3. Religious associations of the Republic of Kazakstan having management centers outside of the territory of the Republic can follow charters (provisions) of the centers, if this does not violate legislation of the Republic of Kazakstan and charters (provisions) of religious associations of the Republic of Kazakstan registered by the Ministry of Justice of the Republic of Kazakstan.
4. Appointment by foreign religious centers of leaders of religious associations acting on the territory of the Republic of Kazakstan shall be realized upon the agreement with the corresponding authorities of the Republic of Kazakstan.
5. Religious associations can form societies, brotherhoods, unions and other associations of people created for charities, studying and spreading of religious literature and other cultural-enlightenment activities. They can have their own charters (provisions) registered according to the procedure provided for public associations.
6. Foundation of spiritual, educational, religious associations and institutions, missionary activity of foreign citizens and persons without a citizenship shall be allowed only after their accreditation by local authorities and under the condition of its correspondence to the legislation of the Republic of Kazakstan.
7. Religious associations have the right to form enterprises for providing religious, social and charitable activities.
8. Religious associations are to get financial and other material help from foreign religious centers, international missionary and charitable societies and fund, if its use does not disagree with the legislation of the Republic of Kazakstan.
9. Religious associations shall have the right to own the assets which are acquired or created or manufactured by it at the expense of their own resources donated by the citizens organizations or transferred by the State and acquired on any other grounds which do not contradict the legislative acts.
10. The participants (members) of a religious association shall not retain the rights in respect of the assets which are transferred by them to that organization including membership fee. They shall not be liable in respect of the obligations of the religious association and the religious associations shall not be liable in respect of the obligations of its members.
11. The special considerations of the legal stators of the religious association shall be determined in accordance with the present Code and the legislative acts.
Article 110. A non-commercial association
1. A commercial organization for the purpose of coordinating the entrepreneurial activities and also providing the protection of common property interests may by agreement between themselves create associations in the form of amalgamations of association (unions) which are non-commercial organizations which shall be noncommercial organizations which shall be non-commercial organizations.
2. Public associations and any other non-commercial organizations including the institutions may voluntary uniting to associations (unions) of those organizations. In association (union) of non-profit organizations shall be a non-profit organization.
3. Members of the associations shall preserve their independence and the rights of legal entities.
4. An association shall not be liable on the obligations of its members. Members of the association shall bear subsidiary responsibility in respect of its obligations in the amount and in accordance with the procedure provided in the foundation documents of the association.
5. The participation of the State and administrative and territorial units in relations which are regulated by the civil legislation.
Paragraph 3. Participation of the State and
Administrative and Territorial Units in the relations
which are regulated by the Civil Legislation
Article 111. The participation of the Republic of Kazakstan in civil rights relations
Republic of Kazakstan shall act in the relations which are regulated by the civil legislation on an equal basis with any other participants of those relations which are citizens and legal entities. The bodies of the State, power and administration of the Republic of Kazakstan within the bounds of their authority established by the regulations and other acts determining the status of those bodies may act in the court on behalf of the Republic of Kazakstan and by their actions acquire and exercise property and personal non-property rights and obligations. Any other State bodies, legal entities and citizens may act in accordance with the special delegation by the Republic of Kazakstan in the cases and in accordance with the procedure provided in the legislation. The civil rights disputes with the participation of the Republic of Kazakstan shall be settled by judicial bodies.
Article 112. Participation of administrative and territorial units in civil rights relations
An administrative and territorial unit shall act in relations which are regulated by the civil rights legislation on equal grounds, on equal basis with any other participants of those relations which are citizens and legal entities. The local representative and executive bodies of par within the bounds of their authority established by regulations and any other acts which determine the status of those bodies may by their actions acquire and exercise property and personal non-property right and obligations in the name of the administrative and territorial unit and represent them in the court. In the cases and in accordance with the procedure provided in the legislation upon special instructions their local state bodies, legal entities and citizens may act on the behalf of the relevant administrative and territorial unit. In the cases which are provided in the legislation that administrative and territorial unit may act in civil rights relations on behalf of the State. The provisions of the present Code concerning the participation of the State and its bodies in relations regulated by the civil rights legislation shall apply to administrative and territorial units and their bodies unless otherwise follows from the legislation. Civil rights disputes of the participation of the administrative and territorial unit shall be settled by the judicial bodies.
Article 113. Making claims in respect of obligations of the Republic of Kazakstan and administrative and territorial units
1. The Republic of Kazakstan shall be responsible in respect of its obligations by the property of the State, treasury while the administrative and territorial unit shall bear its responsibility in respect of its obligations by the property of the local treasury.
2. To the Republic of Kazakstan and the administrative and territorial units shall not bear any responsibilities upon the obligations of each other and also upon the obligations of citizens and legal entities while citizens and legal entities shall not bear any responsibility in respect of their obligations of the Republic of Kazakstan and administrative and territorial units except for the cases provided by the present Code and legislative acts.
Article 114. Application towards the state and administrative and territorial units
All the provisions concerning legal entities, the norms which determine the participation of legal entities in relations which are regulated by the civil legislation shall be applicable to the State and administrative and territorial units unless otherwise follows from legislative acts.
CHAPTER 3. OBJECT OF CIVIL RIGHTS
1. General Provisions
Article 115. Types of objects of civil rights
1. Property and personal nonproperty, benefits and rights shall be objects in the civil rights.
2. Things, money, including foreign currency, securities, works, services, objective or other results of creative and intellectual activities, trade names, commercial names, commercial names and trade marks and any other means of industrialization of items, property rights and any other property shall be referred to property benefits and rights (property).
3. Life, health, dignity of a person, honor, good name, business reputation, inviolability of private life, personal and family secrets, the right to name, the right to be author, the right to inviolability of production and any other non-material or intangible benefits and rights shall be referred to non-property benefits and rights.
Article 116. The turnover capacity of the items of civil rights
1. Items of the civil rights may be freely alienated or transferred from one person to another in the course of the universal legal succession (inheritance, reorganization of a legal entity} or by other means, unless they are exempted from the turnover or restricted in the turnover.
2. Types of things the alienation of which is prohibited (things exempted from the turnover) must be directly indicated in legislative acts. The types of things which may not belong to only predetermined participants of the turnover or those the acquisition and alienation whereof is permissible only upon the special purpose permission (things whose turnover is restricted) shall be determined in the legislation.
3. Personal and non-property rights and benefits shall not be alienable and are not transferable by any other means except for the cases which are established in the legislative, acts.
Article 117. Movable and immovable property
1. The following shall be referred to immovable things (real estate, premises) pertain: buildings, structures, perennial, plantations and any other assets which are strongly fixed to the ground that is the items the transfer whereof is impossible without unreasonable damage their designation.
2. Also the air and sea vessels, the vessels of the internal domestic travel, the vessels of river, sea, the cosmos items shall be also equated to immovable things which are subject to the state registration. Any other assets may be referred by the legislative acts to immovable things.
3. Assets which are not referred to immovables including money and securities shall be recognized as movable assets. Registration of the rights in respect of movable assets shall not be required except for the cases provided in the legislative acts.
Article 118. State registration of immovables
1. The rights of ownership and any other rights to immovable in respect of immovables, the restriction of those rights, their emergence, transfer and cessation shall be subject to the state registration in a single state register.
2. The following rights in respect of immovable items shall be subject registration: the right of ownership. the right of business authority, the right of operative administration, the right of the permanent. land use, the right to lease, mortgage, servitude, the right to passage. In the cases which are provided by the legislative acts besides the state registration which is provided in paragraph 1 and 2 of these articles there also may be exercise the special purpose registration or accounting for individual types of immovable assets.
3. The transactions involving immovables shall be subject the State registration with the compliance with the rules of Chapter 4 of the present Code.
4. A body which carries out the State registration of the rights to immovables and transactions therewith shall be obliged upon the petition of the right holder or title holder to certify the registration made by means of issuing a document concerning the registration of the right or transaction or commitment of an entry in a document which is presented for the registration.
5. The State registration of the rights to immovables and transactions therewith shall be public. The body which carries out the registration shall be obliged to present the information concerning the registration made and the rights which are registered to any person.
6. The refusal in the state registration of the right to immovables or transactions or a transaction therewith or ungrounded evasion from the registration may be challenged in the court.
7. The procedure of the state registration the reasons for the refusal to register shall be established in accordance with the present Code by the law of the Republic of Kazakstan concerning, the registration of the rights to immovable assets and transactions therewith.
Article 119. Enterprise
1. An enterprise as an item of rights shall be recognized to be a property complex which is used for carrying out entrepreneurial activity an enterprise as a whole, as a property complex shall be recognized as immovable.
2. An enterprise as a whole or a part thereof may be an item in purchasing and selling, pledging, leasing and any other transactions which are related to the establishment alteration or association of property of material rights.
3. As a property complex the enterprise shall include all types of property which are intended for its activity which including the buildings, the structures, the equipment to implement, raw materials, production right, landlord right, the right to claim, debts and also the right to designations which individualize its activities (commercial name and trade marks) and any other exclusive rights unless other-wise is provided in the legislative acts or an agreement,
Article 120. Divisible and indivisible property
Property(assets) may be divisible and indivisible. Divisible assets are assets parts thereof as a result of division shall not lose the designation (function). Indivisible assets are the assets which may not be divided without chartering its economic designation (function) or it is not to be subdivided by virtue of a prescription in the legislative acts. The special features of indivisible things as items in the right in the law shall be determined in the legislation.
Article 121. Compound things
If heterogeneous things form a single unit which permits to use it in accordance with the designation determined by the essence of the compound they shall be considered to be one thing (compound things). The effect of the transaction which is concluded in respect of a compound things shall apply to all its constituent parts unless the agreement provides otherwise.
Article 122. The main thing and its accessory
An accessory that is a thing which is intended to serve the main thing and which is associated with it by the general economic purpose shall follow the fate of use of the main thing unless the legislation or agreement does not provide otherwise.
Article 123. Fruits, Products and Income
The receipts obtained as a result of using assets ( fruits, products, income) shall belong to the person who uses those assets on a legal bases unless otherwise is provided in the legislation or in agreement concerning the use of that asset.
Article 124. Animals
General rules concerning things shall apply to animals in far as the legislation does not provide otherwise.
Article 125. Intellectual property
In the case and in accordance with an procedure provided in the present Code an exclusive right of a citizen shall be recognized as a legal entity in respect of the results of the intellectual creative activities and the means equated there to of the individualization of a legal entity production of physical of legal entity working services carried out by them (commercial name and trade mark and service mark etc.). The use of the result of the intellectual creative activities and of the resources of the individualization which may be an item to exclusive rights (intellectual property) may be carried out by third persons only with the consent of the title holder.
Article 126. Official and commercial secrets
The civil legislation shall protect the information which constitutes an official or a commercial secret in the case when the information has actual or potential commercial value by virtue of its being unknown to third parties and there is no access there to on the legal basis and the possessor of the information takes measures to protect its confidentiality. Persons who by illicit methods obtain such information and also persons who work contrary to the labor agreement or the counter-parties which act contrary to the civil rights agreement which divulge a business or a commercial secret shall be obliged to compensate the damage inflicted.
Article 127. Money (currency)
1. The monetary unit in the Republic of Kazakstan shall be tenge. Tenge shall be the legal tender which is compulsory to be accepted in accordance with its nominal value in the whole of the territory of the Republic of Kazakstan.
2. Payments in the territory of the Republic of Kazakstan shall be carried out in the form of cash payments and non-cash payments.
3. The cases, the procedure and the conditions for settlements is foreign currency in the territory of the Republic of Kazakstan shall be determined by the legislation.
Article 128. Currency assets
The types of assets which are recognized as currency assets and the procedure for the transactions in the respect thereof shall be determined by the law of the Republic of Kazakstan concerning the currency regulation. The right to own currency asset shall be protected in the Republic of Kazakstan on the general basis.
Article 129. A security
1. A security shall be a document which certifies in observance with a certain pro forma and the required details, the property right the exercise thereof is only possible upon its presentation.
2. In the cases which are provided in the legislative acts the exercise and transfer of rights certified by the security it shall be sufficient to bring proves from its entry in the special register (special or computerized) of the issuer, the person who issued the security and who bears the responsibility in respect of their obligation indicated therein.
Article 130. Types of securities
1. Debentures, bells of exchange, checks, bank certificates, consignment, share -and any other documents which are referred by the legislation concerning securities or in accordance with the procedures established therein shall be securities.
2. Securities may be bearers, order and registered name and inscribed. The rights which are certified by securities shall belong to the person inscribed in it. The rights which are certified by the bearers security shall belong to the bearer of the security.
The rights which are certified in the order security shall belong to the person indicated in it and in the cases of the transfer of those rights in accordance with the procedure provided in Part 3 of Article 132 of the present Code to any other authorized person.
3. The legislative acts may exclude the possibility of issuing securities of a certain type as inscribed securities or as order securities or as bearer securities.
Article 131. The requirements concerning securities
1. The types of the rights which are certified by securities the mandatory details of securities, the requirements in respect of the pro forma of the security and any other necessary requirements shall be determined in the legislative acts and in accordance with the procedure established thereby.
2. The lack of the mandatory details of a security or non-compliance of the security with the pro forma established thereof shall result in its invalidity.
Article 132. Conveyance of rights associated with a security
1. To convey to any other person the rights certified by security, bearer security it shall be sufficient to hand that security to that person.
2. The rights certified by an inscribed security shall conveyed in accordance with the procedure established for the assignment of the claim cessation (cession). In accordance with Article 347 of the present Code a person that conveys the right in respect of security shall bear the responsibility for the invalidity of the relevant requirements but not for its implementation in the transfer of the rights associated with the inscribed security to any other person the security in the transfer shall be annulled and another security shall be issued to the new holder.
3. The right associated with the order securities shall be conveyed by means of committing or making on that security over conveyance entry, endorsement. A person who transfers the rights in respect of an order security (endorser) shall bear responsibility not only for the existence of the title but also for its exercise. An endorsement which is committed on a security shall convey all the rights certified by the security to the person to whom or by the order whereby the rights shall be conveyed associated with the security, the endorser assignee. The assignor may be blank (without the indication of a person to whom the execution must be addressed). The endorsements may be restricted only to the instructions to exercise the right certified by the security without the conveyance of that right to endorser (re-entrusted endorsement). In that case the endorser shall act as the representative.
Article 133. Execution on securities
1. The person that issued a security and any other persons who endorsed shall bear a joint liability before its legal owner. In the case of satisfying the claims of the legal owner of security concerning the execution of obligation certified by one or several persons from amongst those obliged in respect of the security they shall acquire the right of the return claim (regress) in respect of any other persons who were obliged in respect of the security prior to them.
2. The refusal to execute the obligations certified by the security with the reference to the lack of the grounds for the obligations or to its invalidity shall not be permissible. An owner of the security who revealed forgery or fraud in respect of a security shall have the right to present the person that conveyed the security their claim to properly execute the obligations certified in the security and concerning the security and of the compensation of losses. The right in respect of securities held by any legal owner shall not be exercised.
Article 134. The restitution of a security
The restitution of the rights associated with the lost securities, bear securities and order securities shall b carried out by the court in accordance with the procedure provided in the procedure legislation.
Article 135. Non-documented securities
1. In the cases which are established by the legislative acts or in accordance with the procedure provided therein an organization which is a depository and which received a special purpose license may in accordance with the agreement with the issuer (depository agreement) carry out the fixation of the rights affixed in inscribed or order securities including in a non-documentary form (with the help of the means of electronic and computer equipment etc.). To such form of fixation of the rights the rules shall be used-d which are established by the present Code and any other legislative acts for concerning securities unless otherwise follows from the special features of the fixation. Fixation which is carried out in accordance with the petition of the issuer or a person who is registered as the holder of the respective rights shall be equated to the security and it shall be sufficient to exercise entrance for the right associated with the security. Upon the request of the holder of the right the depository shall be obliged to issue to him a document which certifies their fixed rights. The rights which are certified by way of fixing with the depository the procedure of the activities for the activities of depositories of securities and for issuing to them of licenses to carry out transactions with securities the procedure for the official fixation of rights and right holder by the depository, the procedure for the documentary confirmation of the depositories entries and the procedure for the commitment- of transactions associated with non-documentary securities shall be determined by the legislative acts and in accordance with the procedure established thereby.
2. The transactions with the non-documentary securities may be committed only by appealing to the depository who shall officially commit entries of the rights, the exercise the transfer granting and restricting the rights must be officially fixed by the depository.
The depository shall bear the responsibility for the preservation of the official entries ensuring their confidentiality. Presentation of correct information in respect of those entries and in respect of the commitment of the official entries concerning the transactions accomplished.
Article 136. Debenture
A security which certifies the right of its holder to obtain from a person that issued the obligation within the deadline indicated therein of the nominal value of debenture or any other property equipment shall be recognized as debenture. The debenture shall grant to its holder also the right to obtain a percentage fixed in it of the nominal value of the debenture or any other property rights.
Article 137. Check
A security containing unconditioned written order or the check issuer to the bank to pay to the check holder an amount indicated in it shall be recognized as check. A check must be presented for the payment within the term established by the legislation.
Article 138. Bill of Exchange
A security which certifies unconditioned obligation of the check issuer (simple bill of exchange) or any other payer indicated in the bill of exchange (transfer bill of exchange) to pay upon the arrival of the date indicated in the bill of exchange a certain amount of money to the owner of the bill of exchange (bill of exchange holder) shall be recognized as the bill of exchange.
Article 139. A share
1. A share shall be recognized to be a security which certifies the fight of its holder (shareholder). To obtain part of profits of profits of the joint stock company in the form of dividend, to participate in managing the affairs of the joint stock company and to the part of the property of the joint stock company which remains after its liquidation.
2. A joint stock company shall have the right to issue in accordance with the procedure established by the legislation and within the limits preference shares which guarantee to its holder to receipt of dividends as a rule in fixed percentage of the nominal value of the share irrespective of the results of the business activity of the joint stock company and also which give them preference right as compared to any other share holder to receive part of assets which remain after liquidation of the joint stock company and any other rights which are provided in the conditions of the issues of such shares. The preference shares shall not give to their holders the right of the participating in managing or affairs of the joint stock company unless otherwise provided in its charter.
3. The founders of joint stock company may introduce the golden share which does not participate in the formation of the charter fund and receipt a dividend. The owner of the golden share shall only have the right to bid over the decisions of the general meeting, the board and supervisory council in respect of the issue provided in the charter.
Article 140. Bank certificate
The bank certificate shall be a written certificate of a bank about the investment of monetary resources which certify the right of the investor to receipt upon the expiration of an established sum of the amount of investment and interest of it in any institutions of that bank.
3. Protection of Personal Non-Property Right
Article 141. Protection of the personal non-property right
1. A person whose personal non-property rights are violated apart from measure provided in Article 9 of the present Code shall have the right to compensation of the moral damage in accordance with the rules of the present Code.
2. A protection of personal property right shall be carried out in the court in accordance with the procedure provided in the civil procedure legislation.
3. The personal non-property right shall be subject to protection irrespective of the quilt of a person that violated the right. The person who presented the requirement or protection must prove the fact of the violation of his personal non-property right.
4. The person whose non-property right is violated may at his discretion to demand of the elimination of the consequences of the violation from the violator or at the expense of the violator to independently commit the necessary actions or to instruct the commitment to a third party.
Article 142. Personal non-property rights associated with property rights
When simultaneously the personal non-property and property rights are violated the amount of compensation of the financial damage may be increased taking into account the compensation which is due to the victim because of the violation of his personal non-property rights.
Article 143. Protection of honor, dignity and business reputation
1. A citizen or a legal entity shall have the right to request through the court of the refutation of the information which damages his honor, dignity or business reputation unless one who spread that information proves that the information is reliable.
2. Where the information that damaged the honor, dignity or business reputation of a citizen or a legal entity are spread through the mass information media they must be refuted through the same mass information media. In the case where the indicated information is contained in a document issued by an organization such document shall be subject to replacement or annulment. The procedure for refuting in any other cases shall established by the court.
3. A citizen or a legal entity in respect thereof the mass information media published the information that restrict his rights or legal interests shall have the right to publish his response through the same mass information media.
4. The request of a citizen or a legal entity to publish a reputation or response in the mass information media shall be considered by the court in the where the mass information body refused such publication or did not conduct the publication within one month.
5. Where the decisions of the court is not executed the court shall have the right to impose the fine upon the violator which shall be taken for benefit, for the revenue of the budget.
The fine shall be imposed in accordance with the procedure and in the amounts which are established by the civil procedure legislation. The payment of the fine shall not exempt the violator from the obligation to fulfill the decision of the court which is provided to be implemented.
6. A citizen or a legal entity in respect thereof the information was spread that damage his honor, dignity or business reputation shall have the right apart from refutation of such information to demand compensation for the damage and moral harm inflicted by their spread.
7. Where it's impossible to identify a person that spread the information which damage the honor, dignity or business reputation of a citizen or a legal entity the person in respect of whom such information in spread shall have the right to enter the court with the application to recognize the information spread as not true.
Article 144. The right to protect the secrets of private life
1. The citizen shall have the right to protect the secrets of his personal life, the secrets of letter exchange, diaries, notes, remarks, private life, adoption birth, medical, legal, the secrets of investments and so on, the intangibility of the house and the personal image. The disclosure of the secrets of the private life shall only be possible in the cases which are provided by the legislative acts.
2. The publication of diaries, notes, remarks and so on shall be permissible only with the permission of their authors and in respect of the later only with the consent of their author and addressee. In the case for demise of one of them the indicated documents may be published with the consent of the security spouse and children of the deceased.
Article 145. The right to one's own image
Nobody shall have the right to use the image of somebody's face without his consent and in the case of his death without the consent of his inheritors. The publication, reproduction and distribution of a graphic piece (picture, photograph, film etc.) in which another person is depicted shall only be permissible with the consent of the depicted and after his death with the consent of his children and surviving spouse. Such consent shall not be required where it is established by the legislative acts or the person depicted was posing for a fee.
Article 146. The right to inviolability of housing
A citizen shall have the right to act in his house (apartment, home, hotel, etc.) at his discretion and to refuse any attempt's of intrusion to housing outside of his will except for the cases provided in the legislative acts.
Article 147. The concept of a transaction
The actions of citizens and legal persons and legal entities which are aimed at the establishing, changing or terminating civil rights and obligations shall be recognized as transactions.
Article 148. Unilateral transactions and agreements
1. The transactions may be unilateral and bi-or multilateral (agreements).
2. A transaction the performance whereof in accordance with the legislation or the agreement by the parties requires and is sufficient the expression of the will of one party shall be recognized as unilateral transaction.
