Lecture 5. Administrative Law

Studies the sphere of public relations existing during organization and carrying out of state government.

Government here means leadership, direction and organization of joint activity of personnel.

So, another name of Administrative Law is governing law, or law of government.

Important feature:

Public relations regulated by Administrative law are built as –

When some of their participants have power functions and others are obliged to obey them, to carry out their legislative requirements. Participants of these relations are in legally unequal conditions – public relations regulated by norms of Administrative law are relations of authority and subordination.

Administrative legal relations are divided into:

-vertical (relations between superior and inferior bodies or between organs of state government and citizens)

-horizontal(both parties are equal, do not subordinate to each other, for instance, joint order for two ministries, or submission of a petition from citizen against state official).

Thus, Administrative Law is an aggregate of legal norms regulating public relations in the sphere of executive-order activity of bodies of state government, built on the fundamentals of power and subordination, and providing organizing work.

Sources of Administrative Law:

Legal acts of normative character regulating governing activity of state bodies.

Among: Constitution, Code of administrative offences, etc.

Lecture 6. Civil and family law (4 hours)

Civil law course consists of two main parts: general and special parts.

General part provides for such important institutes as regulation of civil rights relations; subjects of civil rights; objects of civil rights; transactions; representation and proxy; measurement of periods; the statute of limitations; ownership and other titles; general obligatory law provisions; execution of obligations; securing the execution of obligations; charges and liabilities; general contract provisions.

Special part provides for separate types of obligations such as sale and purchase; barter; donation; lease; bailment; provision of services; transportation; loans; bank servicing; custody; insurance; commission; tort law; intellectual property; heritage; international private law.

General part of Civil Code was adopted on December 27, 1994 and implemented into force on March 1, 1995 (Special part of Civil Code was adopted and implemented at the same time on July 1, 1999)

General part of Civil Code consists of three main sections: section 1 “General provisions”; section 2 “Right of ownership and other proprietary rights” and section 3 “Obligatory law”.

General part of Civil Code is a basis for civil relations and for its special part, contains general provisions with respect to separate types of obligations both set forth in special part of Civil Code and not provided for in special part of Civil Code, however, widely used in practice.

Subject of civil law is social relations regulated by the civil law norms (Article 1 of Civil Code), i.e. proprietary relations and personal non-proprietary relations, which are associated with proprietary relations.

Method of civil law is complex of means and ways, upon effect of which norms of law influence on civil relations. Civil law method is allowable method, i.e. “everything what is not prohibited is allowed”.

Leading legislative act for civil law is the RK Civil Code. Principles of civil law are basic and leading fundamentals of social relations regulated by civil law. Civil Code (Article 2) provides for the following principles: equality of participants of civil rights relations; inviolability of property; freedom of agreement; inadmissibility of arbitrary interference in somebody's private affairs; free exercise of civil rights; provision for the restitution of violated rights and their defence in the court.

Legal reality covers most life relations, i.e. sale & purchase, donations, custody, etc.

Civil law provides for answers to most questions in real life. Having known, at least, general civil rights, you will be able to defend yourself in various conflict situations. Basic knowledge of civil rights will provide you with a confidence in solving different legal cases related to yourself, your friends, relatives, etc.

Civil law is a branch of law which regulates:

Proprietary relations based on the equality of participants (for example: stuffs, money, works, services, trade marks);

Non-proprietary personal relations associated with proprietary relations (for example: life, health, honor, good name, business reputation, personal and family secret);

Personal non-proprietary relations, which are not associated with proprietary relations shall be regulated by the Civil legislation unless otherwise is provided for by the legislative acts or ensues from the essence of a personal non-proprietary relation.

Civil legislation shall apply to family relations, labor relations and relations associated with the use of the natural resources and the protection of the environment, which meet the requirements of Part 1 of Article 1 of the RK Civil Code, in the cases where those relations are not regulated respectively by legislation concerning family, labor, use of natural resources and protection of environment.

Civil legislation shall not apply to property relations which are based on the administrative or any other power subordination of one party by the other, including tax and other budget relations, except for the cases stipulated by the legislative acts.

Acts of civil legislation shall not have retroactive force and shall apply to relations which arise after their entering into force. The legal force of an act of civil legislation shall extend its effect on relations arisen prior its enactment only in the cases where it is directly stipulated therein.

With regard to relations arisen prior to enactment of a civil legislation act, it shall apply to the rights and obligations which arise only after its enactment. Relations of parties to an agreement entered into prior to the enactment of civil legislation act shall be regulated in accordance with Article 383 of Civil Code.

In the cases where the civil rights relations are not directly regulated by legislation or an agreement and there is no precedent which could be applied to such relations, those relations shall be regulated by the provisions of civil legislation, which regulate similar relations (analogy of a law – аналогия закона) provided that it does not contradict to their essence.

