Civil-law forms of protection of the rights and legitimate interests of businessmen in the Republic of Kazakhstan

Business is an object of civil-law regulation. Norms of civil law not only regulate the legal relationships arising in the sphere of business, but also contain a number of norms aimed at protection of rights and legitimate interests of businessmen against corruption. The civil code of the Republic of Kazakhstan (General part was adopted on 27 December 1994, came into force on 1 March 1995, Special part was adopted on 1 July 1999) is the codified backbone act which is a legal basis of regulation of the whole multitude of the property and personal non-property relations developing in the conditions of market economy.

In the sphere of relations regulated by the civil legislation, businessmen have the right to commit any acts, except those forbidden by the act.

Protection of rights and legitimate interests of businessmen is the system of measures provided by the law aimed at provision of inviolability of the right, its exercise, restoration in case of violation and mitigation of consequences of violation. Article 9 of the SC of Republic of Kazakhstan defines the bodies which carry out protection of the law, remedies (ways) and order of protection: court, arbitration or intermediate courts.

It is important for entrepreneur to familiarize with Art. 2 of the Civil Code in which one of the basic principles of civil law: inadmissibility of interference of someone with private affairs is formalized. One of the meanings of this principle is prohibition to government bodies of influence on the way entrepreneurs dispose of their property, divide the profit, and use the incomes. In accordance with this principle it is also not required to receive someone’s permits, consent, provision of information, if such requirements are not directly established by law.

First of all, it is important to clarify the content of the notion of entrepreneurship. The Article 10 of the Civil Code of the Republic of Kazakhstan gives the following definition:

“Business is an initiative activity of citizens and legal entities, irrespective of

the form of ownership, directed to acquisition of a net profit by satisfaction of demand for the goods (jobs, services), based on a private property (private enterprise) or on the right of economic management of government enterprise (public enterprise). Entrepreneurial activity is carried out on behalf of, for risk and under property responsibility of the entrepreneur”.

It follows form the definition of entrepreneurial activity that economic activity is characterized by the following necessary features:

а) it is directed to acquisition of the income (profit) by production and free sale in the market of production, services, jobs;

b) it is initiative, that is it can be carried out only on the entrepreneur’s own accord in accordance with his interests and at his discretion. It is impossible to consider conduction of actions by order or direct reference of any governing bodies or persons as entrepreneurship;

c) it is carried out on the basis of full property independence of the entrepreneur. As a rule, the entrepreneur is the owner of property base, and he bears full risk of property losses and expenses possible in the course of business;

d) businessman acts in a civil circulation on his own behalf.

Secondly, the entrepreneur should study clause 3 of Art. 10 of the Civil code of the Republic of Kazakhstan where the methods of protection and support of entrepreneurs are considered:

1) possibility of conduction of entrepreneurial activity without receiving anyone’s permissions, except licensable activities.

Article 10 of the Constitution confirms the right of each citizen of the Republic of Kazakhstan to engage in entrepreneurial activity without any restrictions and permissions, except those activities where availability of special permission (license) is required. The main objective of licensing of entrepreneurial activity is restriction of such activities which can themselves, or at conduction of them in inadequate conditions violate state interests or interests of citizens.

The legislative basis of entrepreneurial licensing is the Act of Republic of Kazakhstan “On licensing” of 17 April 1995. In case of breach of conditions of issuance of a license, it can be nullified. All grounds for early termination, revocation and suspension of a license or its invalidation are determined exhaustingly by the legislative acts and must correspond strictly to them for the avoidance of expressions of corruption;

2) maximally simple registration without preliminary permission of all types of entrepreneurship within all spheres of economy at one registering body. The Act of Republic of Kazakhstan of 17 April 1995 “On state registration of legal entities and record registration of branches and representations” established general order of registration of legal entities, including those engaged in entrepreneurial activity. At registration the legitimacy of entrepreneurial activity is checked. Refusal to register with reference to inexpedience of it in the given conditions (there is no demand for goods and services, high competitiveness and etc.) is prohibited. For registration the entrepreneur-applicant should only address to one registering body. If the documents required by the act on state registration of legal entities are settled in due form, the registering body does not have right to refuse to register or demand of the appellant submission of any complementary visas, endorsements, authorizations and etc. The Article 6 of this act considers the order of state registration of legal entities.