3. To commit an agreement which shall be necessary to express agreed will of two parties (bilateral transaction) or three and move parties (multilateral transaction).
Article 149. Legal regulation of unilateral transaction
1. A unilateral transaction shall create obligations for the person that commits the transaction. It may create obligations for any other persons only in the cases which are provided in legislative acts or by agreement of those persons.
2. Appropriately the general provisions concerning obligations and agreement in Section III shall apply to unilateral transactions in as much as it does not contradict the legislation, the nature and the essence of the transaction.
Article 150. Transactions committed under condition
1. A transaction shall be considered to be committed under delaying conditions where the parties put the emergence of writing an obligation into relation from a circumstance in respect it's not known where it will occur or not.
2. A transaction shall be considered to be committed under the condition if the parties have put the cessation of writing obligations until relation from the circumstance in respect thereof it is not known where it will occur or not.
3. If the emergence of a condition was implemented unfairly by the party to which the emergence of the condition is not profitable then the condition shall be recognized as having place.
If the emergence of a condition was unfairly assisted by the party for which arising of the condition is favorable then the condition shall be recognized as not taking place.
Article 151. The form of transactions
1. Transactions can be committed orally or in writing (simple or notary).
2. The transactions for which legislation or the agreement of parties does not prescribed or written (simple or notary) or any other identified form, may be committed orally in particular any transactions which are executed by their commitment or through their commitment. Such a transaction shall be considered to be committed in the case where the behavior of the person proves the will to commit the transaction.
3. A transaction which is confirmed by issue of a ticket, token or any other symbol which is used for confirmation shall be deemed to be concluded with oral form unless otherwise is provided in the legislation.
4. Silence shall be recognized as the expression of the will to commit the transaction in the cases which are provided by the legislation or the agreements of the parties.
5. Transactions to execute an agreement which is concluded in writing may be agreement of the parties be committed orally unless that contradict the legislation under agreement.
Article 152. The written form of a transaction
1. The following transactions must be executed in writing:
1) those which are carried out in the course of entrepreneurial activities except for the transactions which are executed by the commitment itself where for individual types of transactions if otherwise is not provided in the legislation or does not follow from the customs of the business turnover;
2) for the amount of more than twenty five minimum wages except for the transactions which are executed by their own commitment by their commitment itself;
3) in any other cases which are provided in the legislation or the agreement of the parties.
2. A transaction which is committed in writing should be signed by parties or their representatives unless otherwise follows from the customs of the business turnover. It shall be permitted when committing transactions to use the resources of facsimile copying of signatures unless this contradicts the legislation or requirements of one of the parties.
3. Bilateral transactions may be committed by way of exchanging documents each of which is signed by the party from which it comes out. The exchange of letters, telegrams, telephonegrams, teletypes, facsimiles or any other documents which identify the entities and the contents of their will shall be equated to the commitment of transactions in writing unless otherwise is provided in the legislation or agreement of the parties. The legislation and the agreements of parties may establish additional requirements to which the form of a transaction must correspond (commitment on the proforma of a certain type, verification with the seal, etc.) and provide the consequences of non-compliance with those requirements.
4. Where a citizen as a result of physical ailment, disease or illiteracy cannot personally sign then upon his request the transaction may be signed by any other citizen. The signature of the latter must be verified by the notary or any other official who has the right to commit such notary action with the indication of the reasons for which the person who committed the transaction may not sign it personally.
5. The party which executed a transaction in writing shall have the right to require from the other party the document which confirms the execution. The same right shall belong to the party which executed an oral entrepreneurial transaction except for transactions which are executed at the moment of their commitment.
Article 153. Consequences of non-compliance with a written pro forma of a transaction
1. Non-compliance with the simple written pro forma of a transaction shall not result in its invalidity but it shall deprive the parties of the right in the case of a dispute to confirm its commitment contents or execution with a witness evidence. The parties however shall have the right to confirm the commitment contents or execution of the transaction in writing or any other proofs except for witnesses evidence.
2. In the cases which are directly provided in the law or in the agreements by the parties the non-compliance with the simple written pro-forma of a transaction shall result in its invalidity.
3. Non-compliance with the simple written pro forma shall result in pro-forma of a foreign economic transaction shall result in the invalidity of a transaction.
Article 154. Notarization of a transaction
1. In the cases which are provided in the legislative acts or by the agreements of the parties the written transactions shall be deemed to be committed only upon their notarization. The non-compliance with these requirements shall result in the invalidity of a transaction with the consequences provided in paragraph 3 of article 157.
2. Where a transaction which requires notarization is actually executed by the parties or by one of the parties and by it contents does not contradict the legislation and does not violate the rights of the third parties the court upon the application of the interested party shall have the right to recognize the transaction as valid. In that case the subsequent notarization of the transaction shall not be required.
Article 155. Registration of transactions
Transactions which in accordance with the legislative acts are subject to state or any other registration shall be deemed to be committed after the registration shall be carried out upon the application of the interested party in accordance with the application handed or forwarded by mail to the registration body. Refusal to register shall only be possible with their reference to the violation of the requirements of the legislation.
A body which refuses to register must in accordance with the court demand the recognition of the transaction as invalid. Unless such a requirement is submitted within three months after receipt of the registration documents the transaction shall be recognized.
Article 156. Exchange transactions
1. Agreements concerning mutual conveyance of writing obligations in respect of properties (goods, securities etc.) which is permitted to be circulated at the exchange (exchange transactions) shall be concluded by the participants of the exchange in accordance with the procedure which is established by the legislation concerning commodity, stock and other exchanges and in exchange charters.
Exchange transactions may be documented by broker records. Transactions shall be subject to registration by the exchange.
2. To exchange transactions in a relation to the contents the rules shall be applicable concerning the relevant agreements (purchase and sell commission etc.) unless otherwise follows from the legislation the agreement of the parties or the essence of the transaction. The legislation or exchange charter may provide the conditions of exchange transactions which constitute commercial secrets of the parties and shall not be subject to without their consent.
3. Disputes which are associated with conclusion of conclusion of an exchange arbitration attached to the relevant exchange the decision thereof may be challenged in a court.
4. Unless the present Code or any other legislative acts establish otherwise, the rules of the nomination agreement shall apply to the agreement concerning the conveyance of assets by the principal to his agent for commitment of transactions and any other legal actions associated with the management of those assets (trust transactions).
Article 157. Invalid transactions and consequences of invalidity
1. When violating the requirements which are applicable to the pro-forma contents and participants of a transaction and also to the freedom of their will the transaction may be recognized as invalid in accordance with the action of the interested parties, duly authorized body or prosecution officer.
2. The foundations of invalidity of a transaction and also the list of persons who have the right to demand the recognition thereof as invalid shall be established by the present Code or any other legislative acts.
3. When recognize the transactions as invalid each party shall be obliged to return to the to the other party everything that was received in the transaction and where it is not possible to return it in- kind to return its value in money.
4. Where transaction is aimed at the achievement of a criminal purpose then where the intention present with both par-ties, everything received by them in the transaction or intended to be received in accordance with the decision of verdict of the court shall be subject to confiscation. In the case of the execution of such a transaction by one party from the other party subject to confiscation will be everything which is received by it and everything which is due by it in the transaction of the first party.
Where none of the parties proceeded to the execution everything shall be subject to confiscation which is provided in the transaction for the execution.
5. Where intention exists to achieve a criminal purpose only by one of the parties everything that is received by it in a transaction shall be subject to return to the other party and what is received by the latter or due to it in the transaction shall be subject to confiscation,
6. Taking into account the specific circumstances the court shall have the right not 4 and 5 of to use partially or in full the consequences which are provided in paragraph these articles as concerns the confiscation of the assets received or subject to receipt through the invalid transactions in that part the consequences shall arise which are provided in paragraph 3 of this article.
7. Besides the consequences provided in paragraph 3,2,6 of this article the court may find from the party which is guilty in the commitment of actions which cause the invalidity of a transaction for the benefit of the other party the lasses incurred by the latter which are associated with the recognition of a transaction as invalid.
8. An invalid transaction shall not result in any legal consequences except for those which are associated with its invalidity and it shall be invalid from the moment of its commitment.
9. In recognizing a transaction as invalid the court shall have the right taking into account the specific circumstances to restrict it self by the prohibition of its further execution.
Article 158. Invalidity of a transaction the contents whereof do not comply with the requirements of the legislation
Invalidity of a transaction the contents whereof does not meet the requirements. of the legislation an invalid transaction the contents whereof do not comply, with the requirements of the legislation and one which is committed for the purpose which is deliberately opposite to the fundamentals of the law and order or moral or affix.
Article 159. The reasons for invalidity of transactions
1. An invalid transaction committed without obtain the necessary license or after the expire of the term of or of a license.
2. An invalid transaction which pursues the purposes of unfair competition or which violates the requirements of business ethics.
3. An invalid transaction is the one which is committed by the person that did not reach fourteen years of age except for transactions provided in the article 22 of the present Code.
4. A transaction which is committed by a junior which reached for-teen years without a consent of his parents (adopters) or sponsors except for transactions which he in accordance with the law has the right to commit independently may be recognized by the court as invalid upon the action of the parents (adopters) or the guardian.
5. A transaction shall be invalid which is committed by a person which is recognized as incompetent as a result of a mental disease or mental weakness a transaction which is committed by a citizen who; afterwards recognized as incompetent article 26 may be recognized by the court as invalid upon the action of its guardian if it is proved that at the moment of the commitment of transaction that citizen was in the condition of the psychic disorder.
6. Upon the requirement of the sponsor the court may recognize a transaction as invalid which is committed by the person whose deed capacity was restricted by the court.
7. A transaction which is committed by a citizen who although capable but was at the moment of this commitment in a state where in he could not realize the significance of his actions or guide them may b recognized by the court as invalid in accordance with the action of that citizen but if when alive the citizen did not have no opportunity to present on action after the death of a citizen upon the action of other interested persons.
8. A transaction which is committed as a result of misleading which has significant importance may be recognized by the court as invalid upon an action by the party which acted under the influence of misleading. The significant importance has the misleading in respect of the nature of a transaction its identity or any other qualities of its subject which significantly reduce the possibility of its use for the intention. Misleading in motives may be grounds may serve as a ground for invalidity of a transaction only when such motive is included in its contents as a delaying or annulling condition article 150. If misleading is a result of prose. carelessness of the participant of the transaction or is covered by his entrepreneurial risk the court taking into account the specific circumstances and the interest of the other participant of the transaction shall have the right to refuse the action to recognize the transaction as invalid.
9. A transaction which is committed under the influence of a fraud, violence, threat malicious agreement of the representative of one party with the other party and also the transaction which the person was compelled to commit as a result of the combination of difficult circumstances on the extremely unprofitable for himself conditions which was used by the other party (share agreement) may be recognized in the court as invalid upon the action of the victim.
10. A transaction which is concluded as a result of a mischievous agreement of the representative of one party with the other party may be recognized in the court as invalid upon the action of the victim party. The compensation of lasses which are inflicted upon the victim party (paragraph 4 article 9) in a subsidiary procedure may be imposed on the unfair representative.
11. A transaction which is committed by illegal entity in contradiction with the purposes-of its activities which are definitely restricted in its foundation documents or by legal entity which does not have a license engaged in a certain activity (paragraph 1 of article 45) or with the violation of the charter authority of the body of illegal entity which concluded the transaction may be recognized by the court as invalid upon the action of that legal entity its founder participant or the state body which exercises the supervision or monitoring their activities of illegal entity if it is proved that the other party in the transaction knew or deliberately must know about such violation.
12. Transaction which are provided in paragraph 3 and 5 of this article upon the demand of the parents adopters or guardians of infants or incompetent persons by the decisions of the court may be recognized as invalid if they are committed for the benefit of the indicated persons.
Article 160. Fictitious or pretended transactions or faked transactions
1. Fictitious transactions shall be invalid which are committed only for the appearances without intentions to cause any legal consequences.
2. If one transaction is committed only for the purpose of hiding away any other transactions in (faked) then the rules shall be applied which are applicable to the transaction which the purposes actually intended.
Article 161. Consequences of invalidity of parts of a transaction
Consequences of invalidity of the part of the transaction shall not result in invalidity of its other part if it is possible to presume that the transaction would be committed without the inclusion if the invalid part thereof.
Article 162. The statute of limitations in respect of invalid transactions
1. The statute of limitations in respect of the disputes associated with the invalidity of a transaction on a ground provided in Article 159 (except for paragraph 9) shall constitute ten years.
2. The statute of limitations in respect of the disputes associated with the invalidity of a transaction on the ground provided in paragraph 9, of article 59 shall constitute one year from the date of the cessation of the violence or threat under which the transaction was committed or from the date when the plaintiff learned or was to,. learn about other circumstances which are the basis for the recognition of the transaction as invalid.
Chapter 5. Representation and the Power of Attorney
Article 163. Representation
1. A transaction which is committed by one person (representative) on behalf of any other person (represented) by virtue of the authority based on the power of attorney law, resolution of the court or any administrative acts shall directly create amend or terminate the civil rights and obligations of the represented. The authority may also be clear from the circumstances situation in which the representative is acting (salesman in retail trade, cashier, etc.).
2. The right of obligation shall arise directly with the represented in accordance with the transaction committed by the representative.
3. A representative may not commit transactions on behalf of the represented neither in respect of himself personally nor in respect of any other person whose representative he is at the same time.
4. The person who act although in somebody else's interest but in their own name (commercial intermediaries, tender administrators in bankruptcy, executors of with and inheritance etc.) shall not be representatives of the persons and also the persons which are authorized for entering into negotiations in respect of transactions which are possible in the future. Pieces of art and the parts thereof which are protected in accordance with the copyright: surnames, names, pseudonyms.
5. It shall not be prohibited to commit through a representative the transactions which by their nature must be committed only in person and also any other transactions in the cases which are provided in the legislative acts.
Article 164. Representation of incompetent persons
In the name of the incompetent persons the transactions shall be committed by their legal representative, the parents (adopters) and guardians.
Article 165. Representation without authority
A transaction which is committed on behalf of any other person by the person which is not authorized to commit the transaction or with the exceeding the powers exceeding the authority shall create amend or terminate the civil right and obligations for the represented or only in the case of subsequent approval by him of that transaction. The following approval by the represented shall make the transaction valid from the moment of its commitment.
Article 166. Commercial representation
1. The person who permanently and independently represents entrepreneurs then conclude act on the basis of a written agreement -which contains the indications in respect of the authority of the representative and in the case when such indications do not exist also by power attorney.
2. A commercial representative may at the same time represent the interests of various parties of an agreement which is concluded with his participation. In that respect he shall be obliged to execute the instructions given to him with the care of a usual entrepreneur. A commercial representative shall have the right to demand the payment of the remuneration caused and expenses incurred by him when executing the instructions of the party of the agreement in equal shares unless otherwise is provided in the agreement between them.
3. The commercial representative shall be obliged to keep in secret the information which became known to him concerning trade transactions and after executing the instructions given to him.
4. The special considerations of a commercial representation in various spheres of entrepreneurial activity shall be established in the legislation.
Article 167. Power of attorney
1. A written authorization of one person (the trustor) for the representation on his behalf which is issued to another person (trustee) shall be recognized as power of attorney. The power of attorney for managing assets and to commit transaction which require notarization must be notarized unless otherwise is provided in the legislative acts.
2. The following shall be equated to notarized power of attorney. Powers of attorney of the military servicemen and any other persons who are in medical treatment at hospital, sanitarium or any other military and medical institutions which are certified by the chiefs deputy and deputies for-medical parts, senior and physicians on duties of those hospitals, sanitarium and any other military medical institutions. Powers of attorney of the military servicemen and at the points of dislocation of military units, institutions and military organizations where there is no state notary officers nor any other bodies which commit notary actions also the powers of attorney of workers and employs members of their families and family members of the military servicemen who which are certified by the commanders chief, of those units, institutions and organizations powers of attorney of the persons who are in places of deprivation of freedom certified by the heads of the places of deprivation of freedom powers of attorney of full age capable citizens who are in the institutions of the social protection of the population certified by heads of that institution or the appropriate body of the social protection of population.
3. Power of attorney to receive correspondence including money and parcels to obtain wages and any other payments of citizens and legal entities may be certified by the bodies of the local administration of the territory in which the trustor resides organization in which he works or studies housing maintenance organization and the place of residence administration of the stationary medical institutions which he is being medically treated and also by the commanders of the relevant military units when the power of attorney is issued to the military serviceman. The power of attorney which is sent by telegraph and by any other types of communications when the dispatch of the document is carried out by the employ of the communication shall be certified by the bodies of communication.
4. The third person shall have the right to consider as authentic the power of attorney which is issued for the commitment of their actions which is sent by the trustor to the trustee through facsimile and any other communications without intermediary without use of official bodies of communication.
5. The power of attorney on behalf of a legal entity shall be issued with the signature of its manager or any other person who is authorized thereof by the foundation documents and each shall be attested by the sea of that organization.
6. A power of attorney on behalf of the state body commercial or non-profit organization to receive or pay the money or any other material assets financial assets may be signed also by the chief (senior) accountant of that organization.
7. The procedure for issuing and the pro forma of the power attorney to commit transactions in a bank and power of attorney for committing transactions in the area of trade may be determined by the special rules.
Article 168. The term of a power of attorney
A power attorney may be issued for a term of not more than three years if a longer term is indicated therein it shall be effective within three years and if the term of effect is not indicated therein then it well be effective within one year from the date of the issue.
A power of attorney shall be invalid if it does not have the date of the issue.
Article 169. Reassignment
1. A trustee must personally commit actions for which he is authorized. He may reassign the commitment to any other person only in the case where he is authorized therefor by the power of attorney received or is compelled to do this by virtue of the circumstances for the protection of the interest of the trustor.
2. A power of attorney in which the trustee conveys the powers to any other person must be notarized except for the cases provided in paragraph 3 of article 69.
3. The term of effect of the power of a attorney which is issued for reassignment may not exceed the term of effect of the regional power of attorney on the basis thereof which was issued.
4. The trustee who reassigned the powers to any other person must immediately notify of the trustor and to communicate to him the necessary information concerning that person and his place of residence. The failure to comply with this obligation shall' impose on the entrusted person the responsibility for the actions the person to whom he reassigned the powers as for his own.
Article 170. Termination of a power of attorney
The effect of a power- of attorney shall cease as a result of the following:
1) Expiration of the term of the power of attorney.
2) Annulment of the power of attorney with the person that issued it.
3) The refusal of the person to whom the power of a legal entity thereof the power of attorney was issued.
5) The termination of a legal entity in the name on whose behalf the attorney was issued.
6) The demise of the person who issued him as incompetent, limited capability or obscurely absent.
7) Demise of the citizen to whom the power of attorney was issued the recognition of himself as incompetent. limited capability or restricted capable or absent in obscurity.
2. The person who issued the power of attorney may at any time: the power of attorney or reassignment and the person to ,whom the power of attorney is issued to refuse from it. The agreement to wave this right shall be invalid.
Article 171. The consequences of terminating a power of attorney
1. Above the termination of the power of attorney article 170 the trustor shall be obliged to notify the pet-son to whom the power of attorney is issued and also any third parties for the representation to whom the power of attorney was issued. The same obligation shall rest with the legal successor of a person who issued the par of attorney in the cases of its termination on the grounds indicated in paragraph 4 and 6 of article 170 of the present Code.
2. Arising obligations which arise as a result the actions of a person to whom the power of attorney is issued prior to the time when this person learned or had to learn of its termination shall retain force for the one who issued the power of attorney and he is legal successor in respect of third party. This rule shall not apply with the third party knew or must have known that the action of the effect of the power of attorney was terminated.
3. When terminating a power of attorney the person to whom it is issued or he is legal successor must immediately return power of attorney.
4. Upon the termination of a power of attorney the conveyance of the powers in respect of that power of attorney to the other person reassignment) shall lose force.
Chapter 6. Calculation of Terms
Article 172. Determining terms
The terms is established by the legislation, transaction or is appointed by the court determined by a calendar date or indication of the event which must inevitably take place.
The term may be established also as a period of time which is calculated by years, months, weeks, days or hours.
Article 173. The beginning of the term which is established by the period of time
The course of a term which is determined by the period of time shall begin on the next day from the calendar date or the arrival of the event which determines its beginning.
Article 174. Termination of a period of a term or expiration of a periodic term
1. The term which is calculated which is measured by years shall expire within the relevant month, and date of the last year of the term. In respects of the term measure which is calculated as half year shall be applied the rules for the terms which are measured with month.
2. In respect of that term measured by quarters of the year the rule shall be applied of the terms (calculated) measured with months. In that respect a quarter shall be deemed to be equal to three months and the count of the quarters shall begin from the beginning of the year.
3. The term which is calculated which is measured by the last month of the term. The term which is determined as half-month shall be considered in the term measured with days and it shall be recognized as equal to fifteen days. If the expire of the term measured with month falls on such month is which that date is absent then the term shall expire on the last day of that month.
4. The term which is measured with weeks shall expire on the relevant day of the last week of the term.
Article 175. Expiration of a term on a non-working day
If the last day of the term falls on a day off then the day of expiration of a term shall be the nearest following working day.
Article 176. The procedure for committing any actions on the last day of a term
1. If a term is established for committing any actions it may be committed before the midnight (twenty four o'clock) of the last day of the term. However, if that action must be committed in an organization then the term shall expire at the hour when in accordance with the established rules that organization cease the relevant transactions.
2. Written applications and notifications which are submitted to the post office telegraph or any other institution of communications before 24 hours of the last day of a term shall be deemed to be submitted within the term.
Chapter 7. The Statute of Limitations
Article 177. The concept of the statute of limitations
The statute of limitations is the period of time during which the action play may be satisfied which arises from the violation of the rights of a person or the interest protected by law. The statute of limitation and the procedure for their calculation shall be provided in the law and may not be changed by the agreement of the parties.
Article 178. Terms of statutes limitations
The general term of the statute of limitations shall be established at three years for certain types of claims the legislative acts may establish special purpose terms of the statute of limitations which are shorter or longer as compared with the general term. The rules of articles 177, 179 to 186 of the present Code shall apply also to the special purpose terms of the statute of limitations unless the law provides otherwise.
Article 179. The application of the statute of limitation
1. Requirements to protect a violated right shall be excepted for the consideration by the court irrespective of the expiration of the term of the statute of limitation.