When it is impossible in the indicated cases to use the analogy of a law, the rights and obligations of the parties shall be defined on the basis of the common fundamentals and the essence of civil legislation and the requirement of fairness, reason and justice (analogy of laws – аналогия права).

The RK citizens mean people having citizenship of the RK. Foreign citizens mean people who are not citizens of the RK and having proof of their belonging to the citizenship of another state. Apatridesmean people who are not the RK citizens and having no proof of their belonging to the citizenship of another state.

Foreign citizens and apatrides exercise in Kazakhstan the same rights and freedoms and bear the same obligations as RK citizens unless otherwise provided for by the RK Constitution, laws and international conventions.

Legal capacity – the capacity to have civil rights and bear obligations.

Deed capacity - the capacity of a citizen by his deeds to acquire and exercise the civil rights, create for himself civil obligations and fulfill them.

The capacity of a citizen by his deeds to acquire and to exercise civil rights, to create for himself civil obligations and to fulfil them shall arise in their entire volume when the citizen reaches the age of majority, that is, upon reaching of 18 years of age.

In the case where legislative acts permit to marry prior to reaching 18 years of age, a citizen who has not reached 18 years of age shall acquire deed capacity in its entire volume from the moment of entering into marriage.

All citizens shall have equal deed capacity, unless otherwise provided for by laws.

Individuals shall have the right to engage in entrepreneurial activities without creating legal entities except for the cases provided for by laws.

State registration of individual entrepreneurs shall consist of registration as individual entrepreneur.

Legal regime of commercial legal entities shall apply to entrepreneurial activities of citizens carried out by them without creating legal entity.

Obligatory state registration shall be extended for the following individual entrepreneurs: 1) those who use a labor of workers on a permanent basis; or 2) those who have aggregate annual income in the amount of 143 tenge.

If individual entrepreneur carries out an activity which is subject of licensing then he shall obtain the license for such activity.

Legal entity shall mean an organization which:

Has on the basis of ownership right, right of business authority or right of operational management its separate assets;

Is liable for its obligations by its assets;

May in its name acquire and exercise proprietary and personal non-proprietary rights and obligations;

Can be the plaintiff and the defendant in the court;

Has independent balance-sheet or budget;

Has stamp with its name thereon.

Types of legal entities:

Commercial legal entity shall mean an organization which pursues an extraction of profits as main purpose of its activity;

Non-commercial legal entity shall mean an organization which does not extract profits as such a goal and does not allocate gained profits between its participants.

LLP shall mean a partnership organized by one or several persons (physical or legal), charter capital of which is divided on amount of shares (размер долей) ascertained by the foundations documents; LLP`s participants shall not be liable for obligations of LLP and shall bear risk of damages related to the LLP`s activities only within amount of contributions made by them there in to.

LLP shall be deemed as established for indefinite period of time unless foundation documents provide that it is created for definite period of time or until definite objective is achieved.

LLP is a legal entity. LLP shall bear liable for its obligations by all property belonged to the LLP. LLP shall not be liable for obligations of its participants.

Charter Capital of LLP shall be formed by amalgamation of contributions made by participants.

Charter capital shall not be less than 100 monthly calculation indexes.

Contribution to the charter capital can be done in various forms: money, securities, property, proprietary rights, including land use rights and rights on results of intellectual property and other property with exclusions stipulated by laws.

Contribution to the charter capital can not be done in the form of personal non-proprietary rights and other intangible benefits.

Charter capital of LLP can be decreased or increased as provided for by the RK Law on Limited and Additional Liability Partnerships (the “LLP Law”).

JSC can be organized by individuals and/or legal entities decided on its creation. JSC can be organized by one person (physical or legal).

State bodies and state institutions can not be founders of JSC except the RK Government, local executive bodies and the RK National Bank.

Founders of JSC shall be solidary responsible for expenses in connection with creation of JSC which may arise before its state registration. These expenses can be reimbursed by JSC only if they will be subsequently approved by the General Meeting of Shareholders of JSC.

JSC can be created under decision of its founders (foundation meeting) or decision of its sole founder.

Foundation documents of JSC are charter and foundation agreement, or charter and decision of its sole founder. Effect of foundation agreement (decision of sole founder) shall expire on a date of state registration of emission of declared shares. Foundation documents shall be notarized otherwise they will not have legal force.

The following transactions must be entered into in writing:

those which are carried out in the course of entrepreneurial activities, except for transactions which are fulfilled upon their performance, unless it is otherwise stipulated in legislation for individual types of transactions, or it is ensued from the customs of the business practice;

for the amount of more than 100 MCI, except for the transactions which are fulfilled upon their performance;

in any other cases which are stipulated in legislation or the agreement of the parties.

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