For registration of the legal entity to registering body the application in a form established by the Ministry of Justice of the Republic of Kazakhstan is submitted, and the constitutive documents made in the state and the Russian languages, in triplicate, are attached. The statement is signed by the founder or the person authorized by founder with the attachment of the constitutive documents certified in an order established by the legislation of the Republic of Kazakhstan.

At the same time the document verifying the location of the legal entity, and also the receipt or the document confirming the payment to the budget of the charge for the state registration of legal entities is submitted to the registering body. Subjects of small business do not submit the document verifying their location. The request of any documents and data, except those provided by the law and other legislative acts, is prohibited.

The meaning of registration lies in the fact that it creates publicity conditions as through registering bodies any interested person has the right to familiarize with all materials characterizing the legal entity, except, certainly, those that are confidential or equal to the state or commercial secret. Legislative ensuring of confidentiality of a commercial secret serves as an important measure for protection of interests of businessmen (Art. 42 of SC of the Republic oа Kazakhstan). The commercial (entrepreneurial) secret is protected by the law. Order of specification of the data containing a commercial secret, means of its protection, and also the list of data which should not be a part of a commercial secret, are established by the legislation. Persons who have access to a commercial secret due to the state supervision functions, investigative or legal actions conducted by them, official position and etc., must not disclose it to other persons.

3) restriction by legislative acts of inspections of the entrepreneurial activity carried out by the state bodies.

A large number of normative legal acts regulating entrepreneurial activity and activity of bodies which carry out control and supervising functions are adopted in the Republic of Kazakhstan. Acts of Republic of Kazakhstan “On private business” of 31 January 2006, “On state legal statistics and special records” of 22 December 2003, Instruction on the record of all inspections in the activity of the business enterprises, approved by the order of the Prosecutor General of 1 March 2004 are related to them. The businessman can address to them, if they have questions concerning inspections of his activity. On the basis of one act of assignment of inspection only one inspection can be conducted. Inspection can be conducted by only that official (officials) who is specified in the act of assignment of inspection;

4) compulsory termination of entrepreneurial activity only under court decision taken on the basis provided by the legislative act.

Entrepreneurial activity can be stopped on any basis. Article 49 of SC of the Republic of Kazakhstan considers cases of liquidation of the legal entity under

court decision:

1) in case of bankruptcy;

2) in case of annulment of registration of the legal entity because of committal of violations of the legislation at its creation which have ineradicable nature;

3) systematic implementation of the activity contradicting the statutory goals of the legal entity;

4) implementation of the activity without appropriate authorization (license), or the activity prohibited by the legislative acts, or with repeated or gross violation of the legislation, including failure to provide the declaration;

5) in other cases provided by the legislation.

Used and recommended literature:

1. Гражданское право: учебник для вузов (академический курс) / ред.: М. К. Сулейменов, Ю.Г. Басин. - Алматы: КазГЮА, 2000. Т.1.

2. The Civil Code of the Republic of Kazakhstan. The General Part. The 27th December 1994 // http://online.zakon.kz/

3. Araceli T. Baviera. Civil Law Review. University of the Philippines, 2008.

4. Neal R. Bevans. Civil Law Litigation for Paralegals. Career Education. 2007.

5. J.H. Merryman, R. Pérez-Perdomo. The Civil Law Tradition, 3rd Edition. An Introduction to the Legal Systems of Europe and Latin America. Stanford University Press, 2007.

Answer the following questions using the information from this text:

1. What is civil law concerned with?

2. What is characteristic of civil law system?

3. What does the Civil Code contain?

4. How and where did the Civil law spread?

5. What is the Civil law concerned with?

6. What does the Civil law include?

7. What types of legal entities includes the Civil Code of the Republic of Kazakhstan?

8. List the items of civil rights.

9. What are the ways of civil-law forms protection of the rights and legitimate interests of businessmen in the Republic of Kazakhstan?

10. Who is the entrepreneur?

Дата добавления: 2014-10-17