2. The statute of limitation shall be applied for the court only upon the application by the party in a dispute which is made prior to the adoption of the decision by the court. The expiration of the term of the statute of limitation prior to the presentation prior to the presentation of the action shall be the basis for the passing by the court of the refusal to file the action. Upon the expiration of the term of the statute of limitation oil the main claim the term of the statute of limitation shall expire in respects of the additional claims concerning the imposition of forfeit or the responsibility of the trustor and etc.
Article 180. The course of the term of the statute of limitation
1. The course of the term of the statute of limitation shall begin on the day when the person learned or must have learned of the violation of the right or the interest protected by law. Exceptions from these rules shall be established by this court and any other legislative acts.
2. (Upon the obligations) In accordance with the obligations with the definite term of execution the course of a statute of limitation shall begin upon the expiration of the term of the execution. In accordance with the obligations the term of the execution whereof is not determined or determined by the moment of the claim or demand the course of the statute of limitation shall begin from the moment when creditor begets the right to present the requirement concerning the execution of the obligation and where their debtor is given a privileged term for the execution of such claim the calculation of this statute of limitation shall begin on the expiration of the indicated term (paragraph 2 article 177).
3. In respect of regress obligations the course of the statute of limitation shall begin from the moment of execution of the main obligation.
Article 181. The term of the statute of limitation in the replacement of persons in an obligation
The replacement of persons in an obligation shall not result in any changes in respect of the statute of limitations and the procedure of its calculation.
Article 182. Suspension of the course of the term of the statute of limitations
The course of the term of the statute of limitation shall be suspended as follows:
1. Where the presentation of the action is impeded by an extraordinary or inevitable under those circumstance event (force-majeure).
2. By virtue of the announcement by the President of the Republic of Kazakstan of the delay of the postponement of the execution of the obligation of that type (moratorium).
3. Where the plaintiff and the defendant are among military units which are under the marshal law.
4. Where an incompetent person does not have any legal representative.
5. By virtue o suspending the effect of the law which regulates the relevant relations. In respects of the actions concerning the compensation of damage which is caused to life or health of the citizen the course of the term of tile statute of limitation shall be suspended also in a relation to the application by the citizen to the relevant body to appoint a pension or a benefit prior to the appointment of the pension or benefit or the refusal to appoint those.
6. The course of the term of statute of limitation shall be suspended on the circumstances indicated in this Article have or continuity exists during the last 6 months of the statute of limitations of such term does not exist 6 months during the course of the term of the statute of limitations.
7. The course of the statute of limitation shall continue from the date of the cessation of obligation which entailed the suspension of the statute of limitation. In that respect the remain part of the term of the statute of limitation shall be extended up to 6 months and where the term of the statute of limitation does not 6 months up to the statute of limitations.
Article 183. A break in the course of the term of statute of limitation
The course of the term of the statute of limitations may be interrupted by the presentation of the action in accordance with the established procedure and also by the commitment by the obligated person of the actions which witness the recognition of the debt or any other obligation. After the interruption in the course of the term of the statute of limitation shall begin a new the term which expired prior to the interruption shall not be included into the new term.
Article 184. The course of the term of the statute of limitations in the case of neglecting the action
If the action left by the court without consideration the course of the statute of limitations which began prior to the presentation of the action shall continue in accordance with the general procedure. Where the court left without consideration the action which is presented in a criminal case them the course of the term of the statute of limitation which began prior to the presentation of the action shall be suspended until the verdict enter into legal force by which the action was left without consideration, the term during which the statute of limitations was suspended shall not be included in the term of the statute of limitations. In that respect where the remaining part of the term is less than 6 months it shall be extended to up to 6 months.
Article 185. The restitution of the term of the statute of limitations
1. In exceptional cases where the court recognizes as serious reason for tending the term of the statute of limitations in respect of the circumstances which are associated with the personality of the plaintiff (heavy decease, helpless condition, illiteracy, etc. etc.?? violating -rights of the citizens shall be the subject to protection. The reasons for committing the term of the statute of limitations may be recognized as serious where they look place during the last 6 months of the term the statute of limitations if where the term is equal to 6 months, or is less than 6 months during, the term of the statute of limitations.
2. The term of the statute of limitations shall be reestablished and it shall its cause again the cases where the in accordance with the legislative acts gets the rights to the new action in the same case in relations with the refusal to execute the court decision in that case.
Article 186. Execution of the obligations upon the expiration of the term of the statute of the limitations
A debtor or any other obligated person which executed an obligation upon expiration of the term of the statute of limitations shall not have the right to require the execution the executed of the execution the indicated person did not know of the expiration of the term of the statute of limitations.
Article 187. The requirement to which the statute of limitations shall not apply
The statute of limitation shall not apply to the following:
1. To the requirements concerning the protection of non-material benefits personal non-property right except to tile cases provided in the legislative acts.
2. Requirements of the investors to the bank concerning the repayment of investments.
3. Requirements concerning the compensation of damage caused to left and health of the citizens. However the requirements x-vi-itch are presented upon the expiration of the statute of limitations shall be satisfied for no longer than 3 years preceding the presentation of the action.
4. Requirements or claim-n of tile owners or any other legal owner of eliminating any violations of his right or though even where those violations are not associated with deprivation of ownership (Article 234-235,5) in cases which are established in the legislative acts, or any other claims.
Section 2. The Rights to Own and Other Material Rights
Chapter 8. the Right to Own, General Provisions
Article 188. Concept and content of the right to own
1. The right to own shall be recognized and protected by the legislative acts, the right of an entity of its discretion to possess, use and dispose of the assets which belong to him.
2. The owner shall hold the rights of possessing, using and disposing of his assets. (The rights to own shall) the right to possess shall represent legally founded capacity to exercise the actual possession of the assets. The right to use shall represent the legally insured possibility to extract from the assets its useful natural properties and also to extract benefits out of it. The benefit may be in the form of income gain increase and in any other forms. The right to disposal shall represent legally formed possibility to conduct an actual possession of the property.
3. The owner shall have the right at his discretion to commit in respect of the asset with belong to him any actions including the alienation of the assets to the ownership of any other persons transfer to them remaining the owner, his rights in respect of the ownership, use and disposal of assets, transfer the assets as pledge and to use it any other methods and dispose of it by any other way.
4. The exercise by the owner of his authorities should not violate the rights and legally interest of any other person of the state, the violation of the right and legitimate interests may be expressed aside from any other forms in the violation by the owner the abuse by the owner of his monopoly or any other dominant position. The owner must adopt measures which prevent damage to health of citizens the environment which may be conflicted in the exercise of his rights.
5. The right to own shall be for an indefinite term. The right to own assets may be compulsory terminated any on the ground which are provided in the present Code 6. In the cases on the conditions within the limit provided in the legislative acts the owner must admit the restricted use of his assets by any other persons.
Article 189. The burden of supporting the assets
1. The owner shall bear the burden of maintaining the assets which belong to him unless otherwise provide in legislative ac's or an agreement and it may not in an unilateral procedure transfer such a burden on two or third person.
2. Where the assets legally, held by third parties, the expenses incurred by them associated with the else's assets shall be subject to reimbursement by tile owner unless otherwise is provided in the agreement. The expenditure associated with the maintenance of the assets shall not be reimburse to the person who possess the thing unfaithfully and illegally (Article 263).
Article 190. The risk of occasional destruction or occasional damage to property
1. The risk of an occasional destruction or an occasional damage to alienated things shall be transferred to the acquirer simultaneously which the of his right to own unless otherwise is provided in the legislative acts or agreement.
2. Where the alienator guiltily delayed the transfer of things or the acquirer- guiltily delayed the adoption there of the risk of the occasional destruction or an occasional damage shall be borne by the delaying party.
Article 191. The concept and type of private property
1. Private property shall be recognized as the property of citizens and (or) non-state legal entities and their associations. The property of public and religious associations are recognized as a type of private property.
2. Any assets except for certain types of properties which in accordance with legislative acts may not belong to citizens or legal entities may be in private ownership. The amount, the composition and the value of the assets which are in private ownership shall not be restricted.
Article 192. The right to state property
1. The state property shall be recognized as the republic property and communal property.
2. The republics property shall consist of the republic is treasury and assets which is entrusted to the state own republics legal entity in accordance with the legislative acts. The resources of the republic is budget, the gold reserve and the diamond stock, the exclusive state property and any other state properties which is not entrusted to the state own legal entities shall constitute the state treasury of the Republic of Kazakstan.
3. A communal property shall consist of the local treasury and assets which are entrusted to the communal legal entities in accordance with the legislative acts. The resources of the local budget and any other communal properties which are not entrusted to the state own legal entities shall constitute the local treasury.
4. The assets which are in the state ownership may be entrusted to the state legal entities in accordance with the right of business authority or operation administration.
Article 193. The state ownership of land and any other natural resources
1. Land, its subsurface, water, flora and fauna and any other natural resources which shall be exclusively in the state republic's ownership.
2. The special considerations in the exercise of the right to all land and any other natural resources shall be determined by the present Code the land and any other legislation.
Article 194. The right of ownership and any other material rights in respect of residential premises
The special considerations in exercise of the right of ownership and any other material rights in respect of residential housing shall be regulated by the housing legislation.
Article 195. Other material rights
The following shall be referred to other material rights:
the right of business authority;
the right of operational administration;
the right to entrusted administration;
the right to use land, pledge;
any other material rights.
Chapter 9. The Right to Business Authority
Article 196. The right to business authority over a state enterprise
The State enterprise to which the assets belong under the rights of business authority shall possess, use and dispose of the assets within the limits which are established in accordance with the present Code and any other legislative acts.
Article 197. The item in the right to business authority
Any assets unless otherwise is provided in legislation may be them in the right to business authority.
Article 198. The acquisition and termination of the right to business authority
1. The right of business authority in respect of assets with regard whereof the owner adopted the decision to entrust it to an exiling state of enterprises shall arise with that enterprise of the moment of the transfer of the assets and affixing it to an independent sheet of enterprise unless otherwise is provided in legislative acts or decision of the owner.
2. The fruits products and wastes from the use of assets which are in business authority and also be assets which are acquired by the enterprise shall in accordance with agreements or an any other grounds be received into the business authority of the enterprise in accordance with the procedure established in the legislation for the acquisition of the right to own.
3. The right of business ownership in respect of any assets shall terminate in accordance with the procedure provided in the legislation for the termination of the right to own and also in the cases of legal reservation of the assets from enterprises in accordance with the decisions of the owners.
Article 199. The right of the owner in respect of the assets which are in business authority
The owner of the assets which are in business authority in accordance with the legislative acts shall reserve the issues of creative enterprise determining the objects and purposes of its, activity, reorganization and liquidation shall exercise the control over the use in accordance with a designation and safety the assets which belong to the enterprise. The owner shall have the right to receive part of profit from the use of the assets which are under the business authority of the enterprise created by him.
Article 200. The conditions for exercising property rights of a state enterprise
A state owned enterprise which carries out activities under the rights to business authority shall not have the right without the consent of the owner or a state body authorized by the owner to commit the following types of entrepreneurial activity:
to sell or transfer. to any other persons exchange long term lease (longer than 3 years) transfer for temporary use the structures, equipment and any other fixed assets of the enterprise which belong to it;
create affiliates and subsidiaries established in contraction with private entrepreneurs of enterprises and joint productions invest in them its productive and monetary assets;
grant to private entrepreneurs loans with the payments of interests below the credit interest rate which is established by the National Bank.
A state own enterprise shall independently manage the movable assets which are entrusted to it under the right to business authority unless otherwise is provided in the legislation.
Article 201. The application of provisions concerning the right to own to the relations with the participation of the state enterprises
The provisions of the present Code concerning the right to own shall apply to property relations with the participation of the state enterprises unless otherwise follows from the present Code and any other legislative acts.
Chapter 10. The Right of Current Management
Article 202. The right of operational management the concept and contents of the right to operational management
The right to operational management shall be a material right of an institution which is finance of the expense of the resources of an owner and a public enterprise which recurred property from the owner and carry out within the limits established by the legislative acts in accordance with the purposes of their activities, tasks of the owner and designation of the assets the right to possess- use and dispose of those assets.
Article 203. The acquisition and cessation of the rights to operational management
The acquisition and cessation of the Rights to operational management shall be exercise on the conditions in the accordance with the procedure provided in Chapter 13 of the present Code unless otherwise is provided in legislation.
Article 204. The right of the owner of assets transferred into the operational management
The owner of the assets which are in operational management in accordance with the legislative acts shall resolve the issues of creating an institution (a public enterprise) determining the objects and items of its activities, exercise the right to determine the legal destiny of the institution (public enterprise) the contents of its activities. The owner shall exercise the controls or the efficiency of the use and (the safety of the institution) safety by the institution (public enterprise) in respect of the assets transferred to it by the owner. In the case where an institution is created by several owners the relations between themselves and the right of the owners to manage their assets shall be determined by the foundation agreement or similar agreement.
Article 205. The right of the owner to reserve and redistribute assets transferred into the organizational management
The owner of the assets entrusted to an institution (a public enterprise) shall have the right to reserve their assets or redistribute them between any other legal entities created by himself at his discretion unless otherwise is provided in the legislative acts.
Article 206. The disposal of the assets of an institution (a public enterprise)
1. An institution shall not have the right to alienate or in any other way dispose of the assets which are entrusted to it and the assets which are required at the expense of the resources appropriated to It in accordance with the budget. If in accordance with the foundation documents an institution is granted the right to carry out activities which bring benefits them the income received from such activities and the acquisition at the expense of such income of properties shall be transferred to independent possession of the institution and shall be accounted in a separate balance-sheet.
2. A public enterprise shall have the right to alienate or in any other way dispose of the assets entrusted to it only with the consent of the owner of those assets. A public enterprise shall independently sell production manufactured by its unless otherwise is provided in the legislation. The procedure for distributing income or a public enterprise shall be determined by the owner of its assets.
Article 207. Making a claim in respect of the assets transferred into operational management
1. The fine in respect of the assets which are in the operational Management of an institution (a public enterprise) shall be applicable in accordance with the legislation unless otherwise is provided by the present Code and the legislative acts.
2. Where an institution has income from business activities the imposition on the assets transferred by the owner and which is in the operational administration shall be applicable other the (imposition) application of imposition on the income received from the business activities and on the assets acquired at the expense of that income.
3. An institution and a public enterprise shall be responsible in respect of their liabilities with the assets and monetary resources which are at their disposal. When the monetary resources of an institution (a public enterprise) are in sufficient the responsibility in respect of their liability shall be borne by the owner of an institution (a public enterprise).
Article 208. The transfer of the right to own on to the property complex of an institution
When the right to own, its transferred by an institution of in respect of an institution is transferred to any other person that institution shall retain the right to operational management in respect of the assets that belong to it.
Article 209. The concept and basis for the emergence of common property
1. Assets which are in the ownership of two or more persons shall belong to them under the right of joint ownership.
2. Assets may be in a joint ownership with the determination of the share of each of the owners in the right to own (shared ownership) or without the determination of such shares (common property).
3. Joint ownership in respect of any assets shall be shared except for the cases where the law provides the formation of common (joint) ownership in respect of any assets.
4. Joint ownership shall emerge when two or several types of assets which way not be divided without changing its designation (indivisible things) or are not subject to division by virtue of law come into the ownership of two several persons Joint ownership in respect of indivisible assets shall emerge in the cases which are provided in the legislative acts.
5. By the agreement of the participants and common property and in failure to reach the agreement upon the decision of the court in respect of joint assets there may be established shared ownership of their persons.
Article 210. Determining the shares in the right to shared property
1. Where the sizes of the shares of participants of shared property way not be established on the basis of the legislative acts or established by the agreements or participants the shares shall be deemed to be equal.
2. An agreement by an the participants in shared property may establish the procedure for determining or changing their shares in relation to the contributions of each of them into the formation and the increase of the joint property.
Article 211. The right of a participants in shared property which are associated with its improvement
1. A participant of shared property which carries out at his own expense in compliance with the established procedure for the use of joint assets his inseparable improvements shall the right to appropriate increase of his share in the right to the joint assets.
2. The divisible improvements is the joint property unless otherwise in provided in the agreements of the participants of the joint property shall become the ownership of the one of the participants who make them.
Article 212. Disposal of the assets which are in the shared ownership
1. In Disposal of the assets which are in the shared property shall be carried out by the agreement with the consent of all its participants.
2. Each participants of shared ownership shall have the right at his discretion to sell giver - the gift be quiz pledge his share or dispose of it in any other way in compliance with the conditions provided in Article 216 of the present Code.
Article 213. Ownership and use of the assets which are in the shared ownership
1. Possessing and using the assets which are in the shared. ownership shall be carried out with the consent of all its participants and in the case of a failure to reach the agreement in accordance with the procedure established by the Code.
2. Each participant of the shared property shall have the right to be granted for his ownership, for his possession and use of part of joint property which is equal to his share and where it is impossible shall have the right (to demand) to claim from any other participants which own use the assets to of appropriate compensation which is due in accordance with his share.
Article 214. The fruit, product and income from the use of the assets which are in shared ownership
Fruits, production and income from the use of the assets which are in the shared ownership shall become joint property (part of joint property). The subsequent distribution of the fruits. products and income shall be carried out between the participants of the shared ownership equal to their shares unless otherwise is provided in the agreement between them.
Article 215. Expenditures associated with the maintenance of the assets which are in shared ownership
Each participant of the shared ownership shall be obliged in proportion to his share to participate in the payment of taxes. levies and any other payments in respect of their joint assets in also in the casts of its maintenance and preservation.
Article 216. The preemptive right
1. When selling a share in the right to joint property outside person the other participants of the shared ownership shall have the preemptive right to purchase the share which is being sold at the price at which it is being sold and on other equal conditions except for the case the sale of public option. Public options for selling share in the right to joint property in the case where the consent for all the participants of a joint property do no exist may be carried out in the cases provided in part III Article 222 of the present Code and in any other cases provided in legislative acts.
2. The seller of a share shall be obliged to notify in writing or the other participants of the shared ownership concerning the intention to sell his share to an outside party with indication of the price and any other conditions on which he is selling it.
If any other participants of the joint ownership refuse to any or do not purchase the share which is sold in the right to own any immovable assets during one month and in respect of an), other assets within 10 days from the date of the notice the seller shall have the right to sell his share to any other person.
3. When selling a share with a violation of a preemptive right of purchase any other participants of the shared ownership shall have the right within 3 days to require through the court of the transferred to him or the rights or obligations of the buyer.
4. The assignment of the preemptive right to purchase a share shall not be permissible.
5. The rules of this Article shall apply also in the cases of a share in accordance with the exchange agreement.
Article 217. The moment of the transfer of a share in the right to joint ownership to the buyer in accordance with the agreement
The share in the right to joint ownership shall be transferred to the acquires in accordance with the agreement from the moment of concluding agreement unless the agreement of the party provides otherwise. The moment of the transfer of the share in the right to joint property in accordance with the agreement which is subject to the state registration or notary certification shall be established in accordance with paragraph 2 of Article 213 of the present Code.
Article 218. The division of property which is in shared ownership and appropriation of a share out of it
1. The assets which are in the shared ownership may be divided between its participants by the agreement between themselves.
2. The participants of joint ownership shall have the right to claim the appropriation of his share out of the joint property.
3. Where a participants of a shared assets fail to reach the agreement concerning the methods and conditions of dividing the joint assets or appropriation of a share of one of them out it the participants of the joint ownership shall have the right to claim the appropriation in kind of this share out of the joint assts. Where the appropriation of a share in kind is not permissible by law or possible without unreasonable damage to the assets which is in joint ownership the owner which is departing shall have the fight to be paid the value of his share by other participants of the joint property.
4. If the property which is appropriated in kind the participant of the shared ownership on the basis of this Article is not equal to his share in the right to own shall be liquidated by means of paying to him of an appropriate monetary amount or any other compensation. The payment to a participant- of joint ownership by any other owners of the compensation instead of appropriation of this share in kind shall be permissible with his consent in the cases where the share of relevant owner is insignificant can not be realistically appropriated and he does not have any substantial interest in the use of the joint assets the may even in the case of back of ownership to pay him a compensation.
5. With a receipt a compensation in accordance with paragraph 3 and 4 of this Article the owner shall lose the right to the share in the joint property.
6. Where the inexpedience of the division of the common property or the appropriation of a share out of it in accordance with the rules outlined in paragraphs 3 to 5 of this Article are obvious the court shall have the right to adopt the decision to sell the property through a public auction with the subsequent distribution of the received amount between the participants of the common ownership commensurate to their shares.
Article 219. Joint common property
The joint common property shall exist in the following forms:
joint property of spouses;
joint property of peasants (farmers), form;
joint ownership of privatized housing (apartment).
The legislative acts may provide any other types of joint common property. Joint common ownership shall be established and exist of the agreement between its participants does not provide otherwise.
Article 220. Possessing, using and disposing of the assets which are in the joint ownership
1. The participants of common ownership unless otherwise is provided in agreement by themselves shall collectively possess and use joint common property.
2. The disposal of the assets which are in the common ownership shall be exercised with the consent of all the participants which resumed independently from the one who of the participant committed the transaction in respect of disposing of the asset.
3. Each of the participants of common ownership shall have the right to commit transactions in respect of disposing of common assets unless otherwise is provided in the agreement of all the participants.
A transaction which is committed by one of the participants of common ownership which is related to the disposal of common assets may be recognized as invalid by demand of the other participants in accordance with the motifs the back in the participants who committed the transaction of the necessary authorities only in the case where it is proved that the other party in the transaction knew or deliberately must have known of it.
4. Paragraph 1, 2, 3 of this Article shall be applicable unless otherwise is provided by the present Code or any other legislative acts in respect of certain types of common property..
Article 221. Division of assets which are in common ownership and appropriation of a share out of it
1. The division of common assets between the participants in joint ownership and also the appropriation of the share of each of the participants in the right to common property.
2. When dividing common assets or appropriating a share out of them unless otherwise is provided in the law or agreement by the participants their shares shall be recognized as equal.
3. The basis and the procedure for the division of joint assets and appropriation out of it of a share may be determined in accordance with the rules of Article 218 of the present Code so long unless otherwise is provided by the present Code certain types of common property or by any other legislative acts and does not follow from the essence or relations of the participants in common property.
Article 222. Imposition of a claim on a share in joint property
A credit of a participant in common or joint property in the case of insufficiency of the latter assets shall have the right to impose a claim to be appropriated the share on the data in the joint property for the imposition of a penalty upon it.
Where is such cases the appropriation of a share in kind is impossible or other participants object to it other participants in the shared or common property object to it, the creditor shall have the right to require the sale by the debtor of his share to other participants of the joint property at the price which is commensurate with the market value of that share with the imposition with the use of the resources from the sale to repay the det.
In the cases of a rejection of other participants of joint ownership of the acquisition of the share of the debtor the creditor shall have the right to demand through court of the imposition of the penalty upon the share of the debtor in the right to joint property by way of selling that share through public auction.
Article 223. Joint property of spouses
1. Assets which are accumulated by the spouses during their marriage shall be the common property unless in agreement between themselves provides that those assets are joint property of the spouses or belong to one or an relevant parts to each of the spouses in accordance with the right to own.
2. Assets which belong to spouses prior to entering the marriage and also those received during the marriage as gift or in the course of inheritance shall be property of each of them.
3. The items of individual use (clothes, footwear etc.) except for jewelry and any other items of luxury or both acquired during the marriage at the expense of common resources of the spouses shall be recognized as properties of that a spouse who used them. The property of each of the spouses may be recognized the joint property if it is established that during their marriage investments have been made at the expense of the joint assets of the spouses which significantly increase the value of that property (capital repairs, reconstruction, restructuring, reequipment, etc.).
4. In respect of the obligations of one of the spouses a penalty may be imposed only on the assets which are in his ownership and also upon the share in the joint assets of the spouses which would be due to him should that property be divided.
5. The special considerations in the eight to joint common property of spouses shall be determined in the legislation concerning the marriage and family of the Republic of Kazakstan.
Article 224. Ownership of a peasant (farmers) farm
1. The assets of peasants (farmers) farm shall belong to its members in accordance with the right to common property so long as the agreements between themselves do not provide otherwise.
2. In the joint ownership of the members of peasants (farmers) farm there shall be plantations on a piece of land, business and any other structures, melioration and any other installations productive and working cattle, poultry, agricultural and any other machinery and equipment vehicles, implements and any other assets which are acquired for the economy at the expense of the joint resources of its members.
3. The fruit, production, income received as a result of the activities of peasants (farmers) farm, shall be joint property of the members of the peasants (farmers) farm and they shall be used by agreement between themselves.
Article 225. Division of the property of peasants (farmers) farm
1. When terminating the peasants (farmers) business in relation to the departure there from of all its members or an any other grounds the joint assets shall be subject to division in accordance with the rule provided in Article 280 and 221 of the present Code.
2. The means of production which belong to the peasants (farmers) business in the case of the exit of one of its members from the business shall not be subject to division. The person who departs from the business shall have the right to be paid a monetary compensation which is commensurate with his share in the joint property in the joint ownership to that property.
3. In the cases provided in paragraph I and 2 of this Article the shares of the members of peasants (farmers) business and their right to join ownership in respect of the assets of the business shall be recognized as equal if the agreement between themselves does not provide otherwise.
Article 226. Property of peasants (farmers) business created in the form of a business partnership or cooperative
1. Members of the peasants (farmers) business based on the assets of the business may create a business partnership or the productive cooperative such peasants (farmers) business as a legal entity shall have the right to own the assets which are transferred to it in the form of the contribution and any other contributions by the members of the farmers business and also in respect of the assets which are received in the course of its activities and acquired or any other grounds permissible by law.
2. The amounts of contributions of the members of the peasants (farmers) business who are participants of a partnership or members of a cooperative shall be established on the basis of the shares in the right to 'joint property in respect of the assets of the farmers (peasants) business which are determined in accordance with the procedure provided in paragraph 3 of Article 225 of the present Code.
Article 227. Joint ownership of privatized housing premises (apartment)
An apartment purchased or acquired free of charge by the tenant in accordance with the legislation concerning privatization the residential premises (apartments) in a building of the state housing stock shall be transferred to common ownership of the tenant and his family members who reside permanently ,with him including those juniors and temporary absent unless otherwise is provided in an agreement between themselves. The special considerations in respect of the right to common ownership of privatized residential premises shall be determined by the housing code of the Republic of Kazakstan.
Chapter 12. Collaboration Agreement (general partnership)
Article 228. General partnership
1. A general partnership shall be formed on the basis of the agreement or the collaboration agreement in respect of business activities (concerning the agreement) in accordance with the agreement concerning joint activities (the agreement of a simple) partnership a party shall be obliged to jointly act for the of common business goals. A general partnership shall not be a legal entity.
2. The agreement concerning joint activities (the agreement of a general partnership) shall be concluded by the citizens and legal entities (consortium).
3. The obligations of the participants of a general partnership which are associated with the agreement concerning joint business activities in respect of third parties shall be joint unless the agreement concerning the joint activities provides otherwise.
Article 229. Conduct of total deals of the participants of an agreement
Maintaining the joint affairs of the participants of an agreement concerning joint activities shall be carried out in accordance with the common consent in accordance with the agreement the may delegate the management of joint activities to the authority and the managing of common affairs to one of the participants who in that case acts on the basis of a power of attorney which is issued to him by the other participants of the agreement.
Article 230. Common assets of the participants to an agreement
1. To reach their goals the participants of an agreement concerning joint activities shall make contributions is money is any other assets or by way of a labor contribution.
2. The monetary or any other property contributions of the participants of an agreement and also the assets which are created or acquired a result of their joint activities shall be the joint shared property.
3. The participants of an agreement shall not have the right to dispose their share in the joint property without the consent of the other participant of an agreement concerning the joint activities.
4. The property of the participants of an agreement shall be subject to the norms herein on the joint shared property.
Article 231. Common expenditures and losses of the participants to an agreement
The procedure for covering expenditures associated with the joint business activity and losses which are possible as a result thereof shall be determined in agreement) by the agreement of the participants. Where the agreement does not provide such a procedure the joint expenditures and losses shall be covered at the expense of the common assets of the participants of the agreement and the meeting amounts shall be spread between themselves in proportion to their shares in that property.
Article 232. Conveyance of rights and the refusal to participate in joint activity
1. The conveyance of the right to participate in joint activities may be carried out only with the consent of the participants of an agreement concerning joint activities.
2. A participant of an agreement t6 joint activities (general partnership agreement) shall have the right in accordance at his discretion to refuse from the participation in joint activities.
3. Losses which are inflicted by the rejection from the participation in a joint activity shall be paid in full volume unless the agreement concerning the joint activities (general partnership agreement) provides otherwise.
Article 233. Consortium
1. A consortium shall be a temporary voluntary equal union (association on the basis of an agreement concerning joint business activities in which the legal entity unites certain resources and coordinate the efforts to solve specific business issues).
2. The participants of the consortium shall retain their business independence and may take part in the activities of any other consortium or associations.
Relations between the members of a consortium shall be built on a contractual basis.
3. Managing a consortium shall be carried out by the central apparatus or a council of directors.
4. The participants of a consortium shall bear joint responsibility in respect of the obligations related to the activities of the consortium unless otherwise provided in the foundation documents.
5. A consortium shall terminate its activities after the fulfillment of the task or in accordance with the resolution of its participants.
Article 234. The rules concerning certain types of business activities
Certain types of business activities shall be regulated in accordance with the present Code by the legislation of the Republic of Kazakstan.
Chapter 13. The Acquisition of the Right
to Own and Any Other Rights in Rem
Article 235. The basis for the acquisition of ownership
1. The right to own a new thing shall belong to the person who manufactured or created it unless otherwise provide in an agreement or legislation.
The right to own fruit, production, income received as a result of the use of the assets shall be acquired in accordance with article 123 hereof.
2. The right to own the assets which have an owner may be acquired by any other person on the basis of the purchase and sell agreement, exchange agreement, right agreement or any other transaction of the alienation of that property.
In the case of the death of a citizen, the right to own the assets which belong to him shall be transferred in the procedure of inheritance to any other person in accordance with the will or the law.
In the case of reorganizing a legal entity the right to own assets which belong to it shall be transferred to the legal entities which are legal successors of the reorganized legal entity (Article 46).
The alienation of the assets of an owner to any other person outside of the will of the owner shall not be permitted except for the cases provided in the legislative acts.
3. In the events and following the procedure provided hereby, a person may acquire the right to own assets which do not have any owner the assets the owner whereof is unknown or the assets the owner whereof refused or lost the right to own in accordance with any other grounds.
4. Members of housing, housing constructions, dacha, garage and any other consumer cooperative any other persons who have the right to accumulate shares who fully paid the contribution for the apartment, dacha, garage or any other premises granted to those persons, by the cooperative for use shall acquire the right to own the indicated assets.
Article 236. The emergence of ownership in newly created immovable assets
1. The right to own the buildings under construction. Installations or any other property, complexes and also any other newly created immovable assets shall arise from the moment of the completion of the creation of those assets.
2. Where the legislative acts or agreements provide the acceptance of the finished items of construction then creation of the relevant property shall be accomplished from the moment of such an acceptance.
3.In the cases where immovable assets are subject to the state registration a right to own them shall arise from the moment of such registration.
4. Prior to the accomplishment or creation of immovable assets and in the relevant cases of its state registration to that property the rules shall be applied concerning the right to own the materials or any other assets of which the immovable assets was created.
Article 237. Conversion (reprocessing)
1. Unless otherwise provided in the agreement the right to own a new movable asset manufactured by the person by way of reprocessing the material which did not belong to him shall be acquired by the owner of the material.
If the cast of reprocessing is significantly exceeds the cast of the material the right to own a new item shall be acquired by the - person who fairly honestly implemented the processing for himself.
2. Unless otherwise provided by the agreement, the owner of the material who acquired the right to own the item manufactured thereof shall be obliged to compensate the cost of reprocessing to the person who carried that out and in the case of tire acquisition of the right to own the new item-n by that person the latter respectively must compensate the owner of the materials the value.
3. The owner of the materials who lost them as a result of unfair improper actions of the person who carried out the processing shall have the right to claim the transfer of new item to his ownership and reimbursement of the losses inflicted upon him.
Article 238. Time of the emergence of ownership with the acquirer by agreement
1. The right to own shall arise with the acquirer of the asset in accordance with the agreement from the moment of the conveyance of the item unless otherwise provide in t e legislative acts or agreement.
2. Where the agreement concerning the alienation of assets is subject to state registration or notary certification the right to own shall emerge with the acquirer from the moment or registration or notary certificate and where it is necessary, of both notary certificate and the state registration of the agreement from the moment of its registration.
Article 239. Conveyance of belongings
1. The conveyance shall be recognized to mean the hauling out of things to the acquirer and equally a submission to a transport organization for the dispatch to the acquirer and the submission to the post for the conveyance to the acquirer of things alienated without the obligation of unless otherwise provided in the legislation or agreement.
2. Where of the moment of the conclusion of an agreement concerning the alienation of an item it is already in the possession of the acquirer the thing shall be recognized transferred to him from that moment. The transfer of the consignment or any other managerial documents in respects of items shall be equated to the transferee of things.
Article 240. Acquisitive prescription (adverse possession)
1. A citizen or a legal entity which is not the owner of the assets but properly, openly and continuously possessing during fifteen years as his own immovable assets or any other assets for not less than five years shall acquire the right to own those assets (acquisitive prescription).
The right to own immovable and any other assets which are subject to the state registration shall arise with the person who acquire that property by virtue of the acquisition length from the moment of such registration.
2. Prior to the acquisition of the right of the ownership in respect of the assets a citizen or a legal entity which has it hold it as their own shall have the right to protect their ownership against third persons who are not the owners of the assets and also w o do not have the right to own it by virtue of any other ground which is stipulating in the legislative acts or an agreement.
3. A citizen or a legal entity which refer to the prescription to the long-term ownership may adjoin to the ownership all the time during which he owned that thing whose legal successors they are.
4. The course of the right of the prescription term in respect of the assets which are with the person from the possession of whom it might have been claimed in accordance with articles 260 and 263, 265 of the present Code shall begin not earlier than the expiration of the term of the statute of limitation in respect of the relevant claims.
5. In the case where an owner is refused by the court of his right to own the person who possess the property shall become the owner thereof.
Article 241. Conversion into property of things commonly available for collection or extraction
Turning into property of the items which are generally available or generally accessible for collection in the cases where in accordance with the legislation the local tradition or the general permission which is granted by the owner in forests, bodies of water or in any other territories it is permissible to collect berries, catch fish, hunt animal, collect or extract any other objects the right to own the relevant items shall be acquired by the person who carried out their collection or the extraction.
Article 242. Property in abeyance
1. Property is abeyance is property which has no owner or whose owner is unknown or the property the right to own which was rejected by the owner.
2. Unless excluded by the rules for the acquisition of the right to own the items from which refused by the owner (Article 243) findings (Article 245) an attendant animals (Article 246) and hoard (Article 247) the right to own unowned movable items may be acquired by virtue of the prescription term (Article 240).
3. The property in abeyance shall be registered for accounting by the body which carries out the state registration of immovable assets in accordance with the application of the local executive body in whose territory they were identified. Upon expiration of a year from the date of registering an ownerless immovable item registration by the body which is authorized to manage the communal property may appeal to the court with e requirement to recognize that item as the one received by communal property.
An ownerless immovable item which is not recognized in accordance with the decision of the court as received by the communal property may be again adopted into ownership, use and disposal by the owner who left it or acquired into the ownership by the virtue of the prescription term Article 240.
Article 243. Movable items rejected by the owner
The movable items which were left be hind or thrown away by the owner for the purpose of rejecting the right to own them (Article 250) may be turned into the ownership of any other person in accordance with the procedure provided in paragraph 2 of this article.
Article 244. Unauthorized construction
1. The unauthorized construction shall be recognized to be a residential house or any other structure installation or any other immovable asset which is created on a land plot which was not allocated for those purposes in accordance with the procedure provided in the legislation and also the one which is created without the receipt of the permissions which are required thereof.
2. A person who committed an authorized construction shall not acquire the right of ownership in respect thereof. That person shall not have the right to dispose of the structure, to sell, transfer as a gift, lease or commit any other transactions. The unauthorized construction shall be subject to devaluation by the person who performed it or at his expense except for the cases stipulating in paragraph 3 of this article.
3. The right to own in respect of an unauthorized structure construction may be recognized by the court as belonging to the person who carried out the construction on a land plot which did not belong to him under the condition that land plots in accordance with the established procedure granted that person for the deployment of the erected structure.
The right to own the unauthorized structure may be recognized by the court also as belonging to the person in whose permanent use the land plot is where the construction took place. In that case the person who is recognized to own the structure shall reimburse to the person-that committed it the expenditure which is associated with the construction in the amount determined by the court.
The right to own an unauthorized structure may not be recognized as belonging to the indicated person where the preservation-of the structure entails destruction of the right violation of the rights and legally protected interests of any other persons or creates threat to life and health to citizens.
4. In exceptional circumstances and if advisable from the social and economic view, the unauthorized structure may be transferred into the communal ownership after refunding construction expenses in the amount determined by court.
Article 245. Finding
1. A person who found a lost item must immediately notify of that a person who lost it or the owner of the item or anyone of other persons known to him who have the right to get it and to return to him that found item.
If an item is found in the premises or in the transport, it shall be subject to submission to the person who represents the owner of that premises or transport. In that case the owner shall acquire the right and he shall bear the responsibility of the person who found the item.
2. If a person who has the right to receive the found item or his place of location is unknown the person who found the item shall be obliged to declare his finding to the militia or the local executive body.
3. The person who found a thing shall have the right to keep with himself or leave it for the storage to militia the local executive body or to a person indicated by them. Perishable things or a thing the expenses associated with the storage thereof are not commensurate with its value may be sold by the person who found it with the receipt or written proves certifying the amount of receipt. Money received from the sale of the found thing shall be subject to storage and repayment to the person who has the right to receive the thing or transfer to the ownership of other persons in accordance with the procedure and on the conditions established for the thing itself.
The person who found a thing shall be liable for its loss or destruction only in the case of his intentions or growth carelessness within the limits of the value of the thing.
4. Where upon expiration of six months from the moment of the application of' finding to militia or the local executive body the person who has the right to receive the lost thing is not identified and does not declare his right in respect of the thing to the person who found it or to militia or to the local executive body the person who found the thing shall acquire the right to own it. If the person who found a thing into his ownership it shall be transferred to the ownership of the community.
5. The person who found and returned a thing to the person who got the right to obtain it shall have the right to receive from that person and in the case of transfer of the thing to the communal property from the relevant-local executive body the compensation of expenditures necessary and associated with the storage, submission, sale of the thing and the expenditures associated with the identifying the person who is authorized to receive the thing.
6. A person who found a thing shall have the right to receive award from the person who is authorized to receive the thing in the amount of thirty percent of the value of the thing. If the found thing represents a value only for the person who is authorized to receive it then the amount of the award shall be determined in accordance with the appraisal carried out by the parties. The right to award shall not arise if the person who found the thing did not execute his duty to declare the finding or committed any other actions in order to conceal the finding.
Article 246. Unattended animals
1. The person who detains unattended cattle and other domestic or tame animals shall be obliged to return them to the ownerand if he or his location are unknown not later than in three days from-n the moment of such detention to declare of the found animals to militia or the local executive body which shall adopt measures to find the owner.
For the period of searching the owners of the animals, they may be kept by the person who detained them for his maintenance and use or turned in by him for the maintenance and use to any other person who has sufficient conditions for that. Upon request of the person who detained animals, finding of the person who has necessary conditions for the maintenance and use and conveyance to them of the animals shall be carried out by militia or the local executive body.
2. The person who detains the animals and the person to whom they are transferred for maintenance and use shall be responsible for death and damage to the animals only to the amount of guilt and within the value of those animals.
3. If during six months from the moment of the declaration of finding working or large cattle and two months for any other domestic animals their owner is not found and does not (apply) declare of his right to them the right of ownership of those animals shall be transferred the person with whom they stayed, maintained for the maintenance and use.
In the case of refusal of that person to acquire for the ownership of the animals maintained with him they shall be come to communal property and use in accordance with the procedure determined by the relevant local executive body.
4. In the case of return of the animals and the person with whom they staved for the maintenance and for the use shall have the right to receive from that -owner compensation c-if the expenditures associated with the maintenance of the animals with the inclusion of the benefits taking into account the benefits extracted from the use thereof.
5. The person who detained unattended cattle and any other animals or domestic tame animals shall have the right to demand from their owner the payment (of the award) of the reward in accordance with paragraph five of article 245 hereof.
6. In the case of the former owner of the animals arrival after the transfer to the ownership of any other person the owner shall have the right in the case where the circumstances are present which witness of devotion in respect from the part of those animals or of cruel or any other improper treatment with them of the new owner to require their return to him under conditions to be established by agreement with the new owner and it they fail to agree through the court.
Article 247. Hoard
1. A hoard that is hidden in the earth or concealed by any other method money or any other valuables the owner whereof may not be identified or by virtue of legislation lost the right to them shall be come the property and equal shares of the owner of the land plot or the owner of the immovable (asset) item in which the hoard was hidden and the person who found the hoard unless the agreement between themselves does not establish otherwise.
In the case of finding a hoard by a person who conducted excavations or research for valuables without consent for that of the user of the land plot or the owner of the immovable property where the hoard was hidden the hoard shall be subject to transfer to that owner.
2. In the case of finding a hoard which contains things which are referred to memorials of the history and culture they shall be subject to be transferred to the ownership of the Republic of Kazakstan. In that respect the user of the land plot or the owner of the immovable property in which such hoard has found and the person who found the hoard shall have the right to receive a reward in the amount of fifty percent of value of that hoard the remuneration shall be distributed between those persons. In accordance with the rules provided in paragraph one if this article.
Article 248. Acquisition of the property confiscated from an owner
If a person in accordance with the procedure and under conditions provided in the legislative acts as acquired property confiscated from the owner on a legal basis that person shall acquire the right to own the property.
Chapter 14. Termination of the Right
to Own and any Other Rights in Rem
Article 249. Basis for termination of ownership
1. The right to own shall terminate in the alienation by the owner of his property to any other persons the refusal of the owner from the right to own the death or destruction of (asset) properties and loosing of the right to own the assets in any other cases provided by the legislative acts.
2. Confiscation from an owner of his assets shall not be permitted except for the following cases:
1) Claim imposed on the assets based on the liability of the owner.
2) Compulsory alienation of assets which by virtue of the legislative acts may not belong to that person.
3) Requisition.
4) Confiscation.
5) Alienation of immovable assets in relation to the reservation of the land plot.
6) The purchase of ownerless cultural or historic valuables.
7) In any other cases provided hereby.
3. In the cases on the conditions and in accordance with the procedure provided by the legislative acts on privatization, the assets which are in the state of communal property shall be alienated into private property of individuals and legal entities.
4. In the case of the adoption of the law of the Republic of Kazakstan on transformation into the state ownership of private property of individuals and legal entities (nationalization), the losses shall be compensated to them following the procedure provided by article 266 hereof.
Article 250. The refusal of ownership
An individual or a legal entity may wave the right to own the assets which belong to him having declared that or committing any other actions which definitely prove his dismissal from ownership use and disposal of the assets without an intent to retain any other rights in respect of those assets.
Refusal from the right to own shall not result in termination of the rights and obligations of the owner in respect of the acquisition of the right to own that property by any other person.
Article 251. Execution of assets of an owner
1. The execution of assets in respect of the liability of an owner shall be carried out in judicial procedure unless otherwise provided by legislative acts or the agreement.
2. The right to own the assets being executed shall terminate with the owner from the date of emergence of the right of the ownership in respect of the confiscated assets from the person to whom the right to own transfers in accordance with the procedure provided in the legislation.
Article 252. Termination of ownership of a person to whom the assets may not belong under legislation
1. When on the bases which are allowed by the legislative acts, in the ownership of a person there are the assets which relay not belong to him by virtue of the legislative acts those assets must be alienated by the owner within one year from the moment of the emergence of the right to own that property, unless other deadlines are provided in the legislative acts.
In the case where the assets are not alienated by the owner within the indicated deadlines, they, in accordance with the decision of the court shall be subject to compulsory alienation with the compensation to the owner of the value of the assets, less the expenditures associated with their alienation.
2. When in the ownership of a citizen or a legal entity on the bases allowed by the legislative acts there is all treat for the acquisition whereof a special permission is required, and its issue to the owner is denied, that item shall be subject to alienation in accordance with the procedure which is established for the property which may not belong to that owner.
Article 253. Requisition
1. In the case of natural calamities, accidents, epidemics, episodes, and under any other circumstances which have an extraordinary nature, property may be requisitioned in the interests of the Company upon the resolution of bodies of the State Power and Administration from an owner in accordance with the procedure and under conditions which are established by the legislative acts with the payment to him of the value of the property (requisition).
2. The evaluation on the basis whereof the owner is reimbursed the value of the requisitioned property relay be challenged by him in judicial procedure.
3. A person whose assets are requisitioned shall have the right to claim through the court the return to him of remaining assets after the cessation of the effect of the circumstances in relation to which the requisition took place.
Article 254. Confiscation
In the cases ,which are provided in the legislative acts, assets may be confiscated without compensation from an owner in a judicial procedure in the form of a sanction for the commitment of a crime or any other violation of law (confiscation).
Article 255. Termination of the right to own immovables in relation to the reservation of land and of any other natural resources
1. The termination of the right to own immovables in relation to a resolution by a state body, which is not directly aimed at the confiscation of the property from the owner, including by the decision to reserve the land plot upon which a house or any structures, installations or plantations which belong to the owner are located, shall be allowed only in the cases in an accordance with procedure established by the legislative act with the granting to the owner of equally valuable assets and the reimbursement of ,any other losses incurred, or refund to him in full volume of the losses inflicted by the termination of the right to own.
2. In the case of a disagreement of the owner with the decision which entails the termination of the right to own, it may not be effected prior to the settlement of the dispute in a judicial procedure. When considering a dispute, all the issues associated with the reimbursement to the owner of the inflicted losses shall be also resolved.
3. The rules of this Article shall appropriately apply to the termination of the right to own immovable assets in relation to the resolution of a state body to reserve mining allotments, parts of the seabed and any other- plots on which assets are located.
Article 256. Redemption of ownerless cultural and historic valuables
In the cases where an owner of cultural and historic valuables which are referred in accordance with the legislation to especially valuable and protected by the State, carelessly keeps those valuables, which threatens the loss by them of their significance, such valuables upon the decision of the court relay be confiscated front the owner by the State by way of a buy-out or sale through a public auction.
In buying out cultural valuables, the owner shall be compensated their value in the in the amount established by agreement of the parties, and in the case of a dispute, - by the court. In selling through the auction, the amount received front the sale shall be transferred to the owner, less the expenditure on the conduct of the auction.
Article 257. The appraisal of the assets when terminating ownership
When terminating the right to own, assets shall be apprised on the basis of their market value.
Article 258. Termination of Rights in Rem belonging to a non-owner
Rights in rem which belong to a non-owner shall terminate in accordance with the rules established by Articles 249-257 hereof, as well as upon the decision of the owner in accordance with the procedure established by the legislative acts, by the charter of the legal entity or by agreement of the owner ,with the holder of the property.
Chapter 15. Protection of the Right to
Own and of Any Other Rights in Rem
Article 259. Recognition of ownership
The owner shall have the right to claim the recognition of the right to own.
Article 260. Return of property by owner of someone else's illegal possession
The owner shall have the right to seek the return of his property from somebody else's illegal possession.
Article 261. Claiming property from an honest acquirer
1. When assets are required free of any charge from a person who does not the right to alienate them, of which the acquirer had no knowledge and should not had the knowledge (an honest acquirer), then the owner shall have the right to claim that property from the acquirer only in the case where the assets are lost by the owner or the person to whom the assets were conveyed by the owner for possession or stolen from the former or the latter or went out of their possession in any other way outside their will.
2. If assets are acquired free of charge from a person who did not have the right to alienate them, the owner shall have the right to claim the assets in ally case.
3. Claiming assets on the bases which are indicated in part I of this Article shall not be allowed, provided the assets were sold in accordance with the procedure established for the execution of the court decisions.
Article 262. Limitation on the claims of money and securities
Money and also bearers' securities may not be claimed front an honest acquirer.
Article 263. Settlements in returning items from illegal possession
1. Claiming assets on the basis of Articles 260 and 261 of the present Code, the owner shall also have the right to claim from an unfair holder, the return, or reimbursement of all the income which he derived or should have derived during the entire time of possession; while from the honest holder, - of all the income which he derived or should have derived from the time when he learnt of the illegitimacy of his possession and received the subpoena related to the action of the owner to return the assets. An honest holder - in his turn shall have the right to claim from the owner reimbursement of the necessary costs incurred in relation to the assets from the time when income became due to the owner. An unfair holder shall have the right to obtain such a reimbursement entirely or in part only in the cases, where the claim of the owner is recanted by the court as substantial.
2. An illegitimate possessor shall have the right to retain the improvements made by him, where they may be separated without damaging the item. Where such separation of improvements is impossible, the honest holder- shall have the right to claim reimbursement of expenditures on improvement, but not greater than the amount of the increase of the value of the item. The illegitimate holder shall have such right.
Article 264. Protection of the right of the owner from the violations which are not related to the deprivation of ownership
An owner may claim the removal of any violation of his right, even though those violations are not related to deprivation of ownership.
Article 265. Protection of material rights of the person who is not an owner
The rights which are provided in Article 259 - 264 of the present Code shall also belong to the person who although is not the owner, but holds the property under the tight to business administration, operational management, permanent land use or on any other basis which is provided in the legislative acts or the agreement. That person slash have the right to protect his possessions from the owner, as well.
Article 266. Protection of the interests of the owner in terminating his rights for reasons provided in the law
In the case of adoption by the Republic of Kazakstan of legislative acts which terminate the right to own, the losses inflicted upon the owner as a result of the adoption of those acts shall be reimbursed to the owner in full volume by the Republic of Kazakstan.
Article 267. Invalidity of the acts of the bodies of authorities, administration and officials, which violate the rights of the owner and other material rights
1. Where as a result of issuing a normative or individual act which does not comply with the legislation, by a body of the state administration, local representative or executive body, or by an official person, the rights of an owner and of any other persons are violated in relation to possessing., using and disposing of the assets which belong to them, such an act shall be recognized as -invalid in a judicial procedure through the action of the owner or a person whose rights are violated.
2. When a court passes its decision on -a specific case, the acts of the bodies of the state administration and local representative or executive body, which contradict the legislative acts, shall not be applicable.
Any losses .which are inflicted upon an owner as a the result of the issue of the indicated acts shall be subject to reimbursement in full volume by the relevant body of power or administration front the resources of the relevant budget.
Subsection 1. General Provisions Concerning Obligations
Chapter 16. The Concept and the
Bases for the Emergence of Obligations
Article 268. The concept of an obligation
By virtue of an obligation, one person (a debtor) shall be obliged to commit for the benefit the other person (a creditor) certain actions, e.g. to transfer assets, perform work, pay money etc., or abstain, from certain actions and the creditor shall have the right to claim from the debtor the fulfillment of his obligation. The creditor shall be obliged to accept the fulfillment from the debtor.
Article 269. Parties to an obligation
1. Citizens, legal entities ,and the state may act as the parties in obligations, unless it is otherwise provided in legislative acts.
2. Several persons, may participate simultaneously in an obligation as either of the parties, creditor or- debtor. In those cases in accordance with the rules established by the present Code (Article 286 - 288) the obligation shall arise which is a shared, joint or subsidiary obligation.
Invalidity of the claims of a creditor- toward one of the persons who participate in an obligation on the side of the debtor, equally as the expiration of the term of the statute of limitations of the claim toward such a person, by itself share not affect the creditor's claims toward such other persons.
3. If by virtue of an obligation each of the parties bears a liability for the benefit of the other party, it shall be deemed to be a debtor of the other party in what it is to do for its benefit, and simultaneously, - its creditor in what it has the right to claim from it.
Article 270. Participants of an obligation
1. Participants of an obligation shall be the parties (debtor and creditor) and third persons.
2. The persons who are bound by obligations or any other legal relations with one of the parties of the obligation shall act as third parties.
3. Obligations shall not create duties for third parties. In the cases provided by the legislation or agreement of the parties, an obligation may give rise to the rights of third parties of respect of one or both parties of the obligation.
Article 271. The bases for the emergence of an obligation
An obligations emerge from an agreement, infliction of damage or on any other bases which are provided in Article 7 hereof.
Chapter 17. Fulfillment of an Obligation
Article 272. Proper fulfillment of obligations
Obligations must be fulfilled in a proper manner in accordance with the conditions of the obligation and requirements of the legislation and in where such conditions and requirements do not exist, - in accordance with the traditions of business practice or any other requirements, which are usually applicable.
Article 273. Unacceptability of the unilateral refusal to fulfill an obligation
A unilateral refusal from the fulfillment of an obligation and a unilateral alteration of its conditions shall not be acceptable, except for the cases provided by the legislation of agreement.
Article 274. Fulfillment of an obligation in part
A creditor- shall have the right not to accept the fulfillment of an obligation by part, unless it is otherwise provided in the conditions of the obligation, the legislation or follows from the traditions of the business practice or the essence of the obligation.
Article 275. The fulfillment of an obligation to a proper person
Unless otherwise provided by an agreement of the parties or follows from the tradition of business turnover, or the essence of the obligation, when an obligation is fulfilled the debtor shall have the right to claim the proof that the fulfillment is accepted by the creditor himself or by a person authorized therefore and he shall bear the risk of the consequences of a failure to present such a claim.
Article 276. The fulfillment of obligations by a third party
1. The fulfillment of an obligation may, be delegated, entirely or in part, to a third party, provided it is provided in the legislation or the agreement, and also where the third party is related to one of the parties through an appropriate agreement.
2. When the obligation of a debtor to fulfill an obligation personally does not follow from the legislation, conditions of the obligation or from the essence, the creditor shall be obliged to accept the fulfillment presented for the debtor by a third party.
3. The third party which is under the threat to lose its right to the property of a debtor (the right to use, own, pledge etc.) as a result of the imposition by the creditor of a claim upon that property, may at its expense satisfy the claim of the creditor without the consent of the debtor. In that case the rights of the creditor in the obligation shall be transferred to the third party, and the rules of the present Code concerning the assignment of a claim (Article 339-347 of the present Code) shall apply.
Article 277. The term for fulfillment of an obligation
1. When an obligation provides or allow, to identify the date of its fulfillment or a period of time during which it must be fulfilled, the obligation shall be subject to fulfillment on that date or appropriately at any moment within that period.
2. In the cases where the obligation does not provide the date for its fulfillment and does not contain any condition which allow to identify that date, it must be fulfilled within a reasonable period after the emergence of the obligation.
An obligation which is not fulfilled within a reasonable term, and equally an obligation the term for the fulfillment whereof is identified as the moment of the claim, must be fulfilled by the debtor within seven days from the date of the presentation by the creditor of the claim of its fulfillment, unless the duty to fulfill by any other date follows from the legislation, the conditions of the obligation, traditions of business practice or the essence of the obligation.
Article 278. The requirement of an even fulfillment of an obligation
The obligations which are calculated for a long term of performance, must be fulfilled evenly within reasonable for such types of obligations periods (a day, ten days, a week, a month, a quarter, etc.), unless it is otherwise provided in legislation, or the conditions of the obligation, or follows from the essence of the obligation, or the traditions of business practice.
Article 279. Prior fulfillment of an obligation
1. A debtor shall have the right to fulfill an obligation prior to the deadline, unless it is otherwise provided in legislation or the conditions of the obligation or follows from its essence.
2. The prior fulfillment of obligations related to entrepreneurial activities shall be allowed only in the cases where the possibility of the fulfillment of the obligation prior to the deadline is provided in the legislation or conditions of the obligation or follows from the tradition of business turnover or the essence of the obligation.
Article 280. Information on the course of fulfillment of an obligation
The legislation or conditions of an obligation may provide the duty of the debtor to report upon the course of fulfillment of an obligation.
Article 281. The place of the fulfillment of an obligation
If the place of the fulfillment is not determined by the legislation or the conditions of the obligation and it does not clearly follow from the essence of the obligation or traditions of business practice, the fulfillment must be carried out as follows:
1) under the obligation to transfer- immovable property, - in the place of the location of the property;
2) under the obligation to transfer goods or any other properties with the use of transport, - in the place of the transfer of the assets to the first carrier for its delivery to the creditor;
3) under any other obligations of an entrepreneur to goods or any other assets, - in the place of the- manufacture or storage of the assets, provided that lace is known to the creditor at the moment of the emergence of the obligation;
4) under a pecuniary obligation, - in the place of residence of the creditor at the moment of the emergence of the obligation, and where the creditor is a legal entity, - in the place of its location at the moment of the emergence of the obligation, where the creditor by the time of the fulfillment of the obligation changed the place of his residence or the place of its location and notified the debtor thereof, - at the principal place of residence or location of the creditor with referring to his expense of all the costs with the change, of the place of the fulfillment;
5) under any other obligation, - in the place of residence of the debtor, and if the debtor is a legal entity at the place of its location.
Article 282. Pecuniary obligations
1. Pecuniary obligations in the territory of the Republic of Kazakstan must be expressed in the tenge (Article 127 of the present Code).
The use of foreign currency, and also of payment documents in foreign currency when carrying out payments on obligations in the territory of the Republic of Kazakstan, shall be allowed in the cases and under the conditions provided by the legislative acts of the Republic of Kazakstan or in accordance with the procedure established thereby. In a pecuniary obligation there may be provided that it shall be subject to payment in the tenge in the amount which is equivalent to a certain amount in a foreign currency. In that case, the tenge amount which is subject to payment shall be determined in accordance with the exchange rate of the Kazakstan Interbank Currency Exchange which is established for the relevant foreign currency on the date of the payment and in the place of the payment or in the place nearest to it, unless any other rate or any other dates of its determination are established by the legislation or the agreement of the parties.
2. The amount of a payment made which is insufficient for the fulfillment of a pecuniary obligation, unless it is otherwise agreed by the parties, shall first of all repay the costs of the creditor in respect of the receipt of the fulfillment and then, - the interest, and the remaining part in respect of the principal amount of debt.
3. In long retire of obligations, there may be provided indexation of payments on the conditions provided by the parties.
Article 283. Increase of the amounts which are payable for the maintenance of a citizen
With an official increase of the minimum monthly wage, the amounts which are payable on a monetary obligation directly on the maintenance of a citizen (the compensation for harm done to life or health, in accordance with the agreement of life-long support, etc.), shall be increased proportionally.
Article 284. Fulfillment of reciprocal liabilities
1. Reciprocal liabilities must be fulfilled by the parties simultaneously, unless it otherwise follows from legislation, traditions of the business practice, conditions of the obligation or its essence.
2. Non-fulfillment or improper fulfillment by one of the parties of an obligation shall free the other party from the fulfillment of its mutual obligations and from satisfying counter-claims of the fulfillment of the duties, unless the legislative ,acts, or the conditions of the obligation provide otherwise.
Article 285. Fulfillment of an alternative obligation
A debtor who is obliged to make one of two things or several actions shall have the right to select. unless the legislation or conditions of the obligation provide otherwise.
Article 286. Fulfillment of an obligation in which several creditors or several debtors participate
When in an obligation there participate several creditors or several debtors (obligation with a number of persons), then either of the creditors shall have the right to claim the fulfillment and each of the debtors shall be obliged to fulfill the obligation in a share equal to others, unless it follows otherwise from the legislation or the conditions, of the obligation (shared obligation).
Article 287. The fulfillment of a joint obligation
1. An obligation with a number of persons, by virtue whereof each creditor has the right to claim, and each debtor is obliged to fulfill the obligation in full, shall be recognized a joint obligation.
A joint obligation or a joint claim shall arise if it is provided in the agreement or established by the legislative acts, in particular, where the subject of the obligation is indivisible.
2. The duties of several debtors in respect of in obligation associated with entrepreneurial activities, equally with the claims of several creditors in such all obligation shall be joint, unless the legislation or the conditions of the obligation provide otherwise.
3. In joint obligation of debtors the creditor shall have the right to claim the fulfillment both from all the debtors and from any one of them separately, in that respect, both in full and in the part of the debt. The creditor who does not receive complete satisfaction from one of the joint debtors shall have the right to claim the amount in default from the other joint debtors.
The joint debtors shall remain obliged until the obligation is fulfilled in full. The fulfillment of a joint obligation in full by one of the debtors shall free the other debtors from the fulfillment to creditor.
4. In a solidarity of the claims, any of the joint creditors shall have the right to present to the debtor the claim in full volume.
The fulfillment of all obligation in full to one of the solidary creditors shall exempt the debtor from the fulfillment to the other creditors.
5. In the case of a solidary obligation the debtor shall not have the right to make objections against the claims of the creditor which are based on such relations of the other debtors to the creditor in which that debtor does not participate.
In the case of a solidarity of the claims, the debtor shall not have the right to make obligations against the claims of one of the solidary creditors, which are based on such relations of the debtor to any other solidary creditor, in which that creditor does not participate.
Article 288. The fulfillment of a subsidiary obligation
The legislative acts or conditions of all obligation between a creditors and the debtors may provide that in the case of a failure by the principal debtor to satisfy the claim of the creditor to fulfill the obligation, that claim may be made to the other debtor (a subsidiary debtor) in as much as it concerns the unfulfilled part.
Article 289. Recourse
1. A debtor who fulfilled an obligation of another person, shall have the right of recourse to that person in the amount of the obligation fulfilled.
A debtor who does not fulfill an obligation as a result of the actions of a third party, shall have the right to claim compensation for the losses from that party.
2. A debtor who fulfilled a joint obligation shall have the right to return claim to each of the other debtors in equal shares less the share which is his own share.
The amount unpaid by one co-debtor to the debtor who fulfilled a solidary obligation shall equally fall on that debtor and on the other co-debtors.
The rules of this paragraph shall apply appropriately when terminating solidary obligations by reckoning counter claims of one of the debtors.
3. A joint creditor who receives a fulfillment from his debtor shall be obliged to recompense to the other creditors the shares which are due to them, unless it otherwise follows from relations between them.
Article 290. Certification of the fulfillment of an obligation
1. A creditor when accepting a fulfillment shall be obliged upon the claim of the debtor issue to him a receipt of receiving the fulfillment in full or in part.
When the debtor issues to the creditor a debt document to certify the obligation, then creditor accepting the fulfillment must return that document to the debtor. Where it is impossible to return he must indicate that in the receipt issued by himself.
The receipt may be substituted by the inscription on the debt document which is returned to the debtor.
2. The placement of the debt document with the debtor shall certify (unless the contrary is proven) the termination of the obligation.
3. In the case of the refusal by the creditor to issue the receipt about the fulfillment, to return the debt document or to indicated the impossibility of its return in the receipts the debtor shall have the right delay the fulfillment. In that case the creditor shall be deemed to be delaying.
Article 291. Fulfillment of obligations by placement of debt into deposit
1. When an obligation may not be executed by a debtor- as a result of the following, the debtor shall have the right to pay the money which are owed by him or securities into deposit at a notary office, and in the cases established by the legislative acts, into deposit at the court:
1) absence of the creditor or the person who is authorized by him to accept the fulfillment in the place where the obligation must be fulfilled;
2) incapacity of the creditor and no representative of his;
3) an obvious absence of certainty in respect of one who is the creditor on the obligation, and in particular, in relation to a dispute in that respect between the creditor and any other person;
4) evasion of the creditor from accepting the fulfillment, or other delinquency on his behalf.
2. The contribution of a sum of money or securities into deposit at a notary office or a court is deemed to be the fulfillment of the obligation.
The notary office or the court, into deposit whereof the money or securities are lodged, shall thereof notify the creditor.
Chapter 18. Securing the Fulfillment of Obligations
1. General Provisions
Article 292. Methods of securing the fulfillment of obligations
1. The fulfillment of obligations may be insured by forfeit, pledge, retention of assets of the debtor, warranty, guarantee, advance payments or any other methods which are provided in the legislation or agreement.
2. The invalidity of an agreement on securing an obligation shall not result in the invalidity of the oblation (the principal obligation).
3. The invalidity of the principal obligation shall result in the invalidity of the obligation which secures it.
Article 293. The concept of forfeit
The forfeit (fine, penalty) shall be recognized as a monetary amount defined by the law which must be paid by a debtor to his, creditor in the case of a failure to fulfill or of improper fulfillment of an obligation, in particular, in the case of a delay in the fulfillment. Upon the claim to pay the forfeit, the creditor shall not be obliged to prove losses inflicted on him.
Article 294. Form of a forfeit agreement
The agreement on forfeit must be committed in writing, irrespective of the form of the principal obligation. The failure to comply with the written form shall result in invalidity of the agreement concerning forfeit.
Article 295. Legal forfeit
1. A creditor shall have the right to claim the payment of forfeit which is determined by the legislation (legal forfeit), irrespective of whether the obligation of its payment is provided in the agreement of the parties.
2. The amount of the legal forfeit may be increased by agreement of the parties, provided the legislation does not prohibit it.
Article 296. Amount of forfeit
The amount of forfeit shall be determined in a fixed monetary amount or in a percentage of the amount in default or the amount of improperly fulfilled obligation.
Article 297. Reduction of the amount of forfeit
Where forfeit (fine, penalty) which is subject to payment is exorbitantly great as compared to the losses of the creditor, the court shall have the right to reduce the forfeit (fine, penalty), considering the degree of the fulfillment of the obligation by the debtor and the interests of debtor and creditor which are worth attention.
Article 298. The bases for recovering a forfeit
A forfeit shall be recovered for a failure to fulfill or for all improper fulfillment of an obligation, when the conditions are available for the subjection of the debtor to responsibility for violation of the obligation (Article 359 of the present Code).
Article 299. Concept of pledge
1. Pledge shall be recognized as such a method of ensuring the fulfillment of obligations, by virtue of which a creditor (pledgeholder) shall have the right in the case of a failure by the debtor to fulfill the obligation secured with the pledge, to receive the satisfaction from the value of the pledged assets, in a priority procedure before the other creditors or the person to whom those assets belong (pledgor), with the exceptions established by the legislative acts.
The pledgeholder shall have the right to receive on the same principles the satisfactions from the insurance compensation for the loss or damage to the pledged property, irrespective of for whose benefit it is insured, unless the loss or damage took place for reasons outside the control of the pledgeholder.
2. The pledge of enterprises, buildings, installations, apartments, rights to land plots and any other- immovable assets (mortgage) shall be regulated by the law of the Republic of Kazakstan Concerning Mortgage of Immovables. The general rules concerning pledge, which are contained in the present Code shall apply to mortgage in the cases where the law of the Republic of Kazakstan Concerning Mortgage does not provide any other rules.
Article 300. The bases for the emergence of pledge
1. Pledge shall arise by virtue of agreement. Pledge shall arise also on the- basis of the legislative acts at the advent of the circumstances indicated therein, provided the legislative acts provide what property and for securing of which obligations is recognized as held under pledge.
2. The rules of the present Code concerning pledge which arises by virtue of agreement, shall appropriately apply to pledge which arises on the basis of the legislative acts, unless the legislative acts provide otherwise.
Article 301. Pledgeable items
1. Any assets including objects and proprietary rights (claims), except for the objects which are reserved from the turnover (paragraph 2 of Article 116 of the present Code), the claims which are inseparably associated with the person of the creditor, in particular the claims of alimony, compensation for harm done to life or health, and other rights the assignment whereof to any other person is prohibited by the legislative acts, may be subject to pledge.
2. The right to pledge may be extended by agreement to the assets which win become property or received for business authority of the pledgor in the future.
3. Pledge of certain types of property, in particular the property of citizens, upon which it is prohibited to make claims, may be restricted or prohibited by the legislative acts.
4. Pecuniary resources which are subject of pledge, shall be deposited to a bank or a notary office.
5. Pledge of securities of joint stock companies (including banks), any other business entities, shall be carried out taking into account the legislation concerning securities.
Article 302. Claims which are secured by pledge
1. Unless it is otherwise provided by the agreement or the legislative acts, pledge shall secure a claim in the volume thereof which it has at the moment of the actual satisfaction (including interest, compensation of losses, incurred by the delay of the fulfillment, forfeit, fine, penalty), the necessary expenses associated with the maintenance of the pledged assets, and also the compensation of the costs associated with the withdrawal.
2. Pledge may be established in respect of the claims which win rise in the future, on the condition that the parties agree on the amount of such claims, which is secured by the pledge.
Article 303. Types of pledge
1. Mortgage shall be the type of pledge under which the pledged assets remain in the ownership and use of the pledgor or a third person.
Enterprises or structures. buildings installations, apartments in blocks of apartments, means of transport, cosmic items, goods in turnover and any other assets which are not reserved from the civil rights turnover may be subject to mortgage.
The separable fruits may be subject to mortgage only under the condition that they are not subject to right of any third party from the moment of separation. The mortgage of enterprises, structures, buildings, installations, apartments in blocks of apartments, transport vehicles and cosmic items shall be subject to registration at the bodies which carry out the registration of such items.
2. Pawning shall be the type of pledge where by the -pledged assets are transferred by the pledged to the possession of the pledgeholder.
With the consent of the pledgeholder, the items of pledge may be left with the pledgor under lock and seal of the pledgeholder. The item of pledge may be left in possession of the pledgor with the application of the marks or signs witnessing the pledge (fixed pledge).
3. Under the pledge of the right in the case of pledging the lives the property rights shall be subject to pledge which may be alienated in particular the leasing rights of an enterprise or structure, buildings, constructions, the right to a share in the assets of business partnership, death claims, copy rights inventors and any other property rights.
The pledge of the rights in respect of land plot and also rights in respect of any other natural resources shall be permitted within the limits and under conditions provided in the land and any other natural resources legislation.
The term rights may be subject to pledge only prior to the expiration of the term of its effect.
The debtor of pledge right must be notified of the pledge where the pledge rights are confirmed by the documents, the pledge agreements may be documented in a form of a transfer of the document which establishes the right.
4. In the case of pledging the property rights which are certified where the security shall be transferred to the pledgor or deposited with the notary unless the agreement provides otherwise.
5. Monetary resources which are subject to pledge shall be kept in a deposit interest which is accrued on that amount shall belong to the pledgor.
Article 304. The pledge of assets which are in joined ownership
The assets which constitute joined property may be transferred to pledge only with the consent of all the owners of the right to a share joined assets may be subject to independent pledge.
Article 305. Pledgor
1. Both the debtor and a third person may be pledgors.
2. Pledgor of a thing may be its owner or any person who has in respect of the of the item the right of business administration. The person to whom the item belongs under the rights of business authority shall have the right to pledge it without the consent of the owner unless the legislative acts prohibit the authorization of such things as the owner.
3. The pledgor of the right may be the person to whom belongs the right being pledged. Pledging the right to lease or any other right in respect of somebody's thing shall not be permitted without a consent of its owner or a person who has the right of business authority in respect of that thing unless the legislative acts or the agreement prohibits to alienate that right without a consent of the indicated persons.
Article 306. Insurance of pledges assets
1. The agreement of legislative acts may impose upon the pledgeholder the obligation to insure the assets transferred to his ownership and pledged.
Insuring pledged assets which remaining in the use of the pledgor shall be imposed upon the latter.
2. In the case of the occurrence of the insurance accident the right to claim in accordance with the insurance agreement to the pledged assets with the pledgor shall arise in only in the case of the refuse therefore of the pledgeholder.
Where the amount of the insurance compensation exceeds the amount of the obligation insured with the pledge the pledgeholder shall be obliged within three banking days from the moment o its receipt to transfer the difference to the pledgor.
Article 307. Contents of the form of the pledge agreement
1. The agreement of pledge must indicate the pledged item and its evaluation, the fulfillment of the obligation which is secured with the pledge there must also be provided the indication of which the parties shall keep the pledged asset and permissibility to use it.
2. The agreement of pledge must be concluded in writing. The agreements of mortgage and also the agreements of pledge of movable assets or the rights to assets to secure the obligations under agreements which must be notarized shall be subject to notarization.
3. The failure to comply with the rules contend in paragraph 2 and 3 of this Article shall result in the invalidity of the agreement of pledge.
Article 308. Registration of the agreements of pledge
1. The pledge of the assets which is subject to the state registration must be registered with the body which carries out the registration of those assets.
2. The body which carries out the registration shall be obliged to maintain the register of the registration of pledges and to adopt measures to protect interest of pledgeholders to prevent the alienation of pledgor assets without a consent of the pledgeholder.
When changing the nature and contents of a secured debt claim, an additional registration shall be carried out.
Where the right to own the pledged assets is assigned to any other person, the entry of the assignment to the name of a new owner shall be entered to the register.
3. The pledgor who fulfilled the secured obligation shall have the right to demand the annulment of the entry of pledge in the register. Upon the demand of the pledgor, the pledgeholder shall be obliged to present to the body which carries out the registration the necessary documents and written applications. In failure to fulfill or untimely fulfillment by the pledgeholder of those obligations the pledgor shall have the right to claim the compensation of losses inflicted to him through that.
Article 309. Assets to which the rights of the pledgeholder apply
1. The rights of the pledgeholder (the pledge rights) in respect of an item which is the item. in pledge shall apply to the right to own it unless otherwise is provided by the agreement or legislative acts.
The rights of pledge shall apply to the fruit received and the cost as a result of the use of the pledge asset in the cases which are provided by the agreement or legislative acts.
2. In the case under mortgage of enterprise or any other property complex as a whole the right to pledge shall apply to all its assets movable and immovable including the right to claim and exclusive rights among which those acquired during the period of mortgage unless otherwise provided in the law or the agreement.
3. The mortgage of a building or structure shall be permitted only with the simultaneous mortgage under the same agreement or the right the land plot on ,which that building is located or the structure or the part of that plot which is functionally secures the pledged item.
Article 310. The emergence of the right to pledge
1. Unless otherwise provided by the pledge agreement, the right to pledge shall arise with respect to the assets the pledge of which is subject to register from the moment of the registration of the agreement in respect to any other assets from the moment of a transfer of those assets to the pledgeholder and if it is not subject to transfer than from the moment of the conclusion of the pledge agreement.
2. The right in accordance with the rules of paragraph 2 of Article 327 of the present Code.
Article 311. Subsequent pledge (repledge)
1. If the property which was pledged is to become the subject of another pledge to secure other claims (repledge) the repayment of the subsequent pledgeholder shall be satisfied from the value of the pledged item after the claims of the previous pledgeholders.
2. Repledge is allowed unless it is prohibited by the previous agreement of pledge.
3. The pledgor shall be obliged to report with subsequent pledgeholder the information concerning the all the existing pledgors of that asset and he shall be responsible for the losses inflicted upon the pledgeholders by nonfulfillment of this duty.
Article 312. Contents and the safety of pledged property
1. The pledgor or pledgeholder in relation depending on which of them keeps the pledged property shall be obliged unless otherwise provided legislative acts or the agreement as follows:
1) to take measures required for ensuring in the safety of the pledged assets including among those for the protection of it from encroachments and claims by third parties;
2) immediately notify the other party of the emergence of a threat of loose or damage to the pledged property.
2. The pledgeholder and pledgor shall have the right to check through documents and the conditions of storage of pledged assets which are kept by the other party.
3. In case of a material breach by the pledgeholder of the obligations indicated in paragraph 1 of this article which carries the threat of damage to the pledged assets, the pledgor shall have the right to claim the premature termination of the pledge.
Article 313. Consequences of the loss or damage to pledged assets
1. The pledgor shall bear the risk of accidental destruction or damage to the pledged property unless otherwise provided in the pledge agreement.
2. The pledgeholder shall be responsible for complete or partial loss or damage to the pledged item transferred to him unless he proves that may be exempt from the responsibility in accordance with article 359 of the present Code.
3. The pledgeholder shall be responsible for the loss of in the amount of its actual cost and for the damage in the amount of money for-which the amount at which pledged item was evaluated when transferred to the pledgeholder.
4. Where as a result of the damage to the pledged item it was changed so much that may not be used in accordance with its designation the pledgor shall have the right to reject it and to claim the replacement and claim the compensation for its loss.
5. The agreements may provide the obligation of the pledgeholder to compensate to it pledgor and any other losses which are inflicted by the loss or damage to the pledged item.
6. The pledgor who is the debtor in the pledge shall have the right to include the claim towards the pledgeholder concerning the compensation of losses inflicted by loss or damage to the pledged item into repayment of the obligation which is secured with the pledge.
Article 314. Replacement and restitution of pledged item
1. The replacement of the item pledged shall be permitted with the consent of the pledgeholder unless legislative acts or the agreement provide otherwise.
2. Where the pledged item was destroyed or damaged or the right to own or to business authority in respect thereof seized on the grounds established by the legislative acts the pledgor shall have the right within the reasonable period to restore the pledged item or replace it with any other similar or equal identical asset.
Article 315. The use and disposal of pledged items
1. The pledgor shall have the right unless otherwise provided in the agreement and is not in sue from the essence of the pledge to use the pledged item in accordance with its designation including extraction of fruits and income out of it.
2. Unless otherwise provided in the legislative acts or agreements and does not result from the essence of the pledge, the pledgeholder shall have the right to alienate the pledged, item into ownership, business authority or operative management or to transfer it into lease or free use of any other person or in any other way dispose of it only with the consent of the pledgeholder.
An agreement which restricts the right of the pledgor to bequest pledged assets shall be invalid.
3. The pledgeholder shall have the right to use the pledged item transferred to him only in the case which provides the agreement regularly presenting to the pledgor the reports of the use. In accordance with the agreement the pledgeholder may be delegated with the obligation to extract from pledged item fruit and income for the purpose of repaying the principal obligation or in the interest of the pledgor.
Article 316. Protection by the pledgeholder of his rights in the pledged item
1. The pledgeholder who held or should have held pledged assets shall have the right to claim it from anybody else's illegal possession including from the pledgor himself.
2. In the event the agreement grants the pledgeholder the right to use the pledged item transferred to him, he may demand from any other persons including the pledgor to eliminate any and all violations of his right even though those violations are not related to the dispossession.
Article 317. The basis for the imposition of penalty of claims on pledged assets
1. Claims in respect of pledged assets for the satisfaction of the claims of the pledgeholder (creditor) may be ii-imposed in the cases of a failure to fulfill or improper fulfillment by the debtor of the obligation secured with the pledge for which he is liable.
2. The imposition of a claim of pledged assets may be refused if the violation committed by the debtor of the obligation which is secured with the pledge is extremely small and the amount of the claim of the pledgeholder as a result of that is clearly incommensurate with the value of the pledged assets.
Article 318. The procedure for the imposition of claims on the pledged item
1. Satisfaction of the claim of pledgor out of the value of pledged assets shall be carried out unless otherwise provided in the present Code or any other legislative acts or agreements in a judicial procedure.
2. In the cases provided in the pledge agreement and also the present Code and any other legislative acts the pledgor shall have the right to independently sell the pledged assets in a compulsory non-judicial procedure by way of conducting auction.
The same right shall belong to the bank pledgeholder in respect of selling the pledge item which secures under monetary law.
Article 319. Selling pledged assets
1. Selling (sales) of pledged assets upon which in accordance with article 20 of the present Code a claim is imposed shall be carried out by way of selling in public auctions in a procedure which is established by the procedure legislation unless the legislative acts provide any other procedure.
2. The special consideration in selling pledged assets in a compulsory non-judicial procedure shall be established by the present Code and law concerning mortgage or immovables. Rules and procedure which are established by the law concerning mortgage shall apply to selling assets when executing any other types of pledge unless the present Code provides otherwise.
3. Upon the request of pledgor the Court shall have the right in the resolution concerning the imposition of a claim on pledged assets to delay its sale in public auctions for a period up to a year. The delay shall not impact the rights and obligations of the parties in respect of the obligation which is secured the pledge of that asset and it shall not except the debtor from the repayment of loss which increase during the period of delay of the creditor and amongst of profit.
4. Any legal entities and citizens including pledgor and right to participate the auction.
Prior to the beginning of the auction the court or any entrusted nominated person (Article 320 of the present Code) shall have the right to require from each participant of the auction the payment of a guarantee contribution. The guarantee contributions should be subject to repayment upon the accomplishment of the auction. A guaranteed contribution by a participant who won the auction shall be included in the account of the final price. A guaranteed contribution of a participant who, won the auction, who did not pay the final price of the disposal of the Court or the nominated person.
5. When announcing auctions as not taking place or invalid the pledgeholder shall have the right either to turn the pledged assets to his own property at its current estimated value which is established by the decision of the court or nominated person on the bases of the conclusion of the state body for the appraisal assets or to require the organization of new auction.
6. If the amount which is received from selling pledged assets is insufficient to cover the claim of the pledgeholder he shall have the right in the absence of any other indication in the legislative acts or agreement to receive the amount of shortage from the other asset of the debtor without using the advantages pasted on the pledge.
Where the amounts received in selling pledged assets exceeds the amount of the claim secured with pledgeholder the difference shall be returned to the pledge.
7. The debtor and the pledgor with the third party (material warrantor) shall have the right at any time prior to when the sale took place of the pledged item terminate the imposition on him of the claim its sale have executed the obligation which is secured with the pledge or the part thereof the fulfillment thereof has been delayed. The agreement which restricts this right shall be invalid.
Article 320. Selling pledged assets in a compulsory nonjudicial procedure
1. When selling pledged assets in a compulsory non-judicial procedure, the auction shall be carried out by a fiduciary, which may be legal entity or a citizen, and which has the power of attorney from the pledgeholder to sell the pledged assets in the case of the breach of an obligation secured with the pledge.
2. The entrusted person shall execute by the following procedure:
1) to compile notification to the pledgor of the default on the obligations and register this item at the body where the pledge agreement was registered;
2) where the requirements were not satisfied which were from the notification but not earlier than in two months from the moment of its dispatch to pledgor, he shall compile the notification of auction to sell the pledged assets, register it with the body where the pledge agreement was registered, and deliver it to the pledgor;
3) officially publish an announcement of the auction in the local press.
Article 321. Premature fulfillment of an obligation which is secured with the pledge and imposition of the claim of the pledged property
1. The pledgeholder shall have the right to demand premature fulfillment of the obligation secured with the pledge in the event:
1) he discontinues to possess the subject of the pledge not under the conditions of the pledge agreement;
2) breaking by the pledgor of the rules concerning the replacement of the pledged asset (article 3 14 of the present Code);
3) the loss of the pledged asset on the circumstances for which the pledgeholder is not responsible (paragraph 2 of article 313 of the present Code) unless the pledgor did not exercise the rights provided by paragraph 2 of Article 314 of the present Code.
2. The pledgeholder shall have the right to demand a preliminary fulfillment of the obligation secured by the pledge and where his demand is not satisfied to impose a claim upon the pledged item in the event of:
1) breaking by the pledgor of the rules concerning subsequent pledge,
2) nonfulfillment by the pledgor of the obligations provided in subparagraphs 1 and 2 of Article 312 of the present Code;
3) breaking by the pledgor of the rules concerning the disposal of pledged assets (paragraph 2 of Article 315 of the present Code).
Article 322. Termination of pledge
1. Pledge shall terminate:
1) upon termination of the secured obligation;
2) upon the claim-n of the pledgor where grounds exist which are provided in paragraph 3 article 3 12 of the present Code;
3) in the event of loss of the pledged assets or termination of the pledged right if the pledgor does not exercise the right provided in Article 314.2 herein;
4) in the event of the sale from public auction of the pledged assets and also in the case where its sale became impossible (article 3 19).
2. An entry must be made in the register concerning the stopping of the pledge in the register where the pledge agreement was registered.
3. When terminating a pledge as a result of the fulfillment of the obligation which is secured with the pledge or by demand of. the pledge (paragraph 3 article 312) the pledgeholder who holds pledged assets shall be obliged to immediately return it to the pledgor.
Article 323. Preservation of pledge in the transfer of the right to pledged assets to any other person in the order of legal succession
1. In the case of a transfer of the right to own pledged assets or the right to business management with respect to them from the pledgor to any other person as result of charged or free of charge alienation of those assets or in the procedure of the universal legal successorship, the right of pledge shall retain its effect.
The legal successor of the pledgor shall become the pledgor and he shall carry all the obligations of the pledgor unless the agreement with the pledgeholder provides otherwise.
2. Where the assets of the pledgor which are the pledged items are transferred in a procedure of legal successorship to several persons, then each of the legal successors (acquirers of the assets) shall bear the non-fulfilled secured obligation in proportion with the piece of the property transferred to him. However where the pledged item is indivisible or for any other reasons remains in a joined common ownership of the legal successors they shall became solidary pledgors.
Article 324. Consequences of compulsory confiscation of pledged assets
1. When the right to own of the pledgor in respect of the assets which are pledged items, terminates on the basis and in the procedure provided by legislative acts, as result of seizure (redemption) for state needs, requisitions for nationalization, and the pledgor is granted other assets or appropriate compensation, the right of pledge shall apply to assets which are granted instead or appropriately the pledgeholder shall acquire the right of priority satisfaction which is due to the pledgor. The pledgor holder may also require a premature fulfillment of the obligation which is secured with pledge (paragraph I article 3 2 1).
2. In the cases which the property which is pledged are confiscated from the pledgor in accordance with the procedure established by law on the grounds that in reality the owner of that property is another person or in form of a sanction for commitment for a crime or any other violation of law, the pledge in respect of that asset shall cease. In those cases the pledgeholder shall have the right to claim a premature fulfillment of the obligation secured with the pledge.
Article 325. The assignment of rights in accordance with a pledge agreement
1. A pledgeholder shall have the right to assign his rights in a pledge agreement to any other person with the observance of the rules concerning the conveyance of rights of the creditor by way of assigning the claims (article 339, 302, 347 of the present Code).
2. The assignment by pledgeholder of his rights in a pledge agreement to any other person shall be valid it to the same rights of claim in respect of debtor on the principal obligations secured with the debt are assigned.
3. Unless otherwise a mortgage agreement shall signify of the obligation which is secured with the mortgage.
Article 326. The transfer of debt in an obligation secured by pledge
The pledge shall terminate with the transfer to any other person of the debt in an obligation secured with pledge where the pledgor does not give his consent of the creditor to be responsible for the new debtor.
Article 327. Pledge of goods in circulation
1. The pledge of goods in the circulation shall be recognized as the pledge of goods when storing them with the pledgor and with granting to the pledgor of the right to change the composition and a physical shape of the pledged assets (merchandise stock, raw materials, materials, semi-finished products, finished products and the like) provided that the total value does not become less than the on indicated in the pledge agreement.
Reduction of the value of the pledged goods in circulation is allowed commensurate with the fulfilled part of the obligation provided in the agreement.
2. Goods in circulation which are alienated by the pledgor shall cease to be a subject of the pledge from the moment of their transfer to the ownership, business authority or operational management of the acquirer and the goods acquired by the pledgor indicated in the pledge agreement shall become subject to pledge from the moment of the emergence of the right to them with the pledge business authority.
3. The pledgor of goods is circulation shall be obliged to keep the book of records of pledgor's income which the interest concerning the conditions of pledging goods or any other transactions which result in the changes in the composition or the natural form of pledge assets or pledged goods including the processing on the date of the last transaction shall be entered.
4. In the event that the pledgor violates conditions of pledging goods in circulation the pledgeholder shall have the right by way of affixing to the goods his signs and seals to suspend transaction with them prior to the identification of the violation.
Article 328. Pledging items in a pawnshop
1. The acceptance from citizens as pledge of movable assets which are intended for personal use for securing short term loans may be carried out as entrepreneurial activities by specialized enterprises, pawnshops which have licenses therefor.
2. The agreement concerning pledging items in a pawnshop shall be formulated by the pawnshop issuing pledge ticket.
3. The pledged items should be transferred to the pawnshop, a pawnshop should be obliged to insure for the benefit of the pledgor at its expense that items accepted for pledge in full amount of their evaluation which is established in accordance with the prices for items of that kind and quality which are usually labeled in trade of the moment of their acceptance to pledge. A pawnshop shall not have the right to use and dispose of pledged items.
4. The pawnshop shall bear the responsibility for the loss and damage to pledged items unless approved that the loss or damage have occurred as a result of a force-major circumstances.
5. In the case of the failure to return on the established date of the amount of credit which was secured with the pledge of items in a pawnshop shall have the right on entry of the notary upon expiration of the privileged month term to sell the assets in a procedure which is established for selling pledged assets. After that the claim of the pawnshop towards the debtor shall be redeemed even if the amount which is received in selling pledged assets is insufficient for the full satisfaction.
6. The rules for citizens by pawn shop under the pledge of the items which belong to citizens and also the procedure for licensing pawnshops shall be established in accordance with the present Code in the legislative acts.
7. The conditions of the pledge agreement of things in pawnshops which restricts the rights of the pledgor is compared to the rights which are granted to him by the present Code and the appropriate legislative acts shall be invalid from the moment of the conclusion of the agreement. Instead of such conditions the relevant provisions of the present Code and that legislative acts shall apply.
Article 329. Surety
1. By virtue of surety, the surety shall be obliged to the creditor of any other person (debtor) to be liable for the fulfillment of an obligation of that person entirely or partially, jointly with the debtor.
2. The persons who issue a surety, shall be jointly liable to the creditor, unless it is otherwise provided in the warranty agreement.
3. A surety agreement may be concluded also for ensuring an obligation which will arise in the future.
Article 330. Guarantee
By virtue of a guarantee the guarantor shall be obliged to the creditor of ally other person (debtor), to be liable for the fulfillment of the obligations of that person, entirely or in part, subsidiarily.
Article 331. The bases and form of surety and guarantee
1. A surety and a guarantee shall arise on the basis of a surety or guarantee. The use of a guarantee may be established by the legislation.
2. Surety or guarantee agreements must be concluded in writing. Failure to comply with the written form shall result in invalidity of the warranty or guarantee agreement.
3. The written from of warranty and guarantee agreements shall be deemed to be complied with, provided the warrantor or guarantor notified in writing the creditor if his liability for the fulfillment of the obligation by the debtor, and the creditor did not refuse from the proposal of the warrantor or the guarantor during the period of time which is normally required for that.
Article 332. The liability of the surety and guarantor
1. The surety and guarantee shall secure only valid claims. However, the surety and the guarantor shall not be exempt from the liability, when they warranted for a debtor whose deed-incapacity was known to them before-hand, while the creditor did not know about that.
2. A surety shall be liable to the creditor in the same volume as the debtor including the payment of interest, court expenses associated with the levying of the debt and other losses of the creditor which are caused by the failure to fulfill or improper fulfillment of the obligation by the debtor, unless it is otherwise established in the warranty agreement.
3. A guarantor shall be liable to' the creditor within the amount indicated in the guarantee, unless it is otherwise provided in the conditions of the guarantee. Prior to the presenting any claim, to the guarantor who bears the subsidiary liability, the creditor must adopt reasonable measures to satisfy that claim by the debtor, in particular, by way of reckoning a counter claim and making a claim, in accordance with the established procedure, on the property of the debtor.
Article 333. The right and obligations of a warrantor
1. A warrantor shall be obliged to notify the debtor prior to the satisfaction of the claim of the creditor, and where an action is filed against the warrantor, - to bring the debtor to participation in the case. If the contrary is the case, the debtor shall have the right to make any objections against the regress claim of the warrantor, which he had against the creditor.
2. A warrantor shall have the right to make objections against the claim of the creditor, which may be presented by the debtor, unless it otherwise follows from the warranty agreement. The warrantor shall not lose the right to those, objections even in the case where the debtor refused from them, or recognized his debt.
Article 334. The right of a warrantor and guarantor who fulfilled their obligation
1. To the warrantor who fulfilled the obligation, all the rights of the creditor shall be transferred associated with that obligation, and the rights which belonged to the creditor as pledgeholder, in the amount in which the warrantor satisfied the claims of the creditor. The warrantor shall also have the right to claim from the debtor the payment of interest in the amount paid to the creditor, and coverage of any other losses incurred in relation to the liability for the debtor.
2. Upon fulfillment by the surety of an obligation, the creditor shall be obliged to hand to the warrantor the documents which certify the claim towards the debtor and to convey the rights which provide for that claim.
3. The rules which are established in paragraphs 1 and 2 of this Article shall apply, unless it is otherwise provided in the legislation or in the agreement of the warrantor with the debtor or follows from the relations between them.
4. A guarantor shall acquire the same rights in respect of the part in which he fulfilled the obligation of the debtor to the creditor.
Article 335. Notification of the warrantor and guarantor of the fulfillment of an obligation by the debtor
A debtor who fulfilled an obligation secured with a warranty or guarantee shall obliged to immediately notify of that the warrantor and the guarantor. If the contrary is the case, the warrantor or guarantor, who in their term who fulfilled the obligation, shall have the right to claim front creditor what he received undeservedly, or to present a regress claim to the debtor. If the latter is the case, the debtor shall have the right to claim from the creditor only the amount which was received undeservedly.
Article 336. Cessation of warranty or guarantee
1. A warranty and a guarantee shall cease with the termination of the obligation secured with them, and also in the case of amending that obligation, which result ins the increase of the liability or any other unfavorable consequences for the warrantor and guarantor without their consent.
2. A warranty and a guarantee shall cease with the transfer to any other person of the debt associated with the obligation which is secured with a warranty or guarantee, unless the warrantor or the guarantor gave to the creditor their consent to be liable for the new debtor.
3. A warranty and a guarantee shall terminate, when upon the arrival of the date of the fulfillment of the obligation secured by them, the creditor refuses to accept the duly fulfilled which was offered the debtor or the warrantor and guarantor.
4. A warranty and a guarantee shall cease upon expiration of the term for which they are issued, which is provided in the warranty or guarantee agreement. Where such term is not established, they shall terminate, unless the creditor within one year from the date of the arrival of the deadline for the fulfillment of the obligation secured with the warranty or guarantee, files an action against the warrantor or guarantor. When the date of the fulfillment of the principal obligation is not indicated and may not be identified or determined by the moment of claim, the warranty or guarantee shall terminate, unless the creditor files the action against the warrantor or guarantor within two years from the date of concluding of the warranty or guarantee agreement.
Article 337. The concept of advance payment. The form of the advance payment agreement
1. A sum in money which is issued by one of the patties to an agreement, at the expense of the payments which are due by it in accordance with the agreement to the other party, and in order to secure the conclusion and the fulfillment of the agreement, shall be recognized as advance payment.
2. Am advance payment agreement irrespective of the amount of the advance payment must be concluded in writing. This rule shall also apply in the case where the principal obligation must be notarized. The failure to comply with the written form shall result in invalidity of the advance payment agreement.
Article 338. The consequences of the termination and the failure to fulfill an obligation secured with an advance payment
1. In terminating an obligation prior to the beginning of its fulfillment, by agreement of the parties, or as a consequence of impossibility to fulfill it, which emerged without their guilt, the advance payment must be returned.
2. When the failure to fulfill an obligation is the responsibility of a party which issued the advance payment, it shall remain with the other party, and if the party which received the advance payment is the guilty patty, it shall be obliged to pay to the other party a double amount of the advance payment. Moreover, the party which is responsible for the failure to fulfill the obligation shall be obliged to compensate to the other party the losses, taking into account the amount of the advance payment, unless it is otherwise provided in the agreement.
Chapter 19. Replacing Persons in An Obligation
Article 339. The bases and the procedure for the conveyance of the rights of the creditor to any other person
1. Any right (claim) which belongs to the creditor on the basis of an obligation may be transferred by him to any other person in a transaction (assignment of the claim) or transferred to any other person on the basis of a legislative act. The rules for the conveyance of the rights creditors to any other persons shall not apply to regress claims.
2. For the conveyance to any other person of the rights of a creditor, the consent of the debtor shall not be required, unless it is otherwise provided in the legislative acts or the agreement.
3. Where a debtor is not notified in writing of the conveyance of the creditor's rights to any other person, the new creditor shall bear the risk of negative consequences caused by associated with that) shall bear the risk of consequences which are unfavorable to him, caused by that. In that case the fulfillment of the obligation to the initial creditor, shall be recognized as fulfilled to the proper creditor.
Article 340. The rights which may not be transferred to any other persons
Transfer of the rights to any person, which are inseparably associated with the person of a creditor, in particular, the claims of alimony and of compensation of damage caused to life or health, shall not be permitted.
Article 341. The volume of the rights of the creditor which are transferred to any other person
Unless it is otherwise provided in the legislative acts or the agreement, the right of the initial creditor shall be transferred to the new creditor in the same volume and on the same terms which existed at the moment of the conveyance of the right. In particular, the rights shall be conveyed to the new creditor, which secure the fulfillment of the obligation, and also any other rights which are related to the right to claim, including the right to unpaid interest.
Article 342. Proofs of the rights of a new creditor
1. A debtor shall have the right not to fulfill obligations to the new creditor until he is presented with the proofs of the transfer of the claim to that person.
2. A creditor who assigned a claim to any other person shall be obliged to transfer to him the documents which certify the right to claim and to communicate the information which has significance for the exercise of the claim.
Article 343. Objections of the debtor against the claims of a new creditor
A debtor shall have the right to put forward against the claims of the new creditor, the objections which he had against the initial creditor prior to the moment of receipt of the notification of the conveyance of the rights associated with the obligation to the new creditor.
Article 344. The transfer of the rights of a creditor to any other person on the basis of the legislative acts
The rights of a creditor in a obligation shall be transferred to any other person on the basis of the legislative acts, and of the arrival of the circumstances which are indicated in them as follows:
1) as a result of the universal legal successorship in the rights of the creditor;
2) upon decision of the, court on the transfer of the rights of the creditor to any other person where the possibility of such transfer is provided in the legislative acts;
3) as a result of the fulfillment of the obligation of the debtor by his warrantor or pledgor who are not debtors in that obligation;
4) in the subrogation to the insurer of the rights of the creditor to the debtor who is guilty of the occurrence of the insurable event;
5) in any other cases provided in the legislative acts.
Article 345. The terms for assignment of a claim
1. Assignment of a claim by a creditor to any other person shall be permitted, unless it contradicts the legislation or the agreement.
2. It shall not be allowed to assign claims in an obligation in which the person of the creditor has significance for the debtor without consent of the debtor.
Article 346. The form of assignment of a claim
1. Assignment of a claim which is based on a transaction committed in a written (simple or notarized) form, must be committed in an appropriate written form.
2. The assignment of a claim associated with the transaction which requires the state registration, must be registered in accordance with the procedure provided for the registration of treat transaction.
3. The assignment of a claim associated with an order security shall be committed by way of inscription in that security (paragraph 3 of Article 132 of the present Code).
Article 347. The responsibility of a creditor who assigned a claim
The initial creditor who assigned a claim shall be liable to the new creditor for the invalidity of the claim transferred to him, but he shall not be liable for the non-fulfillment of that claim by the debtor, except for the case where the initial creditor assumed upon himself the warranty for the debtor to the new creditor.
Article 348. Transfer of debt
1. The transfer by a debtor of his debt to any other person shall be permitted only with the consent of the creditor.
2. A new debtor shall have the right to make objections against the claims of the creditor, which are based on the relations between the creditor and the initial debtor.
3. The rules which are contained in paragraphs 1 and 2 of Article 346 of the present Code shall appropriately apply to the form of the transfer of the debt.
Chapter 20. The Liability for Violation of Obligations
Article 349. The concept of violation of obligations
1. The failure to fulfill or fulfillment in an improper manner (untimely, with shortage of goods and work, with violating any other conditions determined in the contents of the obligation), improper fulfillment, shall be understood to be violation of the obligations. Where impossibility arises of a proper fulfillment, the debtor shall be obliged to immediately notify thereof the creditor.
2. The holding of the debtor responsible for the violation of an obligation shall be carried out upon the claim of the creditor.
Article 350. Compensation of losses, which are caused by the breach of an obligation
1. A debtor who breached an obligation shall be obliged to compensate to the creditor any losses caused by the violation (paragraph 4 of Article 9 of the present Code). Compensation of losses in obligations which are secured with a forfeit, shall be determined by the rules which are provided in Article 351 of the present Code.
2. The agreement of the parties which is adopted prior to the breach of the obligation, concerning the exemption of the debtor from the compensation of losses which are caused by the violation shall be invalid, however, the parties by mutual consent may provide the penalty only for the actual damage to property.
3. Unless it is otherwise provided in the legislation or agreement, which determining losses, the prices shall be taken into account, which existed in that place where the obligation should have been fulfilled, on the date of a voluntary satisfaction by the debtor of the claim of the creditor, and if the claim was not satisfied voluntarily, on the date of the filing of the action.
On the basis of the circumstances, the court may satisfy a claim for compensation of the losses, taking into account the prices which existed on the date of passing the decision, or on the date of the actual payment.
4. When determining the amount of lost profits, the measures shall be taken into account which are adopted by the creditor for its receipt and the preparations made for that purpose.
5. A creditor shall have the right to claim the recognition as an invalid of an action by the debtor, provided he proves that it is committed for the purpose to evade the responsibility for the violation of the obligation.
Article 351. Losses and forfeit
1. When a forfeit is established for a failure to fulfill or for improper fulfillment of an obligation, then the losses shall be compensated in the part which is riot covered by the forfeit. The legislation or the agreement may provide the cases where it is permitted to claim only forfeit but not the losses, where losses may be levied in full amount in addition to the forfeit; and where at the discretion of the creditor either forfeit or losses may be claimed.
2. In the cases where for a failure to fulfill or improper fulfillment of an obligation a limited liability is established, the losses which are subject to compensation in the part which is not covered by the forfeit, or in addition to it or instead of it, may be claimed up to the limits established by such limitations.
Article 352. Compensation of moral losses inflicted by violation of obligations
Moral losses inflicted by violation of an obligation shall be compensated in addition to the losses provided in Article 350 of the present Code.
Article 353. The responsibility for illegal use of somebody else's monetary resources
1. For an illegal use of somebody else's monetary resources as a result of a failure to fulfill a monetary obligation, or for a delay in their payment, or for their unfounded receipt or saving at the expense of any other person, interest on the amount of those resources shall be subject to payment. The amount of interest shall be calculated on the basis of the average interest rate of the banking interest which is determined by the National Bank of the Republic of Kazakstan on the date of the fulfillment of the monetary obligation or its relevant part. When levying a debt in a judicial procedure, the court may satisfy the claim of the creditor on the basis of the average interest rate of the banking interest on the date of the filing of the action, or on the date of the passing the decision, or on the date of the actual payment. These rules shall be apply, unless any other amount of interest is established in the legislative act or agreement.
2. Interest for the use of somebody else's resources shall be levied on the date of the payment of those resources to the creditor, unless the legislation or the agreement established a shorter term for the calculation of the interest.
3. When losses inflicted upon the creditor through an illegitimate use of his monetary resources, exceeds the amount of interest which is due to him on the basis paragraph 1 of this Article, he shall have the right to claim from the debtor compensation of losses in the part which exceeds that amount.
4. The accrual of interest upon interest shall not be allowed, except for the cases where the legislation envisages the inclusion of the interest for the expired year into the principal amount of debt.
Article 354. The liability and fulfillment of an obligation in kind
1. Payment of a forfeit and compensation of losses cases of an improper fulfillment of an obligation, shall not exempt the debtor from the fulfillment of the obligation, unless it is otherwise provided in the legislative acts or agreement.
2. Compensation of losses in case of a failure to fulfill an obligation and payment of a forfeit for its non-fulfillment shall exempt the debtor from the fulfillment of the obligation in kind, unless it is otherwise provided in the legislative acts of the agreement.
3. The refusal of a creditor to accept a fulfillment, which as a result of a delay lost interest for him (Article 365 of the present Code), and also the payment of a monetary sum which is established as smart money (Article 369 of the present Code) shall not exempt the debtor from the fulfillment of the obligation in kind.
Article 355. The consequences of non-fulfillment of an obligation to transfer an individually defined item
1. In the case of a failure to fulfill the obligation to transfer an individually defined item into ownership, business authority or operational management or for the use to the creditor, the latter shall have the right to claim the confiscation of that item from the debtor and its transfer to the creditor, except for the cases where a third party has a priority right to that item.
2. The transfer of the item shall not exempt the debtor from the compensation of losses.
Article 356. Fulfillment of an obligation at the expense of the debtor
In the case of a failure by the debtor to fulfill an obligation to manufacture and transfer an item to his creditor, or to perform for him certain work or render a service, the creditor shall have the right within a reasonable period to delegate the fulfillment of the obligation to third pat-ties for a reasonable price or to fulfill it himself, unless it otherwise follows from the legislation, agreement or the essence of the obligation and to claim from the debtor to compensate the necessary expenses and any other losses.
Article 357. Subsidiary liability
1. Prior to the presentation of a claim to the person who in accordance with the legislation or conditions of an obligation bears the responsibility in addition to the responsibility of any other person who is the principal debtor (subsidiary responsibility), the creditor must present the claim to the principal debtor.
When the principal debtor refuses to satisfy it or failed to fulfill entirely that claim of the creditor, or the creditor has lot received from him within a reasonable period the response to the claim presented, that claim in the part unfulfilled may be presented to the person who bears the subsidiary responsibility.
2. A creditor shall not have the right to claim the satisfaction of his claim to the principal debtor from the person who bears the subsidiary liability where such a claim may be satisfied by way of reckoning against a counter claim to the principal debtor (Article 370 of the present Code) or by levying the resources from the account of the principal debtor.
3. A person who bears a subsidiary liability must prior to the satisfaction of the claim which is presented to him by the creditor, notify thereof the principal debtor, and if a claim is mode to such person, to bring the principal debtor to the participation in the case. When the contrary in the case, the principal debtor shall have the right to issue against the regress claim of the person who bears subsidiary liability, the objections which he had against the creditor.
Article 358. Limiting the amount of liability in obligations
1. In certain types of obligations and in the obligations which are associated with certain types of activities, the legislative acts may limit the right to full compensation of losses (limited liability).
2. An agreement to limit the amount of liability of the debtor in an agreement of jointing or in any other agreement which the creditor is a citizen who acts as a consumer, shall not be valid where the amount of liability for that type of obligations or for that violation is established by law.
Article 359. The bases of responsibility for violating obligations
1. A debtor shall be responsible for the failure to fulfill and (or) improper fulfillment of an obligation if the guilt exists, unless it is otherwise provided in the legislation or agreement. A debtor shall be recognized as innocent, if he proves that he adopted all the remedies under his control for a proper fulfillment of the obligation.
2. A person who failed to fulfill or improperly fulfilled an obligation carrying out entrepreneurial activities, shall bear a financial responsibility, unless he proves that a proper fulfillment turned out to be impossible as a result of force majeure, that is extraordinary and unpreventable under those conditions, circumstances (natural calamities, military actions, etc.). The lack in the market place of the goods, work or services which are required for the fulfillment, specifically shall not be referred to such circumstances.
The legislation or agreement may provide in any other bases for liability or exemptions therefrom.
3. An agreement concluded previously for the elimination or limitation of liability for deliberate violation of an obligation shall not be valid.
Article 360. Entrepreneurial risk in an obligation
When an obligation envisages the fulfillment of certain work in accordance with the order of an entrepreneur, the risk of impossibility or inexpedience to use the results of the work shall rest with the entrepreneur. A person who properly fulfilled a work, shall have the right to receive the payment in proportion to the degree of the fulfillment, except for the cases where the agreement provides any other distribution of the entrepreneurial risk.
Article 361. Consequences of the impossibility to fulfill a bilateral agreement
When in a bilateral agreement it became impossible for one party to fulfill, as a result of a circumstance for which neither of the parties is responsible, then neither of the parties shall have the right to claim the fulfillment of the agreement, unless the legislative act or agreement provides otherwise. Either of the parties shall have the right to claim in that case the return of everything that it fulfilled without receiving any appropriate counter fulfillment.
Article 362. The liability of a debtor for his workers
Actions of the officials or any other workers of the debtor associated with the fulfillment of his obligations shall be deemed to be actions of the debtor. The debtor shall be liable for those actions where they entailed non-fulfillment or improper fulfillment of an obligation.
Article 363. The liability of a debtor for actions of third parties
1. A debtor shall bear to the creditor the liability also in the cases where a violation of an obligation was caused by were the actions or by the failure to act in accordance with the obligations to the debtor by third parties.
The debtor shall bear the responsibility also for the actions or failure to act by third parties to whom the debtor delegated the fulfillment of his obligation to the creditor, unless the legislation establishes, that the responsibility shall be borne by the direct executor.
2. A debtor may be exempt from the liability for violation of an obligation caused by the actions or failure to act by third parties, having proven their innocence.
When carrying out entrepreneurial activities, a debtor may be exempted from the responsibility for a violation caused by the action or failure to act by third parties, provided that was caused by the force majeure (paragraph 2 of Article 359 of the present Code).
3. In the event of violation of an obligation which is associated with the encumbering the subject of the obligation by the rights of third parties, the debtor shall be exempt from the liability only in case where such encumbrances arose prior to the conclusion of the agreement with the creditor and a latter, when concluding the agreement was warned of them.
4. The legislation or agreement may provide any other conditions for the liability of a debtor for the actions of third parties.
Article 364. Creditor's fault
1. When a failure to fulfill or improper fulfillment of an obligation took place for a fault of both parties, the court shall appropriately reduce the amount of the liability of the debtor. The court also shall reduce the amount of the liability of the debtor where the creditor deliberately or through negligence assisted to the increase of the amount of losses inflicted by the failure to fulfill or by improper fulfillment, or did not adopt any reasonable measures to reduce those.
2. The rules of paragraph 1 of this Article shall appropriately apply also in the cases where a debtor by virtue of law or agreement bears the responsibility for non-fulfillment or improper fulfillment of the obligation irrespective of his guilt.
Article 365. Debtor's delay
1. A debtor who delay fulfillment shall be responsible to the creditor for the losses inflicted by the delay and for the consequences of the impossibility to fulfill which emerged by accident during the time of the delay.
2. When as a result of a delay by the debtor, the fulfillment has lost interest for the creditor, he may reject the acceptance of the fulfillment and to claim compensation of losses.
3. A debtor shall not be deemed to be delaying for as long as the obligation may not be fulfilled as a result of the delay by the creditor (Article 366 of the present Code).
Article 366. Creditor's delay
1. A creditor shall be deemed to be delaying where he refused to accept the properly fulfilled, offered by the debtor, or has not committed any actions which are provided in the legislation or agreement, or which follow from traditions of business practice or from the essence of the obligation, prior to the commitment whereof the debtor could not fulfill his obligation.
A creditor shall be deemed to be delaying also in the case of his refusal to properly confirm the fulfillment of obligations performed by the debtor.
2. A creditor's delay shall give to the debtor the right to compensation of the losses caused by delay, unless the creditor proves that the delay took place for the circumstances for which neither himself, nor the persons to whom by virtue of the legislation or of the creditor's instructions, the acceptance of the fulfillment was delegated are not responsible.
All the unfavorable consequences of the occurrence during the delay of the accidental impossibility to fulfill the obligation shall be imposed upon the creditor who committed the delay.
3. In a pecuniary obligation, a debtor shall not be obliged to pay interest for the time of the delay by the creditor.
Chapter 21. Cessation of Obligations
Article 367. The bases for the cessation of obligations
1. Obligations shall terminate entirely or in the part by the fulfillment, granting of smart money, reckoning, novation, forgiving of debt, coincidence of the debtor and the creditor in one person, impossibility to fulfill, the issue of an act by a state body, demise of the citizens liquidation of the legal entity.
2. The cessation of an obligation by claim of one of the parties shall be allowed only in the cases provided by the legislation.
3. The legislation and agreement may provide any other bases for the cessation of obligations.
Article 368. Cessation of an obligation by the fulfillment
1. The fulfillment executed property shall terminate the obligation.
2. An obligation may be terminated by the replacement of the fulfillment, which is carried out by the debtor with the consent of the creditor.
Article 369. Compensation for termination of an obligation
By agreement of the parties, an obligation may be terminated by offering a compensation instead of the fulfillment (payment of money, transfer of assets etc.). The amount, the deadline and the procedure for offering the compensation shall be established by the parties.
Article 370. Termination of an obligation by set-off
1. An obligation shall be terminated in whole or in part by setting-off a similar counterclaim the deadline for which has arrived, or the deadline wherefore is not provided or defined as the moment of claim. The application of one party shall be sufficient for reckoning.
2. Set-off shall not be permitted in the following cases:
1) where in accordance with the application of one of the parties, the claim is subject to statute of limitations, and the term of the statute has expired;
2) when dealing with the compensation of learn done to life or health;
3) when dealing with levying alimony;
4) when dealing with lifelong support;
5) in any other- cases envisaged by the law or agreement.
3. Set-off shall be carried out where a claim emerged on the basis which existed by the moment of the debtor's receipt of the notification concerning the assignment of the claim and the deadline of the claim arrived prior to its receipt, or the deadline is not indicated, or it is determined by the moment of claim.
Article 371. Cessation of an obligation by coincidence of the debtor and creditor in one person
An obligation shall be terminated by the coincidence of the debtor and creditor in one person.
Article 372. Cessation of obligations by novation
1. An obligation shall terminate by the agreement of the parties to replace the initial obligation which existed between them, by any other obligation between the same persons, which provides another subject or method of fulfillment (novation).
2. Novation is not permitted with respect to the obligations to compensate damage caused to life or health, and to pay alimony.
3. Novation shall terminate any additional obligations related to the initial one, unless it is otherwise provided by agreement of the parties.
Article 373. Forgiving debt
An obligation shall be terminated by the exemption of the debtor by his creditor from the obligations which rest with him, unless this violates the rights of any other persons in respect of the property of the creditor.
Article 374. Cessation of an obligation by impossibility of fulfillment
1. An obligation shall cease by the impossibility of its fulfillment if it is caused by circumstance for which the debtor is not responsible.
2. In the case of impossibility to fulfill by a party of its obligations which impossibility is caused by circumstance for which no other party is responsible it shall have the right to claim from the other party the fulfillment of the obligations unless otherwise is provided by the legislation or agreement. In that respect each party which fulfill the obligation shall have the right to claim return performance..
3. In the case where- it is impossible for the debtor to fulfill the obligation which impossibility is caused by guilty action of the creditor the latter shall not have the right to claim the return of the executor by him on the obligation.
Article 375. The cessation of obligation on the basis of the act of a state body
1. Where as a result of an issue of an act by the body of state par or state administration or by a local administration (public act) the fulfillment of an obligation shall be or becomes impossible fully or partially, the obligation shall cease fully or in appropriate part.
The parties which as a result thereof incurred losses shall have the right to request compensation in accordance with the present Code.
2. In the event of a recognition in accordance with the established procedure, of a public act as invalid, on the basis of which an obligation terminated, the obligation shall be reestablished unless otherwise is provided by the agreement of the parties or the essence of the obligation and where the fulfillment thereof did not forfeit an interest for the creditor.
Article 376. Cessation of an obligation by the death of the citizen
1. An obligation shall terminate with the death of a citizen unless the fulfillment may be carried out without the personal participation of the debtor or the obligation in any other way is inseparably connected to the individuality of the debtor.
2. An obligation shall cease with death of the creditor where the fulfillment is intended personally for the creditor or the obligation in any other way is inseparably associated with the person of the creditor .
Article 377. Termination of an Obligation through Liquidation of a Legal Entity
1. An obligation shall cease on the liquidation of a legal entity (debtor or creditor) except for the cases where the legislation delegates the execution of the obligation of the liquidated legal entity to any other legal entity (on obligations which arise as a result of conflicting damage to life, health, and others).
2. A termination of activities or reorganization of a body of the state far or state administration and also local administration shall not result in the cessation of obligations in which such body or administration were a debtor. The execution of the indicated obligations shall be delegated to the body which manages its treasury or to the body in whose disposal (under whose authority) are the budget resources, unless otherwise provided by the resolution concerning the termination of the activities or the reorganization of the corresponding body.
SUBSECTION II. General Provisions on Agreements
Chapter 22. Concept and Terms of an Agreement
Article 378. The concept of an agreement
1. An agreement of two or several persons concerning the establishment, amendment or cessation of civil rights and obligations shall be recognized as an agreement.
2. The rules concerning bilateral and unilateral transactions which are provided in Chapter 4 of the present Code shall apply to an agreement.
3. The general provisions concerning contract shall be applicable to agreements concluded by more than two parties (multilateral agreements) where this does not contradict the multilateral nature of such agreements,
Article 379. Legal relations arising from an agreement
1. Obligatory, material, authorship and any other legal relationships may arise from contracts.
2. The general provisions concerning obligations (Article 269 - 277) shall apply to the obligations arising from contracts unless otherwise is provided in the rules of this chapter and rules concerning separate -types of contracts which are contained in the present Code.
3. The provisions of this chapter shall apply to material, authors or any other violations which arise from contracts (contracts for activities) foundation agreement, author agreement and other unless otherwise follows from the legislation agreement or the essence of the violation.
Article 380. Freedom of contract
1. Citizens and legal entities are free in concluding a contract. The compulsion to conclude a contract shall be prohibited except for the cases where the obligation to conclude a contract is provided in the present Code, legislative acts or the obligation adopted voluntarily.
2. The parties may conclude a contract (as envisaged) which is not envisaged by the legislation.
Article 381. Mixed agreement
Parties may conclude a contract in which are comprised the elements of various agreements as provided by legislation (mixed agreement). With respect of the relations of the parties to a mixed agreement, the legislation shall be applicable to the relevant parts concerning the agreement, the elements of which are contained in the mixed agreement, unless otherwise follows from the agreement of the parties or the essence of the mixed agreement.
Article 382. Stipulating terms of agreements
1. Condition of the agreement shall be determined by at the discretion of the party except for the cases where the contents of certain provision is prescribed by the legislation. In the cases where the provision is prescribed by the legislation. In the cases where the provision of an agreement is provided in a norm which in accordance with the legislation shall be effective unless the agreement of the parties provides otherwise (disposition norm) the parties may by their agreement exclude the application thereof or establish a term which is different from the term provided in therein. Where such agreement does not exist the conditions of the agreement shall be determined by the optional provision.
2. Where a condition of an agreement is not identified by the parties or the disposition norm the relevant condition shall be determined by the tradition of the business turnover which. are applicable to the relations of those parties.
Article 383. Agreements and legislation
1. An agreement must comply with the rules which are compulsory for the parties and which are established by legislation (imperative norms) which are current at the moments of its conclusion.
2. Where after concluding an agreement, legislation provides the compulsory rules for the parties which are different from those which were current at the moment of the conclusion of the agreement, the terms of the concluded agreement shall retain force except for the cases where the legislation provides that its effect shall extend in respect of the relations which arose from the agreements previously concluded .
Article 384. Onerous and non-compensatory agreements
1. The agreement under which a party must receive payment or any other consideration for the execution of its obligations shall be compensatory.
2. Non-compensatory shall be recognized to be an agreement in accordance with one party is obliged to supply to the other party without receiving from if any payment or any counter consideration.
3. The agreement shall be deemed to be compensatory unless the otherwise follows from the legislation contents or the essence of the agreements.
Article 385. Price
1. Fulfillment of an agreement shall be paid in accordance with the price established by the agreement of the parties. In the cases which are provided by the legislative acts the prices shall apply (prices. rates, fees etc.) which are established or regulated by state bodies are authorized therefore.
2. Changing prices after the concluded agreement shall be permissible in the cases and on the conditions which are provided in the agreement the legislative acts or in accordance with the procedure established by the legislative acts.
3. In the cases where compensatory agreement the price is not provided and may not be determined on the basis of the conditions of the agreement it shall be deemed that the fulfillment of the agreement must be carried out at the prices which are at the moment of the conclusion of the agreement under similar circumstances is usually levied for similar goods, work and services.
Article 386. Validity of a contract
1. A contract shall enter into force and it shall be for the parties from the moment of its conclusion (Article 393).
2. The party shall have the right to establish (that the agreement) that the terms of the agreement concluded by them shall apply to their relations which arose prior to the conclusion the agreement which had a reason prior to the conclusion agreement.
3. Where a legislation or an agreement provide the term of validity of the agreement. The expiration of that term shall result in the cessation of obligation of the parties in respect of the agreement. An agreement in which there in no indication as to the term of its validity shall be recognized to be effective to the moment of terminating of finishing the fulfillment by the party of the obligation which are determined in it.
4. The termination of the validity period of an agreement shall not exempt the parties from the responsibility for its violation which took place prior to the expiration of its term of that period.
Article 387. Public agreement
1. An agreement which is concluded by a commercial organization and which establishes its obligations to sell goods, perform work or render services which such organization by the nature of its business and must be carried out in respect of anyone who applies to it (retail trade, conveys by the transport of common designation, communication services, medical, hotel, or banking services, etc.) shall be recognized as a public agreement.
A commercial organization shall not have the right to grant a preference to one person in front of any other in respect of concluding a public agreement except for the cases provided in the legislation.
2. The price of goods, work, and services, as well as any other terms of a public agreement shall be established as the same for any consumer except for the cases where the legislation permits granting privileges for certain categories of users.
3. The refusal of a commercial organization from concluding a public agreement where there is a capacity to grant to the consumer the relevant goods (work, services) shall be prohibited. In the event that commercial organization evades without a basis from concluding a public agreement the provisions of the Code shall apply which are provided in paragraph 4 of Article 399 of the present Code.
4. In the cases which are provided in the legislative acts, the Government of the Republic of Kazakstan may issue rules which are compulsory for the parties when entering and fulfilling a public agreement (statutory agreements regulations, etc.).
5. The conditions of a public agreement which do not meet the requirements established in paragraph 2 and 4 of this Article shall not be valid.
Article 388. Sample conditions of agreement
1. An agreement may provide that some provisions thereof shall be determined by sample conditions which are developed for the agreements of the relevant type and published in press.
2. In the cases where an agreement does not contain a reference to sample conditions, such sample conditions shall apply in respect of the parties as tradition of the business turnover where they meet the requirements established by Article 3 and 382 of the present Code.
3. Sample conditions may be outlined in the form or sample agreement or any other documents which contain those conditions.
Article 389. Agreement of joining (association)
1. An association agreement shall be deemed to be the agreement the conditions thereof are determined by one of the parties in proformas or standard forms and may be adopted by the other party in no other way but by way of adjoining (by accepting) the proposed agreement as a whole.
2. The party which joins the agreement shall have the right to claim the termination of the agreement where the association agreement does not contradict legislation, but deprives the party of rights which are usually granted in agreements of similar type, exclude or limits the responsibility of the other party for the breach of obligations, or contains any other clearly burdensome conditions for the adjoining party of terms, which it, on the basis of its reasonably understood interests did not except should it have the opportunity to participate in determining the conditions of the agreements.
3. Where the circumstances exist which are provided in paragraph 2 of this Article, the claim to terminate the agreement, presented by the party which had joined the agreement, in relation to the realization of business activity, shall not be subject to satisfaction if that party which joined knew or should have known on what terms the agreement was concluded.
Article 390. Preliminary agreement
1. In accordance with a preliminary agreement the parties shall be obliged to conclude in the future an agreement concerning the transfer of assets, performance of work or rendering services (principal agreement) on the conditions provided on the terms provided on the preliminary agreement.
2. A preliminary agreement shall be concluded in the form which is established by the legislation for the principal agreement and if the form of the principal agreement is not established, then in writing. The failure to comply with rules concerning the form of the preliminary agreement shall result in its invalidity.
3. The preliminary agreement must contain the term which permit to identify the subject and any other significant conditions of the principal agreement.
4. In the preliminary agreement is indicated a period within which the parties are obliged to enter in the principal agreement.
If such a period is not identified in the preliminary agreement the agreement provided in it shall subject to be concluded within one year from the moment of the conclusion of the preliminary agreement.
5. In the event where one party which concluded the preliminary agreement evades from concluding the agreement as provided therein , it is obligated to compensate the other party for the losses incurred by that unless otherwise is provided in legislation or the agreement.
6. The obligations which are provided in the preliminary agreement shall terminate where prior to the expiration of the term within which the party must conclude the principal agreement it shall not be concluded or one of the parties sends to the other party the proposal to conclude the agreement.
7. Letter of intent intention letter) unless directly provides the intention of the parties to give to it the state the forth or the preliminary agreement shall riot be deemed to be agreement its non-fulfillment shall not result in any legal consequences.
Article 391. An agreement for the benefit of a third party
1. An agreement shall be recognized to be an agreement for the benefit of a third party in which the party is established that the debtor shall be obliged to carry out the fulfillment not to the creditor but to the third party which is indicated or not indicated in the agreement and which has the right to claim from the debtor the fulfillment of the obligations for his benefit.
2. Unless otherwise provided by the legislation or agreement, from the moment of the third party expression to the debtor of the intention to exercise its right in respect to the agreement, the parties may not dissolve or change the agreement concluded by them without the consent of the third party.
3. The debtor in the agreement shall have the right to have objections against the claim of a third party which he makes against the creditor.
4. In the event the third party rejects the rights which are granted to it in accordance with the agreement, the debtor may use that right unless that contradicts legislation and the agreement.
Article 392. Interpretation of an agreement
1. When interpreting the terms of an agreement, the court shall take into account the literal meaning of the words and expressions contained in it. The literal meaning of the term of an agreement in the case of its clearness shall be established the way of comparing that with other terms and the sense of the agreement as a whole.
2. Where the rules contained in paragraph 1 of this Article do not permit the definition of the contents of the agreement, there must be revealed the actual common will of the parties taking into account the aim of the agreement. In that respect any relevant circumstances shall be taken into account including those which proceeding the agreement including the negotiations, letters exchanged and which was establish in mutual relations of the parties shall be taken into account as well as the traditions of business turnover and the subsequent conduct of the parties.
Chapter 23. Conclusion of an Agreement
Article 393. Essential conditions
1. An agreement shall be deemed to be concluded when between the parties, an agreement is reached in accordance with the proforma which is required in such cases and in respect of all the essential terms thereof. The essential terms on the subject of the agreement are the terms which are recognized as essential by legislation or which are necessary for the agreement of the given type, as well as all the terms in accordance with the statement of one of the parties to the agreement must be reached.
2. Where in accordance with the legislative acts the conclusion of an agreement required the transfer of assets the agreement shall be concluded from the moment of the transfer of the relevant asset.
Article 394. Proforma Agreement
1. Where the parties acquired to conclude an agreement in accordance with the certain proforma it shall be concluded from the moment of formulating it in accordance with the established proforma if the legislation does not require otherwise for the proforma for that type of the agreement.
2. The written proforma of the agreement shall be deemed to be complied with where the written offer to conclude an agreement is accepted in accordance with the procedure provided in paragraph 3 of Article 396 of the present Code.
Article 395. Offer
1. The proposal to conclude an agreement which is made to one or several specific persons, if it is sufficiently definite and expresses the intention of the person who made it to deem himself bound in the event of its acceptance shall be recognized to be an offer.
A proposal shall be deemed sufficiently defined if it contains the essential terms of the agreement or the order of their determination.
2. An offer shall bind the person who sends it from the moment of its receipt by the addressee.
If notification to revoke a offer which was received earlier or simultaneously with the offer itself the offer shall be deemed to be unreceived.
3. The offer received by an addressee may not be revoked during the term established for its acceptance unless otherwise is provided in the offer itself or does not follow from the essence of the proposal or the circumstances under which it was made.
4. Advertising and any other proposals which are addressed to an indefinite circle of persons shall be considered as an invitation to offer unless otherwise is provided in the proposal.
5. The proposal which contains all the significant terms of the agreement from which the will of the person making the proposal is understandable to conclude the agreement on the terms indicated with anyone who fully response shall be recognized as an offer public offer).
Article 396. Acceptance
1. The response of a person to whom an offer addressed about accepting it shall be recognized to be acceptance. Acceptance must be for and unprovided.
2. Silence shall not be recognized as acceptance unless otherwise is provided from the legislative acts. Tradition of the business turnover or any previous business relation of the party.
3. The commitment by the person who received an offer within the period which is established for the acceptance of the action to fulfill the conditions of the agreement which indicated in it (shipment of goods, render of services, performing work, payment of the relevant amount etc.) shall be recognized to be acceptance unless otherwise is provided in the legislative or indicated in the offer.
4. Where a notification of the revocation of acceptance is received by the person who sent offer earlier or simultaneously with the acceptance the acceptance shall be deemed unreceived.
Article 397. The procedure for concluding agreement
1. When an offer contained the date for its acceptance the agreement shall be deemed to be concluded if the acceptance is received by the person who sent the offer within the indicating in it.
2. Where a written offer does not contain the date for the acceptance the agreement shall be deemed to be concluded of the agreement is received by the person who sent the otter prior to the (termination) expiration of the term established by legislation and if such term is not established within the time which is normally required for that.
When an offer is made orally without any indication of the date for its acceptance agreement shall be deemed to be concluded where the other party shall immediately notify of the acceptance.
3. In the cases where notification sent timely or the acceptance is received with the delay the acceptance shall not be considered to be late if the party which has sent the offer did not immediately notify, the other party of receiving the acceptance with the delay.
If the party which sent the offer party of the acceptance of the receipt of the acceptance with tile delay the agreement shall be deemed to be concluded.
4. The response to agree to conclude the agreement on the conditions different than those proposed in the offer shall not be the acceptance. Such a response shall be recognized as a refusal of the offer and it at the same time shall be deemed to be a new offer.
Article 398. The place of concluding the agreement
If the agreement does not provide the peace of its conclusion the agreement shall be deemed to be concluded at the residence of the citizen or in the place of the location of legal entity which sent the offer.
Article 399. Conclusion of agreements in the obligatory procedure
1.In the cases where in accordance with the present Code or any other legislative acts, the conclusion of the agreement is compulsory for one of the parties, that party must send to the other party notification of the acceptance or of the refusal to accept or to accept the offer (draft of agreement) or any other term (protocol of differences to draft agreement) within 30 days from the date of the receipt of the offer unless any other term is established by the legislation or is not agreed by the parties.
2. The party which sent the offer and received from the party for which the conclusion of the agreement is compulsory the notification of its acceptance on any other conditions (protocol of differences, draft agreement) shall have the right to enter the disputes arising when concluding the agreement for the consideration of the court within 30 days from the day of the receipt of such notification or upon the expiration of the term for the acceptance unless the legislation concerning special types of agreements provides any other term.
3. In the event that, with respect of a draft agreement sent by one party for which the conclusion of agreement is required, the protocol of differences is received within 30 days, that party shall be obliged, within 30 days from the date of the receipt, to notify the other party of the acceptance of the agreement in its version or of the declining this protocol of differences.
When declining the protocol of differences or non receipt of the notification concerning the result its consideration within the established period of time the party which has sent the protocol of differences shall have the right to enter the differences dispute which arose in the conclusion of an agreement for the consideration of the court unless the legislation concerning special types of agreement does not provide otherwise.
4. If a party for which in accordance with the present Code or any other legislative acts the conclusion of agreements compulsory is evading its conclusion the other party shall have the right to appeal to the court with the claim. to compel to conclude the agreement.
The party which unfoundedly evade the conclusion of the agreement shall be obliged to the other party the losses incurred in the refusal to conclude the agreement.
Article 400. Pre-contract Disputes
In the events provided in paragraphs 2 and 3 Article 399 of the present Code, and also where the dispute that arose at the conclusion of the agreement, or by the agreement of the party entered for the consideration of a court, the terms of the agreement on which the parties had differences shall be determined in accordance with the decision of the court.
Chapter 24. Alteration and Termination of an Agreement
Article 401. Reasons for amending and terminating agreements
1. Changes and termination of agreements shall be possible by the agreement of the parties unless otherwise is provided in the Code and any other legislative acts and the agreement.
2. Upon the requirements of one of the party the agreement may be amended or dissolved upon the decision of the court only as follows:
1) when there is a material breach of the agreement by the other party;
2) in other cases which are provided in the present Code and any other legislative act or the agreement.
The significance of the breach of the agreement by one of the party shall be recognized as sufficient if it entails for the other party such a damage that it in a substantial degree loses that, on which he had the right to hope to obtain when concluding the agreement.
3. In the event of a unilateral refusal of performance of an agreement entirely or in part when such a refusal is permitted by legislative acts or the agreement of the parties, the agreement shall be respectively terminated or amended.
Article 402. Procedure for changing and terminating an agreement
1. The agreement to change or terminate an agreement shall be permitted in the same form as the agreement, unless from legislation the agreement or the provision of the custom of business turnover results otherwise.
2. A claim to change or terminate an agreement may be filed by a party to the court only after the receipt of the refusal of the other party to the proposal to amend or terminate the agreement or in the nonreceipt of the response within the deadline indicated in the proposal or established by legislation or the agreement and indicates of where it does not exist within 30 days time.
Article 403. Consequences of amending or terminating an agreement
1. When dissolving an agreement the obligations of the parties cease.
2. When changing an agreement the obligations of the parties continue to be in effect in an amended form.
3. In the case of terminating or changing an agreement, the obligation shall be deemed terminated or changed from the moment of the achievement of the agreement by the party concerning the change and termination of an agreement unless otherwise follows from the agreement of the parties or the nature of the amendment of the agreement. and in the case of changing or terminating an agreement in the traditional procedure, from the time of the court decision interring into legal force on the decision concerning the change or termination of the agreement.
4. The party shall not have the right to require the return of something which was used by them on the obligation before the time of termination or change of the agreement unless otherwise established in the law or the agreement of the parties.
5. Where the material breach of an agreement by one of the parties is the reason for the termination or change of the agreement, the other party shall have the right to claim the restitution of losses inflicted by the termination or change of the agreement.
Article 404. Change and termination of agreement upon the application of one party
An agreement may be amended or dissolved upon the application of one party in the following cases:
1) it is impossible to perform an agreement (Article 374 of the present Code);
2) violation by the other party of terms provided in legislation or the agreement concerning the quality, terms of performance and any other conditions;
3) recognition in the established procedure of the other party as bankrupt;
4) amendment or canceling of an act of a governmental body, on the basis of which the agreement was concluded;
5) in other events provided by legislation or the agreement. In the event of a unilateral amendment or termination of an agreement, the party must notify the other party thereof not later than within one month.
Article 405. Extension of an agreement
The parties shall have the right to extend the agreement for a new term. The extension of the term of the agreement shall be carried out in accordance with the rules of Article 397 hereof.